Dinesh Kumar Agarwal vs Rajasthan Housing Board

Mohammad Rafiq, J.

BY THE COURT:

This petition u/s 114 read with Order 47 Rule 1 CPC and under Article 226/227 of the Constitution of India has been filed by the Rajasthan Housing Board seeking review of the judgment dated 4/11/1997 passed by the Single Bench of this Court in S.B. Civil Writ Petition No. 1642/1993 filed by writPetitioner Dinesh Kumar Agarwal.

Judgment of which review has been sought for was delivered by the co-ordinate bench of this Court on 4/11/1997 in a petition filed by the writ-Petitioner with the prayers (i) that allotment letter dated 15/12/1992 issued in his favour by the Rajasthan Housing Board be quashed and set-aside with direction to the Board to re-calculate the cost of land and the cost of construction and ancillary service charges (ASC) with interest, (ii) that the Board of Revenue to give due credit of the amount, which the Petitioner has already deposited with them, (iii) that the Board be required to issue revised demand note, (iv) that demand of lease amount be quashed and set-aside and (v) that a direction be issued to the Respondent-Board to allot structure of the independent HIG house and demand may be raised only in conformity therewith.

According to the Petitioner, his father Shri R.S. Kejriwal, then an Hon''ble Judge of this Court, applied for HIG house in Sanganer on Hire Purchase Scheme of the Rajasthan Housing Board in the year 1982 under ''General Registration Scheme'' and deposited Rs. 10,000/-as registration amount. Estimated cost of the house was Rs. 1,00,000/- and a sum of Rs. 30,000/-was to be deposited after allotment of the house to the applicant. His uncle, Shri V.P. Agrawal also applied for the HIG house in Sanganer Scheme in the year 1982 about the same time and was allotted a house vide allotment-cum-possession letter dated 3/12/1991. Area of the plot was 236.25 square meters and the cost of the present plot was shown as Rs. 85,320/-. Construction cost of the said plot was shown as Rs. 1,69,480/- and Rs. 6,244/- was shown as ancillary service charges thus; total amount of Rs. 2,07,595.94 was demanded. However, despite persisted enquiry by the father of the Petitioner, no satisfactory answer was given as to what happened to his application for allotment of a house. His father thereafter submitted an application on prescribed fee for transfer of the registration of the house in the name of the Petitioner. Petitioner received information vide letter dated 3/3/1992 from the Estate Officer of the Housing Board that a house has been reserved for writ-Petitioner and he should deposit first installment of Rs. 20,000/-, second installment of Rs. 20,000/- and third installment of Rs. 10,000/-, respectively. Writ-Petitioner accordingly deposited the first installment of Rs. 20,000/- on 13/3/1992 and then he submitted an application to the Estate Manager, Circle-I of the Board requesting that though he was registered for HIG house under Hire Purchase Scheme, but it was learnt that allotment of house in the ORS Scheme, was being made earlier. He submitted an option with a condition that he should be allotted the structure of the independent HIG house in ORS Scheme. Instead of sending reply of this letter to the writ-Petitioner, the Estate Manager of the Housing Board addressed a letter dated 16/7/1992 to his father, the earlier registration holder, whereby application was registered for allotment of structure of independent HIG house in ORS Scheme, as per option exercised by the writ-Petitioner and his priority was enumerated therein. Thereafter, one allotment letter was received by the writ-Petitioner from the Board on 15/12/1992 by which HIG House No. 32/12 was allotted to him in Sanganer Scheme and the date of allotment was shown as 18/7/1992 and the size of the plot was shown as 236.25 square meters, the cost of the land was shown as Rs. 1,00,725/- and constitution cost thereof was shown as Rs. 2,54,975/-. Amount of Rs. 15,376/- was shown as ancillary charges (ACS) and Rs. 2,518.12 was shown as lease money and interest thereon of Rs. 4,800/- was charged on outstanding seed money; thus total cost of the house was shown as Rs. 3,78,394.12. A credit of advance money of Rs. 10,000/- and interest thereon of Rs. 7,866.66 thus; in total, a credit of only Rs. 17,866.66 was given to him whereas, no adjustment was made of the amount of Rs. 20,000/- already deposited by the writ-Petitioner on 13/3/1992. Even though a lottery was organized in March 1992 but name of the writ-Petitioner was not included in that lottery after change of option was accepted by the Board and instead, an exorbitant amount was asked to be deposited for allotment of the HIG house in Sanganer Scheme, which is why the Petitioner was constrained to file the writ petition.

