CHANDIGARH HOUSING BOARD versus DEVINDER SINGH AND ANR.

11. Right to acquire a property 11lthough is not a fundamentalright, but is a constitutional and human right. Before a person can be deprived of his right to acquire property, the law and/or a contract must expressly and ''"ity states so. ,_; CHANDIGARH HOUSING BOARDv DEVJNDERSINGH [S.8 SINHA,l] J 05 5

12. Regulations( 6) of the Regulations is in two parts. The First Part A deals with a bar on allotment of a dwelling unit or a flat in favour of such a person who or his wife/her husband or any of his/her dependent relations including unmarried children does not own any free-hold or lease hold or on hire purchase basis, a residential plot or house in the Union Territory of Chandigarh. The Second Part of Regulation (6) takes within its purview a B restiction on allotment to such persons who have acquired a house/residential site anywhere in India through Government/Semi-Government/Municipal Committee, Improvement Trust at consessional rate in their name or in the name of any of their dependents. Besides, the applicant not also fulfill other condition.

13. The purport and object for imposition of such drastic restriction on acquisition of property by a person of more than one house or a dwelling unit, appears to serve the purpose of allotment of a house by the Housing Board in question. It is obligatory on the part of the applicant to be an ordinary resisdent of Chandigarh.

14. Res~ondent were allotted a flat by the 'AWHO' a society registered under the Socities Registration Act. It is indisputably not a Government or Semi-Government organisation. It indisputably, does not come within the purview of the other terms specified therein. c

15. The status of a member vis-a-vis a Cooperative Society came for E consideration before a Constitution Bench of this Court in Daman Singh and Ors. v. State of Punjab and Ors., [1985) 2 SCC 670, wherupon Ms. Issar, learned counsel appearing for the appellant, places strong reliance. The question which arose for consideration therein was the validity of certain provisions of the Cooperative Societies Act providing for compulsory amalgamation of Cooperative Societies. The issue with which this Court was F concerned, keeping in view the difference of opinion rendered by different High Courts, was as to whether for the purpose of amalgamation of such Cooperative Societies, Individual members of Cooperative Societies are required to be h~ard. Dealing with the defination of term 'Corporation'; this Court while holding that it would be so and in that view of the matter a member of G the Cooperative Society has no independent existence apart from the Socities stated as under: "11.. … He argued that in the absence of any provision, the rules of natural Justice may be read into the provisions and notice to the members of the affected societies was imperative. Otherwise, he argued, H c (2007) 3 S.C.R. members of one society would be formed against their will and without being heard to associate themselves with members of another society. We have no hesitation in rejecting this submission also. Once a person becomes a member of a Coopearive Society, he losus his individuality qua the society and he has no independent rights expect those given to him by the statute and the by-laws. he must act and speak through the society or rather, the society alone can act and speak for him qua rights or duties of the society as a body. So if the statute which authorities compulsory amagamation of Cooperative societies provides for notice to the socities concerned, the requirements of natural justice is fully satisfied, The notice to the society will be deemed as notice to all its members …. "

16. Yet again in State of UP. and Anr. v. C.O.D. Chheoki Employees' Cooperative Society and Ors., [1997) 3 SCC 681, Daman Singh (Supra) was followed wherein validity of certain provisons and the rules framed under the U.P. Cooperative Socities Act, 1965 were in question. In that context, it was D held as under: "16. Thus, it is settled law that no citizen has a fundamental right under I 9(l)(c) to become a member of a Cooperative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualfications prescribed to become a member and for being a member of the society and on admission, he become member and for being a member of the society is subject to the operation of the Ac,t rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the ' society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionlity of the _ ~,ovisio~ of th~J\:cat;.._~!es and the bye-laws as he has his right _ ,. 'Ii-· und-er' the . .tfit,ruli,~nd- the ~ye-laws and is subject to its operation. –.'"': T1 stream:canno11i5~h€r than the source." …,,, "·'\:r-

