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PETITIONER: CHANDIGARH HOUSING BOARD

       Vs.

RESPONDENT: AVTAR SINGH & ANR.

DATE OF JUDGMENT07/08/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 AIR 2470            1995 SCC  (5) 313  1995 SCALE  (4)765

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      This appeal  by special  leave arises  from  the  order dated 22.7.1994  of the  Division  Bench  of  the  Punjab  & Haryana  High  Court  in  Writ  Petition  No.  3843/94.  The admitted facts  are that  Regulation  6  of  the  Chandigarh Housing Board  (Allotment,Management and  Sale of Tenements) Regulations, 1979  (for short,‘the  Regulations’) regulates, among  other  things,  allotment  of  the  buildings/  flats constructed by  the appellant-Board.  A wife/husband and the unmarried children  or other  members of  the  family,  one, among  them,   alone  is   eligible  for  allotment  of  any building/flat. When  the notification was published inviting applications for  allotment of  Category II  flats, the  1st respondent as well as his wife, Mrs. Kuldip Kaur, separately applied for  allotment of two houses. The allotments came to be made  independently,but later  on it  was discovered that both of  them being  wife and  husband, were  not eligible . Consequently, the  allotment made  to the 1st respondent was cancelled and the amount paid by him was forfeited under the Regulations. When he filed the writ petition, the High Court in the impugned order directed the appellant-Board to return the entire  money paid  by the  1st respondent or adjust the same towards  the amount  payable by  his  wife.  Thus  this appeal by special leave.      In the  counter-affidavit filed  by the 1st respondent, it is  admitted that  acceptance of  allotment by  both, the wife and  husband was a mistake but there was no prohibition for making  an application  for allotment  at  the  relevant time. Since  the 1st  respondent and his wife were estranged and  were   living  separately,   they  came   to  make  the applications   separately    and   subsequently    due    to reconcilement they  have  been  living  together  and  that, therefore,  there   is  no   illegality  in   their   making applications as none of them was then owing a house and that

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the High Court was right in directing to refund the amount.      Having considered  the facts and circumstances, we find that  when   the     Regulations   prohibit   allotment   to wife/husband or dependants and if any one has got a house or a flat,  by necessary  implication both  or all  except  one among the  members  of  the  unit  are  ineligible  to  make separate applications.  There need  not be any specific rule prohibiting making  separate application in that behalf.  So long as the couple are tied by marriage bond, both are bound by the Regulations for allotment. Therefore,the cancellation per se  is not  illegal. The  question then  is whether  the entire amount  should be  forfeited. Obviously, the power of forfeiture was  intended to prevent fraud and malpractice in allotment and  in case  of positive  finding in that behalf, courts would  be loath to interfere with the exercise of the power under Regulation 6 (2).      On the  facts and  circumstances in this case, we think that the  appellant- Board  would be justified in forfeiting half of  the amount  deposited by the 1st respondent and the balance amount may be adjusted towards the amount payable by his wife,  if not  already paid.  This may  not, however, be treated as a precedent.      The appeal is accordingly allowed. No costs.