Punjab and Haryana High Court Advocates Cooperative House Building Society Ltd. vs Union Territory

R.L. Anand, J.—Punjab and Haryana High Court Advocates'' Cooperative House Building Society Ltd., (hereinafter called "the Society") has filed the present writ petition under Articles 226/227 of the Constitution of India praying for the issuance of a writ in the nature of certiorari quashing the Clause 6(i) of the Chandigarh Allotment of Land to Cooperative House Building Societies Scheme, 1991. Annexure P- 1, as far as it debars the Advocates practising in the High Court who are residing at Mohali and Panchkula from allotment of land, being ultra vires the provisions of Article 14 of the Constitution of India and directions have also been sought from this Court that respondents be directed to consider the names of the all those members of the society whose names have not been cleared by the screening committee on the ground that they are the residents of either Panchkula or Mohali and to accept their applications for the allotment of the land in accordance with the provisions of the Scheme Annexure P- 1. Further, it has been prayed that the applications of those members whose names have been illegally omitted or deleted by the screening committee constituted by the Chandigarh Administration be also considered again for allotment of land. Also it was prayed that the directions be issued to the respondents to allot further land to the petitioner society for accommodating such members of the society.

It was averred by the petitioner society that it is a registered one ,with respondent No.3, Registrar, Cooperative Societies, U.T. Administration, Chandigarh since 1972 under the Punjab Cooperative Societies Act, 1961. As per the bye-laws of the society the membership of the society is open to the Advocates only who are practising in the Punjab and Haryana High Court at Chandigarh. The Chandigarh Administration (hereinafter called ''the Administration'') respondent No. 1, in the past allotted land to the various cooperative societies. 76 ten marlas plots were given to the petitioner society in the year 1985 in accordance with the provisions of Chandigarh Allotment of Sites to Cooperative House Building Societies, 1979. The said scheme was repealed and a new scheme was formulated in the year 1991 which is Annexure P- 1. This scheme was framed to promote group housing with a view to promote private housing and optimum utilisation of land by constructing rnulti-storeyed structures for the members of various Cooperative House Building Societies in the Union Territory, Chandigarh. According to the petitioner, Clause 6 of 1991 Scheme shows that each member of the society should be a bona fide resident of Union Territory, Chandigarh for atleast two years on the date of the allotment of land to the society. Further Clause 6(ii) and (iii) provide for the eligibility of the Central/State U.T. Government Employees or the Corporation owned or controlled by any of these Governments. In their case, residence at Chandigarh for two years is not necessary., Such Government servants either working or retired are merely required to be either stationed at Chandigarh. Even those employees who had served in the past at Chandigarh without mentioning any minimum period of stay at Chandigarh are also eligible for the allotment. The names of some of the members of the society were not included in the list on the ground that they are not the bona fide residents of Chandigarh for the last two years before the registration of the society, as a result of which, the office-bears of the petitioner-society met the respondents a number of times and made the representation. However, they were informed that the names of the members have been omitted in some cases due to inadvertence and in some case because the members were not residing at Chandigarh but were residing at Panchkula or Mohali. It was stated to the authority that since there was no availability of proper accommodation to the Advocates and coupled with the fact that the rents in Chandigarh are very high and it compelled the number of Advocates to shift to Mohali or Panchkula but their principal place of business is the High Court which is situated in Chandigarh. Moreover, after the issuance of the screening lists some of the members of the society have shifted from Mohali, Panchkula to Chandigarh but before the date of the allotment of the land to the society on 4.6.1993 and as such they are entitled to be considered in the zone of consideration. Respondent No.5 wrote a letter to the President of the society to send applications of eligible members for allotment of land for construction of multi-storeyed structures only out of all those members whose names have been cleared by the screening committee. The society submitted a list of 236 members. According to the petitioner, S/Shri A.K. Sood and A.P.S. Deol, Advocates, submitted their applications duly completed in all respects but due to inadvertence their names could not be included in the list, which was sent to the respondents. It is further alleged by the petitioner that when 76 ten Marlas plot were allotted to the society in the year 1985 for making allotment to its members some of the members had been living at Mohali or Panchkula. In these circumstances, the other members of the society who had been residing at Mohali and Panchkula could not be discriminated. With the above broad allegations, the petitioner-society has made the prayer for the allotment of the land to the society for the further allotment to its members.