17. It ir,' thus, one thing to say that a mt:mber of a society has no independent status so as to acquire a higher right than the society itself or for the purpose of questtioning the validity or constitutionality of the provisions of the Cooperative Society Act or the rules, it does not have· any – independent locus to maintain a action, but it is antoher thing to say that altough a person acquires a right of property by reason of allotment made by H another juristic person, namely, a Corporation, he can be deprived therefrom y CHANDIGARH HOUSING BOARDr. DEVIN DER SINGH [S.B. SINHA, J.] by reason of a clause of the nature with which we are concerned. Status of A a member qua Society and his relationship as an allottee under a statutory orgainisation stands on different footings. One deals with his rights qua the Society and other with his right qua another organisation. In the first case, he exercise a limited right, in the second there wou Id be no such restriction. In a given case if a allotment is made by different authorities in the same area, B matter may have to be considered differently.

18. We have noticed, hereinbefore, that Regulation (6) is in two parts. We are only concerned with the second part in fact before the High Court as also before us the learned counsel for the parties referred only to the second part of the said Regulation which has been reproduced in the Brochure c and has been noticed by us hereinbefore.

19. We would deal with the principal contention raised by the learned counsel a little later but at this Stage, we may notice the decisions of this Court upon which strong reliance has been placed by Ms. Issar.

20. In Chandigarh Housing Board and Anr. v. Narinder Kaur Mako!, [2000] 6 SCC 415, this Court was concerned with the case where a husband, an allottee, although was allotted a plot for commercial purposes, he, in fact, used the same for residential purpose. In that situation, a question arose as to whether a residential plot by the same Housing Board could be allotted in favour of his wife. In the fact situation therein, this Court opined as under: E "12. In our opinion, in view of the admitted fact that there is a residential flat on the second and third floors of the ground floor commercial plot, it must necessarily be held that the husband o.f the respondent owned a residential house within the territory in question and that therefore the respondent wife of the first allottee is not F eligible for allotment of another residential plot from .. the said authority. It must be realised that these plots are allotted on concessional basis to the allottees by the public authority and the relevant regulations must therefore be interpreted in fi.UCh a manner as to save (sic serve) …J their real purpose so that the plots are available. as· far as possible,. G to the largest number of person. and for preventing the same family members, husband or wife or dependants, as the case may be, from getting more than one plot or house, for the same purpose. We are of the view that the words 'residential house' in Regulation 6( 1) must be treated as including a flat constructed above the commercial flat c [2007) 3 S.C.R. on the ground floor. This will be so even if originally the plot was allotted for commercial purposes, if incidentally construction of residential flat above the ground floor commercial plot is permitted as per the plans. In other words, even though the plot is allotted as a commercial plot, if it is permissable to build a residential flat above the commercial plot, and is so constructed, then such a residential flat will come within the prohibition in Regulation6( 1 )."

21. As we have noticed hereinbefore that Regulation ( 6) is in two parts and this Court was concerned therin with the first part of the said Regulation and thus, in our opinio, the said decision will have no application in the instant case. Both parts of the said regulation seek to achieve different purposes.

22. Reliance has also been placed on Harsh Vardhan Bansal v. Chandigarh Housing Board and Anr., [2006] 9 SCC 708, where a judgment of the High Court upholding an order of cancellation of a dwelling unit and/ or flat in favour of the respondent therein was not interfered with by this Com1 on the premises that the same had substantially been worked out stating as under: "5. Learned counsel for the respondent Board submitted that though clauses XI of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 enable the Board to cancel the registration of the dwelling unit or the flat and to forrfeit the deposit recieved with the application and all the payments made to the Board !hereinafter, the respondent pursuant to the order passed by this Court on 12.7.2004 refunded Rs. 8,06,441. As already noticed, a sum of Rs. I 0 lakhs and odd was deposited and the Housing Board has now refunded a sum of Rs. 8 lakhs and odd even though they are entitled to forfeit the entire deposit made. Now that a major portion of the amount has already been refunded to the appellant, we do not propose to go into the merits of the rival claims or the correctness of the order passed by the High Court or the cancellation order passed by the Housing Board. We also make it clear that any observation made in the show-cause notice or in the order passed by the High Court will not affect the career of the appellant herein since, as argued and accepted by us, the appellant has furnished all the details in the application form for registration on a bona fide belief and impression." ._ CHANDIGARH HOUSING BOARDr. DEVINDERSINGH [S.B. SINHA. J.] \ 059

23. No law has, thus, been laid down therein. The rival contentions of A the parties had not been considered. No determination on the lis was made. No reason in support of any of the ovservations was assigned. The said decision, therefore, does not constitute any precedent far less binding precedent.

