Full Judgment Text
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CASE NO.:
Appeal (civil) 5834 of 1998
PETITIONER:
CHANDIGARH HOUSING BOARD AND ANOTHER
Vs.
RESPONDENT:
GURMIT SINGH
DATE OF JUDGMENT: 09/01/2002
BENCH:
V.N. Khare & B.N. Agrawal
JUDGMENT:
V.N. KHARE, J.
The appellant herein, the Chandigarh Housing Board (hereinafter
referred to as ’the Board’) is constituted and established under the provisions
of the Haryana Housing Board Act (hereinafter referred to as ’the Act’) as
extended to the Union territory of Chandigarh. One of the functions,
amongst others, assigned to the Board is to develop land and construct
houses and flats and sell out them under a scheme to the general public. The
Board in exercise of the power conferred by Section 74 of the Act has made
Regulations known as " Chandigarh Housing Board (Allotment,
Management and Sale of Tenaments) Regulations, 1976 (hereinafter referred
to as the Regulations). In the year 1986, the Board floated a housing scheme
for general public, for allotment of category I, II and III flats. The eligibility
conditions as per terms and conditions laid down in the brochure were that
the applicant should be either a domicile of Union Territory of Chandigarh
or should have been a bona fide resident of Union Territory of Chandigarh
for a period of at least 3 years on the date of submitting the application. On
3.3.87, the respondent herein, submitted an application to the Board for
allotment of category I flat. It is alleged that in the said application form, the
respondent did not furnish any information against the relevant column No.
13 regarding his being a bona fide resident of Chandigarh and his period of
stay in Chandigarh. It is also alleged that in the sworn application form, the
respondent did not state since when he was a bona fide resident of
Chandigarh. However, in column No. 12 of the application form, the
respondent stated that he is a domicile of Union Territory of Chandigarh. It
is further alleged that on 20.10.1989 the Board on the premise that the
respondent was a domicile of Union Territory of Chandigarh allotted a
second floor in the category I flats. Subsequently, on 1.7.91, the Board
asked the respondent to submit the domicile certificate or any other proof in
that regard. In response to the said letter, the respondent, on 24.7.91
submitted a residential certificate dated 18.7.91. It is not disputed that the
respondent did not furnish the certificate to the effect that he is a domicile of
Union Territory of Chandigarh and, therefore, the Board, on 30.9.91 again
asked the respondent to furnish the particulars to determine his eligibility for
the allotment of a flat. The respondent, in response to the said letter
furnished documents i.e. copy of certificate showing his having passed 10 +
2 examination from St. Columbus’ School, New Delhi in 1982, copy of
possession certificate dated 20.10.74 of an Industrial Plot No. 182/14,
Industrial Area, Phase I, Chandigarh allotted to M/s. Freezking Industries
Pvt. Ltd. wherein the respondent claimed to have shares and also various
income tax assessment orders beginning for the financial years 1986-87 to
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1990-91. It further appears that the Board was still not satisfied with the
eligibility of the respondent for allotment of the flat and, therefore, the
Board on 17.11.92 again wrote to the respondent to furnish further
information and documents to satisfy his eligibility with regard to his
residence. The respondent, in response to the said letter did not furnish any
document to prove that he is a domicile of Union Territory of Chandigarh.
Under such circumstances, the Board on 17.11.93 issued a show cause
notice to the respondent calling upon him as to why the allotment of flat in
his favour be not cancelled as he failed to satisfy the eligibility condition of
being a domicile of Union Territory of Chandigarh. In between time, on
25.9.96, the respondent filed a writ petition under Article 226 of the
Constitution before the Punjab & Haryana High Court for direction to the
appellant Board to take a decision within three months about the handing
over the possession of the flat in question to him. The High Court issued a
direction as prayed for, and in compliance thereof, the Board after giving
opportunity to the respondent, on 16.5.97, cancelled the allotment of the flat.
The respondent, thereafter, filed another writ petition before the High Court
challenging the order of cancellation of allotment of the flat. The appellants
herein filed a counter affidavit/writ statement and contested the writ petition.
The High Court was of the view that since the respondent has already
furnished a residential certificate to the effect that he is a bonafide resident
of Chandigarh for last more than three years, and further the respondent
being an Indian citizen, is a domicile of Union Territory Chandigarh and, as
such, the order passed by the Board canceling the allotment of the flat was
erroneous. In that view of the matter, the writ petition was allowed and the
order canceling the allotment of the flat was set aside. It is against the said
judgment and order of the High Court the Board has preferred this appeal.