Notice of the writ petition was given to the respondents. A joint written statement was filed by respondents No.3 and 4. According to these respondents the membership of the society can be sought by the Advocate as well as the Judges of the Punjab and Haryana High Court at Chandigarh. The qualification for becoming a member of the society is as per Clause 5 of the bye-laws of the society. The membership of the society shall consist of the persons who join in the application for the registration and the persons admitted in accordance with these bye-laws. Any person who wants to become a member of the society should be a resident of Chandigarh and also a member of the Punjab and Haryana High Court Bar Association and mainly practices in the High Court provided that this clause shall not operate to debar a Judge or Ex-Judge of the Punjab and Haryana High Court from becoming a member of the society. These respondents stated that Chandigarh Administration had formulated a scheme known as Chandigarh Allotment of Land to the Co-operative House Building Societies Scheme, 1991 as per notification dated 28.5.1991. As per Rule 6(i) the members who are bona fide residents of U.T. Chandigarh and are residing therein atleast for the last two years from the date of allotment of land to the society are eligible. Thus, in order to become eligible as member under the Scheme he must be a resident of U.T. Chandigarh for the last two years from the date of allotment of land to the society. The case of the Central/States, Union Territory, Government Employees stands on a different footing. The screening committee examined all the papers submitted by the petitioner society and names of the eligible members were forwarded to the respondent-Housing Board for further necessary action for the allotment of the land to the petitioner society. No illegality was committed by the screening committee while screening the papers. The members who did not fulfil the, conditions were not included in the list of eligible members and the action of the screening committee in that regard deserves to be upheld. It was further stated by these respondents that Joint Registrar Cooperative Societies wrote a letter dated 15.9.93 to all the societies regarding the screening of the left out members with a further direction to the societies to present the case of ineligible members before the screening committee along with documentary proof. Thereafter, the meeting of the screening committee took place. Some persons were found to be ineligible on account of the reasons given against each of the names of these members. Some members, however, were found to be eligible. The Board allotted some land. The names of those persons who were not eligible were not considered for allotment. The name of Shri A.K. Sood, Advocate had been cleared but the name of Shri A.P.S. Deol could not be cleared since he did not file the necessary affidavit. With the above broad defence, it was prayed that the writ petition be dismissed.

In support of its case the Society has placed on record Annexure P.1 to P. 10. Similarly, the answering respondents placed on record the document Annexure R-1.

A re-joinder was filed by the petitioner-society in which it reiterated its pleadings and averments made in the writ petition by denying those of the written statement. With regard to Shri Deol, it has been submitted by the petitioner that Mr. Deol submitted his affidavit with the society on 11.3.1991 and due to inadvertence that affidavit was misplaced in the office of the petitioner society and due to that it could not be sent to the Registrar, Cooperative Societies. The affidavit was duly attested by Shri P.S. Teji, the then Assistant Advocate General, Punjab.

I have heard Shri G.S. Bal, Advocate, on behalf of the petitioner and Shri Ashok Aggarwal, Senior Advocate appearing on behalf of the respondents and with their assistance, have gone through the record of this case.

The point which survives for determination in this case is whether Clause 6(i) of the Notification dated 28.5.1991 Annexure P- 1 can be held to be violative of Article 14 of the Constitution or not. The learned counsel appearing on behalf of the petitioner submitted that this Clause 6(i) is violative of Article 14 much less discriminatory if it is read in conjunction with Clause 6(3) and in the light of the proviso which has been added to Clause 6 of the said Notification.

On the contrary, the learned counsel appearing on behalf of the respondents submitted that Notification P-l was in the shape of a concessional scheme and it did not confer any right to the society and as such the society has no jurisdiction to invoke the powers of the Constitution under Article 226/227 of the Constitution.

I do not agree with the counsel appearing on behalf of the respondents that the petitioner society has no right to give challenge to P-l even if it is a concessional scheme. It cannot be lost sight that through this notification some guidelines have been formulated by the respondents which lay out the eligibility plan for becoming a member of the society and such guidelines cannot be violative to the Constitution but this Court is to further scrutinise whether the Clause 6 of the notification which deals with the eligibility is violative and the answer of this Court in the negative . Clause 6 can be quoted in the following terms:-

"Eligibility.- A Society may be considered eligible for allotment of land if it is duly registered with the Registrar Co-operative Societies, Union Territory, Chandigarh functioning properly, having sufficient funds/sources to pay the premium, to undertake the construction work to complete it in a stipulated period and that each of its members fulfills the following condition:-

i) He is a bona fide resident of the Union Territory of Chandigarh and should be residing in Union Territory Chandigarh at least for the last two years on the date of allotment of land to the Society.

ii) He is an employee of the Central Govt./Corporation owned or controlled by Central Government stationed at Chandigarh on the date of notification of Scheme or has served in the past at Chandigarh; or

iii) He is employee of the Union Territory Administration or the State of Punjab and Haryana or any Corporation owned or controlled by Union Territory or State Governments referred to above and is either serving at Chandigarh on the date of notification of the Scheme or has served in the past; or

iv) He is retired from the Government or Corporation referred to at (ii) and (iii) above and residing at Chandigarh.

