Rattna Ram vs The Chandigarh Housing Board

G.C. Garg, J.—The Haryana Housing Board Act, 1971 was extended to the Union Territory of Chandigarh vide Government, of India notification dated 14.1.1975, in exercise of the powers conferred by Section 87 of the Punjab Reorganisation Act,1966. The Chandigarh Housing Board (hereinafter referred to as the ''board'') with the previous sanction of the Administrator, in exercise of its powers u/s 74 of the Act framed Regulations known as Chandigarh Housing Board (Allotment, Management and Sale of Tenements ) Regulations, 1979, for short the regulations. In the year 1977 the Board published a scheme for allotment of various type of houses constructed by it. The scheme was known as "302 M.I.G. (Independent) Scheme Sector 40-C Chandigarh". Petitioner applied for the allotment of a house under the Middle Income Group and deposited a sum of Rs. 2,500/-. He was consequently registered vide Registration No. 9959. Petitioner got married in the year 1976 and as a result of this Wedlock, he was blessed with a daughter in, the year 1979. The case of the petitioner is that he and his wife could not pull on together and thus he divorced his wife on 6.1.1980. The wife of the petitioner was alloted house No. 827, Sector 40A, Chandigarh in the year 1979 in the lower Income Group Category, out of discretionary quota. Petitioner is alleged to have obtained divorce from his wife under custom and on the strength of this divorce he filed a suit for declaration on 26.10,1982 in the court of Sh. G.S. Sewak, Sub Judge Ist Class, Gharshanker, which was decreed on 29.11.1982, thereby granting a declaration that the petitioner and his wife no longer husband and wife and the marriage stood dissolved according to custom on 6.1.1980.

Petitioner was also alloted M.I.G. (Independent) house vide allotment letter dated 27.8.1980 on the terms and conditions as detailed in it. Petitioner had given an affidavit to the effect that he or his wife or any other dependent relation did not own or freehold or lease hold basis a residential house in the Union Territory of Chandigarh or in any of the Urban Estates of Mohali or Panchkula.

Petitioner was issued a show cause notice on 8.12.1982 asking him to show cause as to why his allotment be not cancelled and the entire deposit made by him forfeited on the ground that he while accepting the allotment of house No. 2814, Sector 40 -C, Chandigarh, had filed an affidavit to the effect that he or his wife did not own freehold or leasehold Mouse in the Union Territory Chandigarh, and that he had concealed the fact that Smt. Joginder Kaur, had already been alloted house No. 827 Sector 40-A, Chandigarh Petitioner, submitted,-a reply to the show cause notice mentioning that his marriage stood dissolved on, 6.1.1980 and the affidavit was correct Petitioner; was required to attend the office of the Board, but he never appeared before, the Chairman. He therefore, received an order dated 21.3.1984 signed by the Development Officer, for the Chairman, Chandigarh Housing Board, cancelling the allotment of the dwelling unit in his favour and further forfeiting the entire amount deposited by him on the, ground that the dissolution of marriage binds only the parties thereto and that the declaratory decree was not binding on the Housing Board. Ft is this order which is under challenge in this writ petition.

Writ petition was contested by the Board by filing a written statement. The Stand of the Board in the written statement is that the petitioner in collusion with his wife obtained the decree from the Court of Sh. G.S. Sewak, Sub Judge Ist Class, Garshanker. It is averred that a complaint dated 14.9 .1982 was received on 15.9.1982 in the office of the Board against the petitioner and he filed the suit for declaration on 23.10.1982 after the receipt of the complaint and the suit was got decreed in collusion with his wife in order to save the allotment of the house. The house to Smt. Joginder Kaur, was alloted out of the discretionary quota and by virtue of this allotment petitioner became ineligible for the allotment of a house in terms of Regulation 6 (i) of the Regulations.. Petitioner while applying for the allotment of the house made nomination in favour, of his wife, but he never got the nomination changed or cancelled even after the agreement entered into between them for divorce under custom on 6.1.1980., Wife of the petitioner had similarly made nomination of the house alloted to her in, favour of her husband in April 1979 and the same stands till today and has not been got changed inspite of alleged dissolution of the marriage. Petitioner also did not inform his. employer about the dissolution of marriage. In the end the case of the Board is, that cancellation has been made under Regulation 6(2) of the Regulations.. It is also averred that the Development Officer has only communicated the. Order of cancellation passed by the, Chairman of the Board and the Chairman has already been delegated the powers of the Board as per Clause 17 of the allotment letter, Annexure P-2. It is in these circumstances prayed that the order of cancellation be upheld.