24. Before us, the Housing Scheme of the' A WHO' has been placed by B Ms. Issar, learned counsel for showing that the same had been constituted for promoting housing schemes under its own care, and arragements or acquire for its members houses under the schemes already in operation in public sector. i.e. Government or Quasi Government agencies under the control of either the Central or State Govemment(s). The economy in land cost was C to be made by advance planning and acquisition of land at concessional rates through goverment and other agencies. It is to function at no loss and no profits venture. . 25. Our attention in particular has been drawn to the Form of Declaration which is required to be made by an allottee which is in the following terms: D " … It is certified that I do not have residential house in full or in part or lease hold or free hold basis in any urba1n area either in my name or in the name of my wife/husband or any of my dependent relation including unmarried children". 26. We will assume that the Scheme framed by the 'A WHO' was to obtain lands either through its own efforts or from the Government or Semi- Government organisations so as to enable it to con:struct houses for the retired army personnel. The declaration, however, which is required to be given by a Member of the Society must be held to h:ave application which the Scheme seekss to achieve. It applies only when the conditions to allotment are required to be complied with. It does not prohibit any future acquisition. If any declaration is made, which may subsequently be found to be false, the Society may or may not proceed against the al\ottee. 'If it does, it again must be confined only to a situation arising within the four comers of the said Scheme. 27. Keeping in view the settled principles of interpretation of deed/ Statute, we are of the opinion that the condition of eligibility in question must be construed literally. if a plain meaning can be given effect to there is no reason why should not be applied. The Court would not take recourse to any other principle of interpretation when it is not necessary. [2007) 3 S.C.R. 28. A 1 plain reading thereof indicates that the same consists of the following ingredients: (I) The Applicant should not have acquired a house/residential site anywhere in India: (2) Su'ch acquisition must be through Government/Semi Government/ Municipal Committee/Corporation/Improvement Trust. (3) Such acquisition must be at a concessional rate i.e. at reserved/ fixed price. (4) Such acquisition may be in own name or in the name of any dependent members of his/her family. 29. Ms. lssar, learned counsel submits that the word 'through' must be given its ddue meaning in construction of the eligibilty conditions and in view of the fact thai some allotment at concessional rate had been made by the Ministry of Housing and Urban Development to the Societies. Respondents D being part of the' Society would come within the purview of the said restriction. 30. We are unable to accept the said submission. The word 'through' in this context would imply 'agency' Thus only when a person acquires some property through the 'agency' specifically mentioned therein, the condition of eligibility which, it will be a repetition to state, impose a restriction on a E valuable right of'a citizens must be held to be applicable and not otherwise. 3 I. Acquisit1on of any property through any other source or through any other agency 'is not prohibited. Right to acquire property is a human right. A deed must be construed reasonably and in its entirty. If acquisition F of any property through any agency other than specified therin is not prohibited, evidentty, the restriction clause in the condition of eligibility will have no application. The same, in our. opinion, must be construed strictly. A clause impinging the right of a citizen must, in our opinion, recieve strict construction and the principle of contextual interpretation will have no application in such I a case. 32. The High 'Court, in our opinion, has rightly answered the question in its judgment. 33. The Housing Board being a statutory organisation and having a regulation making power, could have made an explicit provisions if it intended CHANDIGARH HOUSING BOARDv. DEVINDERSINGH [S.B. SINHA, J.] 106] to put such a restriction on the right of a citizens to acquire immovable A property as has been sought to be canvassed before us by Ms. lssar, learned counsel and it would be free to do so. For the views we have taken, it is not necessary to deal with the second contention of Mr. Ganguli, learned counsel. 34. For the aforementioned reasons, we find no merit in this appeal. The appeal is dismissed. KKT. Appeal dismissed.