On examination of the record, it transpires that despite service of notice of the writ petition, no one had appeared on behalf of the Rajasthan Housing Board to oppose the writ petition. During pendency of the writ petition, Shri B.D. Agrawal Advocate had filed his Vakalatnama on behalf of the Board on 24/9/1993, but never appeared before the court. Scrutiny of record however reveals that the Chief Estate Manager of the Housing Board wrote a letter to the writ-Petitioner on 21/12/1994 stating therein that since his Advocate has informed to the Advocate of the Housing Board that if a house is allotted to the writ-Petitioner in Jawahar Nagar Scheme, he was prepared to withdraw the writ petition. It was informed that if he was willing to get the house allotted in Jawahar Nagar Scheme at the present cost of construction, he should send his written consent to the Housing Board so that necessary steps may be taken. Writ-Petitioner submitted reply to that letter to the Chief Estate Manager of the Housing Board as late as 21/1/1997 whereby he consented for allotment of a house in Jawahar Nagar Scheme at the present cost of construction and stated that in case a house was allotted, he would withdraw the writ petition. Petitioner then filed an application placing on record the aforesaid letters on record of the writ petition. When the matter was listed before the court on 4/11/1997, no one appeared on behalf of the Housing Board. However, learned Counsel appearing for the writ-Petitioner brought to the notice of the court the aforesaid letter addressed by the Chief Estate Manager of the Housing Board. This Court disposed of the writ petition with the following directions:

Considering the submission of Mr. Rastogi and background of the case the Respondent is directed to allot a house or plot of land as per offer of the Board to Petitioner, immediately within a period of three months, from today. The amount deposited by the Petitioner and lying with the Respondent be adjusted with yearly break interest, at the rate of 18% p.a. on the amount already deposited by Petitioner. In case if HIG house or structure of the house is not available for allotment in Jawahar Nagar Scheme, and it is impossible to allot the HIG house or plot in Jawahar Nagar Scheme, then return entire amount of Petitioner, along with yearly break interest at the rate of 18% p.a. within the aforesaid period of three months.

When the compliance of the aforesaid judgment was not made, writ-Petitioner filed contempt petition. The court was informed of the fact by the learned Counsel for the writ Petitioner that still four houses are available in Jawahar Nagar Scheme in his category and he would furnish the number thereof. Learned Counsel was alternatively required to furnish the statement as to how much amount was due including interest, in case house was not available for allotment. While hearing contempt petition, this Court on 1/10/2009 after hearing both the parties has on the basis of alternative direction observed that both the parties are at ad idem that as on 30/1/2004, Housing Board owes an amount of Rs. 25,41,850/- to the writ-Petitioner. The Housing Board was directed to calculate the amount of interest payable on the said amount @18% p.a. from 31/1/2004 to 30/9/2009 and further to pay amount of Rs. 1,06,650/- along with aforesaid amount. Learned Counsel for the writ-Petitioner was directed to inform the Housing Board to act upon accordingly. It was at this stage that the Housing Board filed special appeal before the division bench u/s 19 of the Contempt of Courts Act against the aforesaid order of the co-ordinate bench of this Court dated 1/10/2009. Initially, while issuing notices of the appeal, division bench stayed operation of the aforesaid order. Subsequently however, appeal was dismissed vide judgment of division bench of this Court dated 3/3/2011. In those facts, the Chairman, Rajasthan Housing Board filed a special leave to appeal before the Supreme Court. The Supreme Court on 30/5/2011, passed the following order:

The names of Respondent Nos. 2 to 8, who are proforma Respondents are deleted from the array of parties. The amended cause title be filed within two weeks.

This petition is directed against order dated 3.3.2011 passed by the Division Bench of the Rajasthan High Court in D.B. Civil Miscellaneous Appeal No. 4980/2009 whereby the Petitioner was virtually compelled to pay Rs. 25,41,840/- and Rs. 1,06,650/- to Respondent No. 1.

We have heard the learned Counsel for the Petitioner and perused the record.

