Housing Board Haryana vs Smt. Raj Rani and Others

G.C. Garg, J.—Respondent No. 1 applied for allotment of a house under the Economically Weaker Section Scheme Along with the requisite form, she furnished an affidavit declaring her monthly family income to be Rs. 250/-. She was accordingly allotted House bearing No. 874 measuring 40 square yards in Housing Board Colony at Karnal at a tentative price of Rs. 8000/- on the basis of execution of a Hire Purchase Tenancy Agreement. At the time of delivery of possession of the house, respondent 1 also furnished a certificate issued by the Assistant Engineer, Tubewell Corporation, Sub Division-11, N.I.T.C. Karnal to the effect that her husband had not been living with her for the last six or seven years and her. monthly income was Rs. 300/- approximately in November, 1977. The petitionerBoard on having come to know that respondent-1 had mis-stated the fact of her monthly family income, inasmuch as she had not included the income of her husband at the time of registration, issued notice to her and ultimately got a regular inquiry conducted in the matter. Stand of respondent-1 before the Inquiry Officer was that she had been living separately from her husband and therefore, she did not include his income while furnishing the information regarding her monthly family income. The Inquiry Officer, however came to the conclusion that it was clearly established on record that respondent-1 had intentionally not clubbed the income of her husband in her own income in order to keep her income within the prescribed limit for the allotment of a house under the Economically Weaker Section Scheme. After the inquiry, the competent authority having come to the conclusion that respondent-1 had contravened the provisions of Clause 2(u) of the Hire Purchase Tenancy Agreement executed by her on 16.6.1980 in favour of the petitioner Board by giving false statement regarding her total monthly family income at the time of registration, cancelled the allotment of the house in question and also forfeited the amount of Rs. 4168/- deposited by respondent-1, by order No. 20 dated 9.1.1984. The said order was passed by respondent-2 in exercise of his powers conferred u/s 51(1) of the Haryana Housing Board Act, 1971. Respondent 1 was consequently directed to vacate the premises in question. Feeling aggrieved by the aforesaid order dated 9.1.1984, Annexure P1, respondent-1 preferred appeal before the District Judge, Karnal who by his order dated 5.5.1984, Annexure P2 upheld the order Annexure PI as regards the direction to respondent-1 to vacate the house in question. Learned District Judge, however, set aside that part of the order whereby forfeiture of the amount deposited by respondent-1 was ordered. The petitioner-Board has thus impugned the order Annexure P2, in the present writ petition, apparently the latter part thereof whereby the forfeiture of the amount was set aside.

The present writ petition was admitted to regular hearing in the year 1984, but no written statement seems to have been filed nor is any available on the record. Even the actual date notice ordered to be issued to respondent-1 on 4.10.1996 was not received back served or otherwise.

Order Annexure P2 has been challenged primarily on the ground that the relevant clause of the agreement could not be bifurcated into two parts and once the first part of the said Clause 2(u) of the Hire Purchase Tenancy Agreement was held to be valid and binding by the learned District Judge, no departure from the latter part, which provides the forfeiture of hire-purchase deposit, could be made.

Learned counsel for the petitioner re-iterated the contentions as set out in the writ petition and submitted that the part of the impugned order, Annexure P2 setting aside the forfeiture of the amount was violative of the provisions of the Haryana Housing Board Act, 1971 and the Rules and Regulations framed thereunder.

Learned District Judge, while upholding the order Annexure P1, inasmuch it related to the direction to respondent-1 to vacate the house in question, also considered the latter aspect regarding direction qua forfeiture of the hire-purchase deposit and having regard to all the circumstances of the case, he observed as under-

"However, I feel that impugned order is little harsh so far as besides ordering the eviction of the appellant and taking possession of the house, the forfeiture of the amount deposited by her has also been directed. Sure the appellant has miserably failed to prove that at the time of registration she was separate from her husband and therefore, it is evident on the record that she had intentionally suppressed the income of her husband while declaring her monthly family income and hence she cannot save herself from the rigour of Clause 2(u) of the agreement, but gently I must remind myself that it is not Shylock''s pound of flesh that is sought. It is justice to the defaulter too and local justice untampered with mercy that the cost is dispensed. 1, therefore, feel that end of justice will be squarely met if the order of eviction and dispossession is kept intact but the order of forfeiture of hire purchase deposit to the owner Board is set aside."

From the observations made by the learned District judge as noticed above, it is crystal clear that the order regarding direction for forfeiture of the amount has been set aside on equity and the principle of natural justice. True that if the allottee of the house had included the income of her husband, she would not have been eligible for allotment of the house meant for the Economically Weaker Section. The fact of concealment of income by respondent No. 1 having come to the notice of the petitioner Board, it appointed an Inquiry Officer to find out the truthfulness of the stand taken by her. It was concluded by the Inquiry Officer that the story put forward by respondent No. 1 that she was living separately from her husband and, therefore, she did not include his income in her monthly family income, was an after-thought because if she had done so, she would not have been eligible to apply for the house. Respondent No. 1 while replying to the notice calling upon her to explain her position regarding particulars of her monthly family income, had categorically submitted that she was, an illiterate and had no intention to conceal anything. She specifically stated that since she was living separately from her husband, therefore, she did not include his income in her monthly family income. In any case, this part of the order is not in dispute. The only question is whether the learned District Judge was justified in setting aside the order of forfeiture of the amount. Having regard to the facts of this case and the present being a solitary instance of the kind and the amount sought to be forfeited being a petty amount, I see no ground to interfere with the order passed by the District Judge in exercise of jurisdiction under Articles 226/227 of the Constitution of India especially when the allotment of the house has been cancelled and dispossession of respondent No. 1 has been ordered and respondent No. 1 is a poor lady.

In view of the above, this writ petition is dismissed but with no order as to costs. This will, however, not be taken as a precedent for future.