JUDGMENT :

1. Leave granted.

2. Being aggrieved by judgment dated 10.08.2018 passed by the High Court of Punjab and Haryana at Chandigarh, the appellant/Chandigarh Housing Board has preferred this appeal.

3. Briefly stated, the facts pertinent to the adjudication of the present appeal are that the appellant herein, vide advertisement dated 28.06.1983, had called for applications for allotment of houses exclusively for Scheduled Castes and Scheduled Tribes and a total of 35 houses in the HIG (Upper) and HIG (Lower) categories were reserved for that purpose. This advertisement was issued pursuant to Regulation 25 of the Chandigarh Housing Board (Allotment, Management and Sale of Tenements) Regulations, 1979 which makes a provision for reservation of 12.5% of the total number of dwelling units for Scheduled Castes and Scheduled Tribes. One of the conditions stipulated for the applicants was that they should be a domicile of Union Territory (U.T.) of Chandigarh or should have been a bona fide resident of U.T. of Chandigarh for a period of at least three years on the date of submission of the application. The respondent submitted his application and the draw of lots was held on 09.09.1983. The list of successful applicants was published on 12.09.1983 wherein thirty houses were allotted.

4. Due to administrative confusion about the separate reservation for the Scheduled Tribes within the reserved dwelling units, four houses, two each in HIG (Upper) and HIG (Lower) categories were kept in abeyance out of 35 houses since there were only four applicants from the Scheduled Tribes category. A clarification was sought from the Chandigarh Administration by the appellant owing to the fact there was no Scheduled Tribe community which had been notified by the President of India with regard to U.T. of Chandigarh under Article 342 even though a notification under Article 341 for the Scheduled Castes in Chandigarh had been issued. Thus, it was enquired as to whether the Scheduled Tribes category could be entitled to a minimum reservation of 5%. In response to the request of the Appellant, the clarification issued by the Research Officer to the Finance Secretary of the Chandigarh Administration vide letter dated 21.09.1983 referred to the Brochure on Reservation for Scheduled Castes and Scheduled Tribes and noted that even if the population of the Scheduled Tribe community was less than 5% a minimum reservation of 5% could be made even for the Scheduled Tribes in respect of all built houses/dwelling units. Being aggrieved by the non-allotment of a house, the respondent-plaintiff approached the civil Court.

5. The respondent instituted Civil Suit No. 327/1984 in the Court of Senior Sub Judge, Chandigarh seeking a declaration that the appellant’s decision to not allot houses earmarked for Scheduled Tribes was mala fide. It was stated that he belongs to the Scheduled Tribes community as recognized in the State of Rajasthan and had been permanently residing in Chandigarh for twenty years.

6. The suit was contested by the appellant herein by averring that no right much less a legal right to allotment of four houses kept in abeyance could accrue to the Scheduled Tribes in the absence of the notification of any Scheduled Tribe by the President of India in so far as Union Territory of Chandigarh was concerned.

7. By judgment and decree of the trial court dated 09.01.1986, the suit was decreed by the trial Court on the basis of the letter of clarification dated 21.09.1983 from which the trial court inferred that the Appellant was obliged to reserve a minimum of 5% dwelling units for Scheduled Tribes. The said letter was found to be ‘good for all purpose’ and all the four applicants belonging to the Schedules Tribe category were held to be entitled to the allotment. While noting that Article 342 of the Constitution had not been ‘made applicable to the U.T. Chandigarh’ the trial court concluded that it would not mean that Scheduled Tribes cannot get any benefit fr