Prima facie, we are of the view that orders dated 14.12.2005 and 1.10.2009 passed by the learned Single Judges and the impugned order are illegally unsustainable. It is extremely doubtful whether the learned single Judges were justified in entertaining the contempt petition filed after 16 years of disposal of the writ petition filed by Respondent No. 1.

Issue notice to Respondent No. 1 returnable within eight weeks.

Dasti service, in addition, is permitted.

In the meanwhile, further proceedings in the contempt petition filed by Respondent No. 1 shall remain stayed. The Bench of the Rajasthan High Court which is seized with Review Petition D No. 011587/2009 is requested to dispose of the same as early as possible but latest by 30.9.2011.

The Registry is directed to send a copy of this order by fax to the Registrar (Judicial), Rajasthan High Court, Jaipur Bench, Jaipur, who shall list the review petition before an appropriate Bench in the month of July, 2011 after obtaining orders from Hon''ble the Chief Justice.

I have heard Dr. P.C. Jain, learned Counsel for review-Petitioner-Rajasthan Housing Board, Shri R.D. Rastogi, learned Counsel for writ-Petitioner Shri Dinesh Kumar Agarwal and perused the material available on record.

Dr. P.C. Jain, learned Counsel for review-Petitioner has argued that judgment of this Court dated 4/11/1997 suffers from an error apparent on the face of record inasmuch as, this judgment has incorporated the offer given by the Housing Board to the Petitioner in the inter-se correspondence as its direction and such order was passed in the absence of the counsel or representative of the Housing Board, therefore, the letter was misconstrued and mis-applied. Dr. P.C. Jain has argued that the offer was conditional to the effect that if Petitioner was ready for allotment of the house in Jawahar Nagar Scheme, he should withdraw his writ petition. If at all the Petitioner was willing to act upon the said offer, it was for him to have withdrawn the writ petition. This Court could not have incorporated the conditional offer of the Board in the operative part of its judgment. It was argued that even if the letter was sent to the Petitioner in the spirit of amicable settlement, this was a conditional offer and positive direction for allotment of the house in Jawahar Nagar Scheme and in the alternative, further direction for refund of the deposited amount with a very high rate of interest @18% p.a. could not have been directed. It was further argued that no prayer to that effect was made in the writ petition. This Court therefore could not make out any new case in favour of the writ-Petitioner for which, no prayer was made in the pleadings of writ petition. An amount of Rs. 27,00,000/- has already been refunded to the writ Petitioner because not a single house is available in the Jawahar Nagar Scheme and now he is demanding Rs. 36,00,000/- more. Dr. P.C. Jain, learned Counsel for the review-Petitioner in support of his argument has placed reliance on the judgment of Supreme Court in State of Himachal Pradesh and Ors. v. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh (2011) 6 SCC 597.

Dr. P.C. Jain, learned Counsel for review Petitioner has argued that whereabouts of the letter dated 21/12/1994, which has been made the foundation of the judgment by this Court are not known. No such letter was available in the records of the Housing Board nor could it be ascertained as to who issued the said letter. Copy of such letter was never given to the counsel for the Housing Board. Even if that letter was to be acted upon, first condition of the letter was that writ-Petitioner should withdraw his writ petition only then, his case could be considered for allotment of house in Jawahar Nagar Scheme. It was argued that this Court should not have passed an ex-parte order without issuing any notice to the Housing Board in respect of this fresh letter on the basis of which writ petition has been allowed. Writ-Petitioner is said to have responded to this letter belatedly on 21/1/1997. He remained silent even about the judgment of this Court dated 4/11/1997 and abruptly started claiming refund of the amount without giving details of the deposits. For number of years, Petitioner failed to give details of the outstanding amount despite specific order being passed by this Court on 14/11/2005. First such letter containing details regarding deposits was sent by the Petitioner on 31/8/2000. Reason for this was that writ-Petitioner wanted to delay the matter so as to get interest @18% p.a. for the amount to be refunded. For this purpose, while filing the contempt petition, writ Petitioner has impleaded the Housing Commissioner as party Respondent whereas, he was not party in the main writ petition. Hence, review petition with the prayer that judgment of this Court dated 4/11/1997 be recalled and the writ petition may be ordered to be re-heard on merits with liberty to the Housing Board to present its view point before this Court.