Shri L.K. Pandey, learned counsel appearing for the appellant Board,
urged that once the respondent opted for an allotment of the flat on the
elilgibility criteria of being domicile of Union Territory Chandigarh in the
application form submitted by him, it was not open to him to justify under
the eligibility criteria that he is bonafide resident of Chandigarh for last three
years and, therefore, the view taken by the High Court was erroneous. It
was also urged that the decision of this Court in Dr. Pradeep Jain and ors.
etc. vs. Union of India and ors. 1984 (3) SCC 654 has no application
inasmuch as the said decision runs counter to the case of the respondent and,
therefore, the view taken by the High Court was erroneous. However, Shri
M.N. Rao, learned senior counsel appearing on behalf of the respondent
made an effort to support the judgment of the High Court on the strength of
the decision in Dr. Pradeep Jain’s case (supra).
Coming to the first argument of learned counsel for the appellant, it is
necessary to refer to certain Regulations which are relevant to the present
controversy. Regulation 2 (15) defines eligible persons, which runs thus:
" 2(15) ’Eligible Person" means a person who is
entitled to the purchase of property in accordance
with the provisions of the scheme and these
regulations."
Regulation 6 provide for eligibility of allotment, which runs thus:
" (1) A dwelling unit or flat in the Housing Estates
of the Board shall be allotted only to such person
who or his wife/her husband or any of his/her
dependent relations including unmarried children
does not own on free-hold or lease-hold or on
here-purchase basis, a residential plot or house in
the Union Territory of Chandigarh or in any of the
Urban Estates of Mohali or Panchkula. Similarly
persons who have acquired a house/residential site
anywhere in India through Government/Semi-
Government/Municipal Committee/Corporation/
Improvement Trust at concessional rate in their
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name or in the name of any dependent member of
their family will not be eligible to apply to the
Board for allotment of a dwelling unit or flat.
Subject to the above provisions, the applicant
should be a domicile of U.T. of Chandigarh or
should have been a bona fide resident of U T of
Chandigarh for a period of at least three years on
the date of submitting the application.
(2) The applicant shall furnish an affidavit in
the prescribed form with regard to his eligibility
along with the application. In the event of the
affidavit being found false at any stage, the Board
shall be entitled to cancel the registration or the
allotment of dwelling unit or flat as the case may
be, and to forfeit the deposit received with the
application and all the payments made to the Board
thereafter.
(3) The Board shall have the right to impose any
additional condition of eligibility as may be
determined and notified from time to time."
The aforesaid Regulations show that any person who is either a
domicile of Union Territory of Chandigarh or is a bona fide resident of
Union Territory of Chandigarh for a period of at least three years on the date
of submitting an application, is qualified to apply for allotment of flat under
the scheme floated by the Board. Under sub-Regulation (2) of Regulation 6,
an applicant for allotment of a flat is required to furnish an affidavit in the
prescribed form with regard to his eligibility along with the application. The
said Regulation further provides that in the event of the affidavit being found
false at any stage, the Board is entitled to cancel the registration or
cancellation of the dwelling unit of the flat, as the case may be, and to forfeit
the money received with the application and all the payments made to the
Board thereafter. Columns 12 and 13 of the application form of registration
of intending purchasers of flats run as under:
" 12. Whether a domicile of Union Territory of
Chandigarh. Yes.
13. Whether a bona fide resident of Chandigarh.
If so, give period of stay in U.T. of Chandigarh i.e.
from ..to ."
The respondent in Col. 12 stated ’yes’, meaning thereby that he is a domicile
of U.T. of Chandigarh. Whereas Col. 13 was left blank. In the
affidavit/declaration, at the foot of the application form at column no.(iii),
the respondent did not state as to since when he was a bona fide resident of
U.T. of Chandigarh. On the other hand, he ticked col. (iv) indicating that he
was a domicile of U.T. of Chandigarh. The aforesaid application form, as
filled in by the respondent shows that he was claiming to be eligible for
allotment of flat on the basis that he was a domicile of U.T. of Chandigarh.
The Board repeatedly asked the respondent to furnish the certificate to the
effect that he was a domicile of U.T. of Chandigarh which he failed to
furnish. The only allegation made by him was that he has applied to the
competent authority/Sub-Divisional Magistrate for issue of domicile
certificate, but the same was not issued to him and, therefore, he relied upon
the residential certificate issued by the Sub-Divisional Magistrate. The
respondent having unequivocally claimed to be a domicile of U.T. of
Chandigarh for satisfying the eligibility criteria, it was not open to him to
fall back on the second eligibility criteria of being a bonafide resident of
Chandigarh for last more than three years. The High Court fell in error in
overlooking this aspect of the matter while setting aside the order passed by
the Board canceling the allotment of the flat in favour of the respondent.
We, therefore, find that the view taken by the High Court was erroneous.
