D.R. Trikha vs Union Territory (Chandigarh Administration) and Another

M.R. Agnihotri and K.P. Bhandari, JJ.—The grievance of the petitioner of the petitioner is that even though a High Income Group category house at Chandigarh was allotted to him by the Administrator, Union Territory, Chandigarh, and a communication to that effect, was issued by the Chairman, Chandigarh Housing Board, to the petitioner on 8th June, 1990, yet till today possession of the house allotted has not been delivered to him Even the written request made by the petitioner on 29th October, 1990, for intimating the initial amount required to be deposited by him has not been attended to. It is also contended by the petitioner that a number of other persons who ware allotted houses/flats out of the discretionary quota, like the petitioner, have since been allowed to take possession of the premises allotted.

In the written statement filed by respondent No. 2-Housing Board Chandigarh, it has been pleaded that in fact the communication issued by the Chairman of the respondent Board on 8th June, 1991, intimating to the petitioner the decision of the Administrator, Union Territory, Chandigarh, regarding allotment of the house did not amount to an allotment letter, but it was only in the nature of an intimation regarding decision of allotment. It has been further pleaded that after issuing the letter conveying the decision of the respondent Board to allot the house in question to the petitioner on 5-9-1990, the provisions of Regulation 26 of the Chandigarh Housing Board (allotment, ''Management and Sale of Tenements) Regulations, 1579, have been air landed. According to the stand in she written statement, the petitioner is not entitled for allotment of a House of the c is, discretionary quota according to the amended regulation.

After hearing the learned counsel for the parties, we find that the stand taken by the respondents is wholly untenable in law. The power to frame Regulations is conferred by Section 24 of the Haryana Housing Board Act, 197'', as extended to the Union Territory of Chandigarh. A reading of the provisions of Section 74 of the Act clearly shows that no power has been conferred on the Board to frame regulations with retrospective effect.

It has been authoritatively settled by the Supreme Court in Hukam Chand etc. Vs. Union of India (UOI) and Others, as under :-

''"Perusal of Section 40 shows that although the power of making rules to carry out the purposes of the Act has been conferred upon the Central Government, there is no provision in toe section which may either expressly or by necessary implication show that the Central Government has been vested with the power to make rules with retrospective effect. As it is Section 40 of the Act which empowers the Central Government to make rules, the rules would have to conform to that section, The extent and amplitude of the rule making power would depend upon and be governed by the language of the section If a particular rule were not to fall within the ambit and purview of the section, the Central Government in such event, would have no power to make that rule . Likewise, if there was nothing in the language of Section 40 to empower the Central Government either expressly or by necessary implication, to make a rule retrospectively, the Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of (he rules have bean fulfilled (See Caries on Statute Law p. 297 Sixth Edition)"

In view of the above decision of the Supreme Court, the amendment in--the Regulations'' cannot operate retrospectively and it cannot affect. the pending cases. The eligibility of the petitioner was to be seen at the time of deciding his application and once he was found eligible for such, an allotment, according to, the Regulations in force at that time, and necessary decision of the Chandigarh Housing Board was communicated to him, any subsequent amendment to the Regulations becomes inapplicable to the case of the petitioner.

It has been setlled by now by Hon''ble the Supreme Court, that even in the matter of grant of discretionary benefits like, quota, permits, licences and other largesses etc. the policy of pick and choose and. changes of administrative decisions are also to be tested at the touch stone of Article 14 of the Constitution (See Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . In view of that, the decisions which have already been arrived at and communicated to the subjects, cannot be changed to their disadvantage without any cogent. reasons, . .-

Consequently, we allow this writ petition'' and direct the respondents to issue Co the petitioner a formal order of allotment of a High income Group category house, already decided to be allotted to him, by permitting him to deposit the initial amount for the purpose of the aforesaid allotment, within one month from today.