Shri R.D. Rastogi, learned Counsel appearing for the writ-Petitioner has opposed the review petition and raised the question of maintainability thereof alleging that the review petition has been filed with the enormous delay of sixteen years only after order was passed in contempt petition. It was argued that even if the delay in filing the review petition has been condoned by this Court, question of maintainability can still be examined, which is that whether the grounds of review petition fall within the parameters of law? Shri R.D. Rastogi in support of his argument has relied on the judgment of the Supreme Court in The State of West Bengal and Others Vs. Kamal Sengupta and Another, and has argued that review petition can be maintained only on the grounds specified in Order 47 Rule 1 CPC and cannot partake character of the appeal. Shri R.D. Rastogi in this connection has also relied on another judgment of Supreme Court in Delhi Administration Vs. Gurdip Singh Uban and Others, and argued that Supreme Court in that case advised exercise of greater care, seriousness and restraint before filing review petitions and observed that indiscriminate filing of the review petitions, results in wastage time of the court. Shri R.D. Rastogi, learned Counsel for writ-Petitioner therefore argued that review petition is not maintainable because none of the grounds that have been urged by the review Petitioner-Housing Board is such, which can be described as error apparent on the face of record. Illegality in the order cannot be a ground of review, which ought to be challenged in appeal. Judgment having attained finality and the Housing Board having not filed any appeal thereagainst before the Division Bench, is not open to be reviewed. Learned Counsel cited the judgment of Supreme Court in Inderchand Jain (dead) through Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs., and argued that Supreme Court in the said case held that a review petition would lie only when order suffer from error apparent on the face of record and permitting same to be continued, would leave to failure of justice.

Shri R.D. Rastogi, learned Counsel for the writ-Petitioner argued that assertion of the review-Petitioner that there was not a single house available in the Jawahar Nagar Scheme is altogether an incorrect assertion because not only one, but four houses were available in the Jawahar Nagar Scheme. It was argued that what has not been done directly, cannot be allowed to be done indirectly under the cloak of review. Learned Counsel for the review-Petitioner further argued that absence of counsel cannot be a ground for review. If the Housing Board had engaged a counsel, it was his duty to remain present as and when the matter was listed. If he absented from the court proceedings, the same cannot be a ground for review. In support of this argument, learned Counsel for writ-Petitioner has placed reliance on the judgment of Andhra Pradesh High Court in K. Anjaneyulu and Others Vs. The Collector, Excise, R.R. District at Hyderabad and Others, Learned Counsel argued that review petition would be maintained only upon discovery of new fact or any error apparent on the face of record revealed. Learned Counsel has placed reliance on the judgment of Supreme Court in Babboo alias Kalyandas and Others Vs. State of Madhya Pradesh, and argued that the Supreme Court in that case held that power of review may be exercised on discovery of new and important matter or evidence which, after exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made or it may be exercised where some mistake or error apparent on the face of the record is found. No such situation was obtaining in the present case. To the same effect, judgment of Division Bench of this Court in Pema Ram and Anr. v. Rajendra and Ors. 2002 WLC (UC) 526 is relied on. It is, therefore, prayed that review petition be dismissed.

I have given my anxious consideration to the rival submissions and perused the material available on record.

Noticing at the outset the objection that review petition should not be entertained after enormous delay of sixteen years as it is not bonafide, suffice it to observe that this Court initially issued notices on application u/s 5 of the Limitation Act, 1963 seeking condonation of delay filed by the Housing Board. Curiously, in the review petition this time, it was the writ Petitioner, who despite service of notice, did not choose to appear to oppose the application u/s 5 of the Limitation Act filed for condonation of delay. The delay in filing the review petition was condoned by this Court vide order dated 16/3/2011. This order possibly cannot be re-opened and re-examined to hold that delay should not have been condoned. Once delay has been condoned, review petition has to be decided on merits, therefore, objection of review petition being not bonafide also cannot be sustained.

Sole basis on which the review petition has been filed and in fact, this was the basis of deciding the writ petition also, is the letter of the Chief Estate Officer of the Housing Board No. 4017 dated 21/12/1994. In this letter, it was stated by the Estate Officer that since Petitioner''s Advocate has informed to the Advocate of the Housing Board that if a house is allotted to the writ Petitioner in Jawahar Nagar Scheme, he was prepared to withdraw the writ petition. It was informed that if he is willing to get the house allotted in Jawahar Nagar Scheme at the present cost of construction, he should send his written consent to the Housing Board so that further steps may be taken. Aforesaid letter has been made basis for deciding the petition by this Court although direction as contained in the operative part of the judgment, that was ultimately issued was with an alternative condition directing the Housing Board that in case if a HIG house or structure of a house was not available for allotment in Jawahar Nagar Scheme, and it was impossible to allot the HIG house or plot in Jawahar Nagar Scheme, then entire amount deposited by the Petitioner, be returned to him along with yearly break interest @18% p.a. within the period of three months.

