R H B And Anr vs Bhanwar Singh
2021 Latest Caselaw 3928 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

             D. B. Civil Special Appeal (Writ) No. 75/2018

                                         In

                 S. B. Civil Writ Petition No. 333/2009

1.        Rajasthan Housing Board through its Commissioner, Jyoti
          Nagar, Jaipur.
2.        The Deputy Housing Commissioner, Rajasthan Housing
          Board, Circle-I, Pratap Nagar, Sanganer, Jaipur.
                                                                     ----Appellants
                                     Versus
Bhanwar Singh S/o Shri Nand Singh, aged about 59 years,
resident of Block No. 7, Quarter No. 4, Near PWD Chowki,
Rajasthan Police Academy, Nehru Nagar, Jaipur.
                                                                  ----Respondent

For Appellants : Mr. P. C. Sharma Advocate.

For Respondent : Mr. Abhishek Sharma Advocate.

HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA

Judgment

24/08/2021

Appellant-Rajasthan Housing Board (hereinafter

referred to as 'the Board') has filed the appeal challenging order

dated 12.09.2017 passed by the learned Single Judge, whereby,

writ petition filed by the respondent was disposed of.

Respondent had filed the writ petition claiming following

relief:

"It is therefore, respectfully prayed that your Lordship may graciously be pleased to accept and allow this writ petition and;

i) By an appropriate writ, order or direction the impugned order dated 17.12.2008 (Annex.7) be

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declared as null and void and may kindly be quashed and set aside.

ii) By an appropriate writ, order or direction the respondents may be directed to allot the House No. 13/26 at Sanganer Pratap Nagar Scheme, at the rate of year 1997 when one Shri Rampal was allotted the House despite having lower priority number than the petitioner.

iii) Any other order which this Hon'ble Court deemed just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner.

iv) Cost may also be awarded in favour of the petitioner."

Case of the respondent, in brief, was that a scheme had

been formulated by the Board in the year 1982 with regard to

allotment of houses at Sanganer Pratap Nagar. Respondent also

submitted his application for allotment of house and was given

Priority No. LIG/GI/HP/P 1306 vide order dated 08.12.1987.

Rampal had also applied for a house under the Scheme and was

issued Priority No. LIG/GI/HP/P 1757 vide order dated

10.11.1987. Although, the respondent was higher in priority,

House No. 114/49 was allotted to Rampal vide allotment letter

dated 30.06.1997.

Respondent approached the District Consumer Forum,

Jaipur (hereinafter referred to as 'the Forum') by filing Complaint

No. 511/1994 with a prayer that house be allotted to him under

the 1982 Scheme. Vide order dated 19.03.1997, complaint filed

by the respondent was allowed and the Board was directed to allot

house to the respondent. Since, the order passed by the Forum

was not complied by the Board, respondent approached the Forum

under Section 27 of the Consumer Protection Act, 1986. However,

the said application was dismissed vide order dated 06.08.2007 on

the basis of the statement given by counsel for the Board that a

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house had been allotted to the respondent vide allotment letter

dated 07.12.2007.

Respondent again approached the Forum by moving

Complaint No. 1721/2007 as he was being asked to deposit more

amount than had been got deposited from Rampal. The Board,

however, later cancelled the allotment of House No. 13/26 made in

favour of the respondent vide order dated 17.12.2008. Hence,

writ petition was filed by the respondent.

In the reply filed by the Board, it was averred that

respondent had moved an application for allotment of house and

had deposited Rs. 1450/- on 02.02.1988 in terms of the option

given to him on 08.03.1988 for allotment of house under the

Mansarovar Scheme. Since sufficient number of houses were not

available under the Mansarovar Scheme, respondent could not be

allotted a house. It was admitted that, although, respondent was

having higher priority than Rampal, but Rampal had deposited Rs.

2900/- for allotment of residential house and was allotted House

No. 114/49 on 26.03.1997. Respondent was informed vide letter

dated 16.11.1993 to deposit Rs. 3500/- within one month, Rs.

3500/- in seven monthly installments and Rs. 3000/- in thirteen

monthly installments. However, respondent had failed to deposit

any installment and was informed vide letter dated 10.07.1996 to

deposit the due installments. Instead of depositing the

installments, respondent had approached the Forum. Registration

of the respondent was cancelled vide letter No. 354 dated

04.05.2002 as he had failed to deposit the installments.

Learned Single Judge vide impugned order disposed of

the writ petition filed by the respondent and quashed impugned

order dated 17.12.2008, whereby, allotment of House No. 13/26

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in Sanganer, Pratap Nagar Scheme, Jaipur made in favour of the

respondent was cancelled. It was further ordered that the

allotment dated 07.12.2007 would stand restored to the

respondent subject to the condition that he would pay interest @

9% per annum on the allotment price as per allotment letter dated

07.12.2007 and the terminal date for levy of interest would be

11.10.2017.