Learned counsel for the petitioner has raised three submission while assailing the order of cancellation, (i) The marriage between the petitioner and his wife stood dissolved under custom on 6.1.1980 when a writing was executed before the Panchayat and finally when a declaration was granted by the Court of Sh. G.S. Sewak, Sub Judge Ist Class, Garshanker, in suit No. 395 of 1982 and therefore the conclusion arrived at by the ''Board that the affidavit furnished by the petitioner was wrong is on the face of it incorrect and this vitiates the order (ii) that the impugned order has only been passed by the Development Officer, which is otherwise required to be passed by the Board and therefore, the order has been passed by an authority having no jurisdiction and (iii) that by the impugned order the entire amount deposited by the petitioner has been ordered to be forfeited, whereas under the conditions of allotment an amount exceeding 20% could not be forfeited.

After hearing learned counsel for the parties, I am of the opinion that this petition deserves to succeeed on a technical ground at this stage.

Learned counsel in support of his first contention placed strong reliance on Gurdit Singh Vs. Mst. Angrez Kaur Alias Gej Kaur Alias Malan and Others, and M. Govindaraju Vs. K. Munisami Gounder (D) and others, . In the first case the dispute related to succession to the property of Sunder Singh who had executed a Will in respect of his Property in favour o his niece, Udham Kaur . About a year later one Tarlok Singh executed a document divorcing his wife Mst. Angroz Kaur on the ground that she frequently went away from his house without his consent . He therefore in the document recited that Mst Angrez Kaur was no longer his wife as she had gone to live with Sunder Singh . It was in these circumstances Angrez Kaur , on this divorce being granted to her by her first husband Tarlok ; Singh married Sunder Singh under custom known as Chader Andazi on June 7, 1952 Sunder Singh revoked his previous will and in that document , acknowledged Mst. Angrez Kaur as his wife and left the property to her Later on in the year 1953 Gurdit Singh a collateral of sunder Singh applied for mutation of the property left behind by Sunder Singh Thereupon Mst. Angrez Kaur in March 1955 filed a suit claiming the property as window of Sunder Singh . It was in these circumstances held that a custom exist among Hindu Jats of Jullundur District which permits a valid divorce by a husband of his wife and that would dissolve the marriage and on dissolution of such a marriage the divorced wife can enter into a valid marriage with a second husband in the life time of her first husband.

In the second case the wife had left the house of her first husband somewhere in the year 1942 -43 and started living with another person and it was held that there existed a custom which permitted divorce in the community to which the parties belonged in the community to which the parties belonged in the event of the wife leaving the house of her first husband, None of these two cases. the divorce had to the learned counsel for the petitioner. In the above noted case the divorce had been given to the wife before the enforcement of the Hindu marriage Act 1955 . the parties in this case are admittedly Hindus and are governed by the provisions of Hindu Marriage Act.

The law relating to Hindu marriage prior to the coming into operation of the Hindu Marriage Act 1955 is contained in paragraphs 427 to 444 of Chapter 22 of the Hindu Law . Divorce was not known to General Hindu Law as marriage from the Hindu point of view created an undissoluble tie between the husband and the wife. It was sacrament and therefore, neither party, to the marriage could divorce the other. There was no restriction on the husband to marry any number of wives, polygamy being accepted under Hindu Law but polyandry was not permitted. thus a male Hindu could marry a second time even during the subsistence of his first marriage , but a female Heir could not marry during the life time of her husband. Widow remarriage was permitted, but it was not prevalent, In Punjab amongst the agriculturists widow remarriage y Chader Andazi or Karewa was recognised this form of remarriage was normally within the family of the deceased husband., No rule of Hindu law or an established custom was brought to my notice where a wife could leave her husband an marry again i.e. during the life time of her husband . Thus to me any marriage by a female Hindu during the life time of her husband was not at all recognised and was in fact treated as immoral and social deviant. /Paragraph 441 of the Hindu law explicitly provides that neither party to a marriage could divorce the other rules divorce was allowed by custom and in other cases where the legislation so permitted.

Custom is required to be pleaded and proved. Learned counsel by reference to any material or otherwise could not point out that there existed a custom in Punjab or any part thereof or in the community to which the petitioner belongs or in his family which permitted the wife and the husband to divorce each other by mutual consent. Learned counsel could not refer to Riwaz-i-am or the Rattigan''s Digest of Customary Law to show that there existed a custom in Punjab in General or in any part thereof or in the community of the Parties which permitted them to dissolve the marriage by divorce before the enforcement of the Hindu Marriage Act, 1955

Section 4 of the Hindu Marriage Act provides that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act. Provision regarding divorce by a male or female Hindu has been specifically made in Section 13 & 13-B of the Act subject to the conditions contained therein. Section 3A of the Act defines that the expression "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a longtime, has obtained the force of law among Hindus in any local area, tribe, community, group or family provided that the rule is certain and not unreasonable or opposed to public policy and further that in case of a rule applicable only to a family it has not been discontinued by the family.