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So far as the second argument is concerned, the question that arises is
what meaning is required to be assigned to the expression ’domicile’ of U.T.
of Chandigarh. In Whicker vs. Hume [ (1859) 28 I.J. Ch. 396, 400) ] it was
held thus:
"Domicile meant permanent home, and if that was
not understood by itself no illustration could help
to make it intelligible."
Dicey on Conflict of Laws, stated thus:
" The domicile of origin, though received at birth,
need not be either the country in which the infant
is born, or the country in which his parents are
residing, or the country to which his father belongs
by race or allegiance, or the country of the infant’s
nationality."
Udny vs. Udny [1869 L.R. 1 Sc.& Div.441, 457 ], it was held thus:
"The law of England, and of almost all civilised
countries, ascribes to each individual at his birth
two distinct legal statuses or conditions: one by
virtue of which he becomes the subject of some
particular country binding him by the tie of
national allegiance, and which may be called his
political status, another by virtue of which he has
ascribed to him the character of a citizen of some
particular country and as such is possessed of
certain municipal rights, and subject to certain
obligations, which latter character is the civil status
or condition of the individual, and may be quite
different from his political status. The political
status may depend on different laws in different
countries; one single principle, namely, that of
domicile, which is the criterion established by law
for the purpose of determining civil status. For it
is on this basis that the personal rights of the party,
that is to say, the law which determines his
majority or minority, his marriage, succession,
testacy ort intestacy, must depend."
In D.P. Joshi vs. The State of Madhya Bharat and another 1955 (1)
SCR 1215, it was held that the expression ’domicile of a person’ meant his
permanent home. In Dr. Pradeep Jain’s case (supra), it was held that in
view of Article 5 of the Constitution, every person who is a domicile in the
union territory of India is a citizen of India and a citizen of India could be a
domicile of any State forming part of India. However, this Court in Dr.
Pradeep Jain’s case (supra) brought a distinction between the technical
meaning of the expression ’domicile’ and the loose or popular meaning of
the expression ’domicile’ and in that context, this Court held that if a person
is residing permanently or indefinitely in a particular state he would be
domicile of that State in popular or loose sense.
A perusal of Regulation 6 shows that one of the eligibility criteria for
submitting an application for allotment of flat is that the applicant should be
domicile of union territory of Chandigarh. The expression ’domicile’
employed in Regulation 6 has not been used in technical sense, as referred to
in Article 5 of the Constitution or as stated by this Court in the context of
Article 5 of the Constitution in Dr. Pradeep Jain’s case (supra). The word
’domicile’ in Regulation 6 has been employed in popular or loose sense in
contradiction to the words "bonafide resident of Chandigarh for a period of
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at least three years". The popular and loose meaning of the expression
’domicile’ in regulation 6 is permanent home or intended to live
permanently or indefinitely within the Union Territory of Chandigarh. We
are, therefore, required to assign the meaning of the expression ’domicile’ in
regulation 6 not in technical sense in which it is used in private international
law but what is understood in popular or loose sense. Applying the popular
meaning of the expression ’Domicile’ it means a person must be having
permanent home in Chandigarh or he being there for years with the intention
to live permanently or indefinitely.
We have already noticed that the respondent had applied for
allotment of flat on the premise that he being a domicile of U.T. of
Chandigarh, is eligible to apply for allotment of the flat and he failed to
furnish such a certificate to the Board. The respondent did not apply for
allotment under the eligibility criteria of being a bonafide resident of U.T.
of Chandigarh for the last three years and, therefore, the respondent was not
eligible for allotment of the flat and the Board, therefore, was justified in
canceling the allotment of flat in his favour. The High Court fell in error in
holding that in view of Dr. Pradeep Jain’s case, the respondent being citizen
of India is a domicile of Union Territory of Chandigarh.
For the aforesaid reasons, we are of the view that this appeal deserves
to succeed.
Before we part with the case, we would like to observe that the
respondent has alleged that he applied to the competent authority or the Sub-
Divisional Magistrate for issue of domicile certificate, but the same was not
issued to him and, therefore, he could not furnish the same before the Board.
Under such circumstances we direct that if the respondent approaches the
competent authority or the Sub-Divisional Magistrate for issue of a domicile
certificate within one month from issue of certified copy of this judgment,
the competent authority after due enquiry and also after hearing the Board
shall consider the application of the respondent. If it is found that the
respondent is a domicile of U.T. of Chandigarh, the concerned authority
shall issue a domicile certificate to him. In the event the competent
authority issues a domicile certificate to the respondent, the appellant Board
shall re-consider the matter again.
For the aforesaid reasons, the judgment and order of the High Court
under challenge is set aside. The appeal is allowed. No costs.
.J.
(V.N.Khare)
.J.
(B. N. Agrawal)
January 09, 2002