An applicant member may be eligible for allotment of dwelling unit in accordance with his monthly income i.e. one dwelling unit out of the dwelling units constructed per acre as per category given below:-

A) (1) 40 Dwelling units per acre Category ''A''

(2) 50 Dwelling units per acre Category ''B''

(3) 60 Dwelling Units per acre Category ''C (b) Income Group category for which eligible.

Members having monthly income of Rs.5000/-and above "A"

Members having monthly income of Rs.2001 to 5000/- "B"

Member having monthly income of upto Rs.2000/- "C"

Provided that no society shall be eligible for allotment of a site under this scheme if any of its members, the spouses or dependent children already owns, either on free hold, lease-hold or hire purchase basis, a dwelling unit or a residential house/site/flat at Chandigarh, Manimajra, Panchkula and S.A.S. Nagar (Mohali).

Provided further that not more than one member of family shall be a member of any such Society and not more than one dwelling unit shall be allotted to one family.

Provided further that no individual/society shall part with the possession of the land or dwelling unit before the expiry of at least 5 years from the date of allotment".

The reading of the above Rule would show that it is mandatory on behalf of the member of the society to fulfil the following conditions that he is a bona fide resident of the Union Territory, Chandigarh and should be residing in Union Territory, Chandigarh at least for two years on the date of the allotment of the land to the society. There is a purpose for this. If the member of the society is not a bona fide resident of Chandigarh and is not residing for the last two year prior to the date of the allotment of the land to the society the case of such a member should not be considered for the allotment of land of the society for further allotment to the member. We all known that under the Advocates Act, there is no bar on the part of a candidate who secure his LL.B degree to become a member of more than one Bar. a person can be member of Kharar Bar, Patiala Bar, Ludhiana Bar and he can still be a member of the Bar of Punjab and Haryana High Court. The notification was floated keeping in view that the applicant member of a society must be a bona fide resident of the Chandigarh and he should be a resident of Chandigarh for the last two years before the allotment of the land to the society, Residence does not mean a flying visit. The applicant must actually reside in Chandigarh and must earn his bread and butter in Chandigarh and his residence must be not less than two years before the date of the allotment of the land. Any other interpretation can lead to unwanted results. We all known that the strength of the lawyers runs into thousands in the State of Punjab, Haryana and Chandigarh. The lawyers working in the Subordinate Courts also appear in the High Court in various cases either independently or as assisting lawyers or as instructing lawyers. It is, therefore, that on account of financial constrains, one may not be in a position to afford the expenditure of Chandigarh and he may be residing at Panchkula, Manimajra or Mohali or Kharar. nevertheless those persons cannot be held to be a bona fide residents of Union Territory Chandigarh though they may be coming to Chandigarh off and on or daily in connection with their bread and butter or for earning their livelihood. The employees of the Government or the Corporation is a class separate in itself and, therefore, it cannot be said that the members of the petitioner society have been discriminated. Even the proviso which has been added to Clause 8 is not illegal because it lays down that no society is eligible for the allotment of land for its members if such members already own and possess either freehold, leasehold or hire purchase basis a dwelling unit or a residential house/site/flat at Chandigarh, Manimajra, Panchkula or Mohali. The object is very laudable and clear cut. Site is to be given to the needy and not to the greedy. A greedy member of the society has no place to get a concessional plot or land which may be allotted to the society. In this regard, it cannot be said as argued by the learned counsel for the petitioner, that a double yardstick has been adopted by the Chandigarh Housing Board that it is treating Chandigarh, Manimajra, Panchkula and Mohali as one unit for the purpose of debarring the members of a society for the allotment of the land and a different yardstick for the eligibility.

In the light of the above, this Court is of the considered opinion that Clause 6(i) is not violative of Article 14 of the Constitution.

With regard to the case of Mr. A.P.S. Deol, Advocate, this court cannot give any finding in the present writ petition because it will be a question of fact with regard to the eligibility of Mr. A.P.S. Deol, Advocate. Mr. Deol will be at liberty to raise the point separately as to whether he had fulfilled the requisite qualifications and whether he had given the requisite affidavit/documents in the office of the society for onward transmission to the screening committee.

The net result is that this petition fails and is hereby dismissed with no order as to cost.