A provision having been made in the Act regarding divorce, in view of the provisions of Section 4 of the Act any custom or usage relating to divorce, which even if existed prior to the date of the enforcement of the Act, ceased to have effect and thus a divorce gathering sought to be relied upon in this case, cannot be recognised to be a valid divorce unless it is granted by a court of competent jurisdiction in terms of the provisions made in the Act. A declaratory decree granted by the court on the basis of writing about the divorce before a Panchayat cannot be accepted, to be a valid decree whereby the divorce between the parties can be recognised. Such a decree in my opinion is against law and public policy and is not binding on a person like the Board. This apart as already noticed the suit for declaration was filed on 26.10.1982 and was decreed within less than 35 days. A reading of the judgment of the Subordinate Judge, made available, during the course of hearing, goes to show that the statements of the plaintiff and the defendant were recorded on one date and the suit for declaration was decreed on that basis. Nothing could be brought to my notice by reference to Rattigans Digest of Customary Law or any decided case to show that there existed a custom in any local area, tribe or Community or the families of the parties which was continuously and uniformly observed for a long time and had obtained the force of law, whereby a husband could divorce his wife by a writing before a gathering or by obtaining a declaratory decree. No evidence was led that such a custom existed and that it was not discontinued even after the commencement of the Act. Once the existence of a custom is not shown, a declaratory decree obtained by the petitioner, in my opinion renders the petitioner no help to contend that the Marriage between the Parties stood dissolved after they had mutually agreed before the Panchayat or some persons to divorce each other. The declaratory decree being not a decree under the Hindu Marriage Act will at the most bind the parties to it and not any other person. Sub Section 2 of the Section 29 of the Act renders no assistance to the learned counsel for the petitioner in that behalf. It only provides that nothing contained in this Act shall affect any right recognised by custom to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act. Custom or a special custom has not been proved in this case, which may show that in Punjab or the Community to which the parties belong could divorce each other under custom before or after the enforcement of the Hindu Marriage Act and that custom continued for a long time and is being uniformly observed and has not been discontinued after the enforcement of the Act. Once that is so the inescapable conclusion is that after the enforcement of the Hindu Marriage Act, parties to a marriage can dissolve the marriage in terms of the provisions contained in Sections 13 & 13-B of the Act and by obtaining a decree from a court of competent jurisdiction, i.e. the court of original civil jurisdiction. A Subordinate judge is not a court of the original civil jurisdiction and therefore, a declaratory decree granted by him based on the statements of the parties is of no consequence and cannot be treated as a decree of divorce. The first contention thus has no merit and is rejected.

In support of the 2nd contention learned counsel for the petitioner by reference to order of cancellation, Annexure P-8, submitted that it has been, passed by the Development officer and not by the Chairman, Chandigarh Housing Board and, therefore, cannot be sustained having been passed by a authority, which is not competent to pass the order of cancellation. Learned counsel for the respondent, however submitted that the order of cancellation has been passed by the chairman of the Board and. not by the Development Officer. Learned counsel further submitted that at the relevant time, when the impugned order was passed, the Board had only person as its member i.e. the Chairman and, therefore, an order passed by the Chairman is an order passed by the Board. At the asking of the Court the record of cancellation was made available and perusal thereof clearly showed that the order of cancellation had not been passed by the Chairman of the Board. Learned counsel for the respondent by reference to the record could only show that the Chairman had initialled on the file when it was put up before him for approval of the draft. The approval for the issuance of the draft order does not mean that the original order was passed by the Chairman. This apart learned counsel for the petitioner made available notifications dated December 16, 1983 and March 21,1984, which clearly go to show that the Board is a multi-member Board and not a single member Board. Confronted with the notifications learned counsel for the respondent could not by reference to any material or notification show that the Chairman constituted the Board as a single member Board. Thus it is clear that the order impugned in this writ Petition has not been passed by the authority competent to pass the order and is thus clearly illegal and deserves to be set aside on that ground.

In view of the fact that the order has not been passed by the Competent authority, it is not considered necessary to go into the 3rd contention of the learned counsel for the petitioner.

Accordingly, the writ petition is allowed, order Annexure P-8, is set aside, but with no order as to costs. However, it shall be open to the respondent-Board to consider the matter afresh in accordance with law, if so advised.