Learned counsel for the appellants has submitted that

the respondent had failed to deposit the monthly installments in

pursuance to letter dated 16.11.1993. Hence, the allotment of

house made in favour of the respondent had been rightly

cancelled. Moreover, Rampal had deposited Rs. 2900/- for

allotment of residential house, whereas, respondent had only

deposited Rs. 1450/- on 02.02.1988. Learned counsel for the

appellants has further submitted that possession of the house had

already been handed over to the respondent. Respondent was

liable to pay the prevalent rate of the house on the date he had

been given the possession.

Learned counsel for the respondent, on the other hand,

has opposed the appeal and has submitted that the respondent

was higher in priority than Rampal, who had been allotted house

vide allotment letter dated 30.06.1997. Respondent had also

deposited Rs. 2900 as had been allegedly deposited by Rampal.

Respondent had deposited Rs. 1450/- on 02.02.1988 and Rs.

1450/- on 22.06.1989, much prior to the allotment letter issued in

favour of Rampal. The action of the appellants in allotting house

to Rampal prior to the respondent was illegal.

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During the course of arguments, it has transpired that

the possession of the house-in-question had already been handed

over to the respondent.

The question that arises for consideration in the present

appeal is as to whether the respondent is liable to pay the value of

the house as it existed on the date he got the possession or he is

liable to make payment in terms of the order passed by the

learned Single Judge.

It is an admitted fact that the respondent was higher in

priority than Rampal, who had been allotted a house vide

allotment letter dated 30.06.1997. It has been averred by the

appellant-Board in its reply to writ petition that respondent had

only deposited Rs. 1450/- on 02.02.1988, whereas, Rampal had

deposited Rs. 2900/- for allotment of residential house and was

allotted the house on 26.03.1997

A perusal of Annexure-8 attached with the rejoinder

filed by the respondent reveals that initially respondent had

deposited Rs. 1800/- on 24.12.1982 and had thereafter deposited

Rs. 1450/- on 02.02.1988 and Rs. 1450/- on 22.06.1989. Thus,

at the time when allotment was made in favour of Rampal,

respondent had also deposited Rs. 2900/- and he had deposited

Rs. 1800/- on 24.12.1982. Thus, a person, who was having lower

priority, had been allotted a house in the Scheme-in-question.

The Forum had decided in favour of the respondent vide order

dated 19.03.1997, whereas, allotment of house was made in

favour of the respondent on 07.12.2007 at the prevailing rates.

Board had taken more than 10 years in allotting a house to the

respondent in pursuance to the order passed by the Forum. In

this period value of house had escalated. Respondent could not be

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made to suffer on account of delay caused by the Board in

allotting the house. Respondent, being aggrieved by the action of

the Board in asking him to pay prevalent rate on 07.12.2007, had

approached the Forum by way of Complaint No. 178/2011

(1721/2007).

A perusal of order dated 01.09.2011 passed by the

Forum (copy available on the record of writ petition, though not

marked as annexure) reveals that complaint filed by the

respondent was allowed and it was ordered that the respondent

should be charged the rate prevailing on 19.03.1997. A perusal of

order dated 13.01.2015 passed by the State Consumer Disputes

Redressal Commission, Rajasthan, Bench No. 3, Jaipur in First

Appeal No. 1851/2011 (copy available on the record of writ

petition, though not marked as annexure) filed by the Board

challenging order dated 01.09.2011 reveals that the appeal filed

by the Board was allowed on the ground that the relief prayed by

the respondent in the complaint and Writ Petition No. 333/2009

filed before this Court was identical. To avoid any contradictory

order, the appeal was allowed and order dated 01.09.2011 was set

aside. Be that as it may, the fact that the respondent had not

made payment in terms of letter of allotment dated 07.12.2007

cannot be said to be fatal to respondent's rights as in the present

case, the person, who was lower in priority, had been allotted

house prior to the respondent. Moreover, respondent had taken

recourse to law by approaching the Forum.

In the facts and circumstances of the present case,

learned Single Judge rightly came to the conclusion that impugned

order dated 17.12.2008 was arbitrary and had rightly quashed the

said order. Learned Single Judge, while restoring the allotment,

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has also ordered that the respondent would be liable to pay

interest @ 9% per annum on the allotment price as per allotment

letter dated 07.12.2007 and the terminal date for the levy of

interest would be 11.10.2017. The order passed by the learned

Single Judge is just, fair and equitable and calls for no

interference.

No ground for interference is made out.

Dismissed.

                                   (CHANDRA KUMAR SONGARA),J                                       (SABINA),J




                                   MANOJ NARWANI /25









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