Dr. P.C. Jain, learned Counsel appearing for the Housing Board has made two fold submission in this regard. Firstly, he has argued that this letter was not available in their record and that it was not known as to who wrote this letter on behalf of the Housing Board. Had the order been passed in the presence of the counsel/representative of the Housing Board, this fact could have been brought to the notice of the court. Secondly, even if the letter was acted upon, what the Petitioner ought to have done at the maximum was to withdraw the writ petition and approach the Housing Board for allotment of the house, if any such house was available in that scheme. In fact, no house was available in Jawahar Nagar Scheme and even the alternative direction for refund of the amount @18% p.a. on yearly break interest is onerous, rate of interest being exorbitantly high.

Supreme Court in Delhi Administration supra has held that there is a real distinction between a merely erroneous decision and a decision which can be characterised as vitiated by "error apparent". Review is not an appeal in disguise. What has to be therefore seen is whether the present review petition is in fact a review or an appeal under the guise of review or the judgment of which review has been sought for, suffers from any error apparent on the face of record, which is one of the basic requirements for review of judgment. In the present case, even if we ignore the alternative plea set up by the learned Counsel for the Housing Board that whereabouts and genesis of the letter dated 21/12/1994, which has been placed on record are not known, the fact remains that letter contained an offer to the Petitioner to withdraw his writ petition and upon his doing so, Housing Board would consider his case for allotment of the house in Jawahar Nagar Scheme. What was required of the Petitioner was to withdraw the writ petition and then approach the Housing Board rather than insisting for judgment on merits. It is in this context that the absence of the counsel for the Housing Board assumes significance although independently, learned Counsel for the review Petitioner may be justified in arguing that absence of counsel after service of notice cannot by itself be a ground for review. When however, the provisions of Order 47 Rule 1 CPC are analyzed, it is evident that apart from an error apparent on the face of record, on discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review, an order can be reviewed also "for any other sufficient reason". In the present case, record indicated that the Housing Board engaged one Shri B.D. Agarwal as their Advocate, who soon after admission of writ petition on 29/4/1993 filed his Vakalatnama on 29/4/1993, abstained from hearing on all dates till ultimately when the writ petition was heard and decided on 4/11/1997. Since the writ petition was originally filed by writ-Petitioner for quashment of the allotment letter dated 15/12/1992 issued in his favour by the Rajasthan Housing Board with the direction to the Board to re-calculate the cost of land and the cost of construction and ancillary service charges (ASC) with interest and demanding due credit of the amount, which he had already deposited with them and issue of fresh demand note with the further prayer that demand of lease amount be quashed and set-aside and a direction be issued to the Respondents to allot the structure of the independent HIG house, as is evident from the prayer clause. Despite the fact that copy of the letter dated 21/12/1994 had been placed on record of writ petition with an application by copy thereof does not appear to have been served either on Shri B.D. Agarwal or on the Housing Board and prayer clause of the writ petition was not got amended so as to ask for allotment of the alternative house in Jawahar Nagar Scheme or for refund of the amount with interest @18; p.a.. These directions having been issued in absence of the counsel/representative of the Housing Board, certainly would be a reason analogous to the main ground of review envisaging Order 47 Rule 1 CPC, which would fall within the purview of "for any other sufficient reason", especially when Petitioner on his own showing has responded to this letter belatedly 21 on 21/1/1997.

Review and recall of the order dated 4/11/1997 however would not preclude the writ-Petitioner to get the writ petition properly amended so as to incorporate the aforesaid as alternative prayers and incorporate the subsequent facts. However, in view of the discussion made above, I am satisfied that the Rajasthan Housing Board has made out a case for review and recall of the judgment dated 4/11/1997.

In the result, this review petition is allowed and the judgment dated 4/11/1997 passed in the writ petition is recalled. Writ petition is ordered to be listed before the regular bench for appropriate orders.

There will be no order as to costs.