NAWAL KISHORE TOSHNIWAL vs RAJASTHAN HOUSING BOARD

THE complainant applied for registration of a house in Higher Income Group (HIG) in the year 1979. He deposited Rs. 7000/- as registration fee alongwith the application on 3.1.1980. THE registration certificate was issued to the complainant vide letter dated 20.8.80. In the year 1982 the registration fee was enhanced to Rs. 3000/- . THE complainant deposited Rs. 3000/- on 14.6.82 vide challan No. 11283. THE complainant has stated that his brother Shri Brij Kishore Toshniwal also applied for registration vide application No. 57649 in HIG and deposited Rs. 7000/- under the same scheme of 1979. THE complainant was not allotted the house. It has been alleged by the complainant that the opposite party (the Rajasthan Housing Board) did not send any letter to the complainant for depositing GRS and Seed money amounting to Rs. 30,000/- and as such the complainant did not deposit the amount Rs. 30,000/- . Allotment letter was issued to the complainant on 26.4.90 which contains the details of the cost of house and other expenses were also shown. THE details were divided into four categories A, B, C & D. THE complainant has mentioned the amounts of the categories. A representation was submitted by the complainant to the opposite parties for excessive charging of cost and penalty. He requested for refund of excess charges for cost of construction and to waive the penalty on seed money at item No. 2 of category ''D'' of the allotment letter dated 26.4.90. THE complainant did not receive any reply. He has deposited the amount and took possession of the house on 20.4.90. Accordingly to the complainant the seed money was deposited under protest. THE opposite parties replied to the representation on 29.5.90 and rejected it. THE complainant has challenged the excess amount at item Nos. 1 & 2 in category ''A'' item Nos. 1, 3 & 5 in category ''B'' and item No. 2 in category ''D''. Against the letter of the Board dated 29.5.90 the complaint was filed praying that the opposite parties may be directed to provide house No. 239.03 sq. metre in HIG in Jawahar Nagar, Jaipur as per the scheme or in the alternative the opposite parties may be directed to refund excess amount to the. complainant which is Rs. 1,23,253 and damages amounting to Rs. 197600/- for the loss and inconvenience caused to the complainant. THE com plainant submitted his affidavit in support of his complaint. Photostat copies and the receipts and the allotment letter dated 26.4.90 and other letters were submitted.

THE opposite parties submitted the version of the case opposing the complaint. Some preliminary objections were also raised. On merit it was submitted that for the year 1980-81 from the registered applicants options were demanded whose registrations were made in 1979. In the option the complainant wanted a first storeyed house and requested that such a house may be allotted to him adjoining his brother''s house. THE adjoining houses are possible in the ground floor and not possible in the first storey. THE complainant was allotted the house after drawing the lottery on the basis of the priority. THE persons in whose favour the lotteries were drawn, they were allotted houses. It was submitted that when there is a possibility of the allotment of the house to the registered applicants then and then only the seed money is demanded. In regard to the deposit of the seed money reference was made to the office order in Para 3 of the version of the case. Regulation No. 8-A of the Disposal of Property Regulations, 1970 was also referred. Under what circumstances interest would be charged on the seed money that was also mentioned. It was pleaded that the complainant has instituted a case/writ in a Court for the relief. He was allotted a house on 26.4.90. Interest was recovered on the seed money according to the rates. It was stated that there are allottees of 1979 who have not been allotted the houses, but the complainant was allotted the house because of the Court case. It was denied that any penalty on seed money was recovered from the complainant. It was submitted that 10% increase in the cost of the house was only an estimate for the year 1979, that is not applicable in 1990. Increase in the cost of house was sought to be justified. THE seed money of Rs. 30,000/- was realised in two instalments. It was submitted that the complainant has taken possession of the house after satisfying about its condition. Claim for compensation was denied. The complainant filed a rejoinder to the version of the case reiterating the averments made in the complaint and traversing the pleas taken by the opposite parties in the version of the case. In support of the complaint the complainant submitted his affidavit. A copy of the writ petition, affidavit etc. were submitted with the rejoinder. A reply to the rejoinder was submitted on behalf of the opposite parties on 29.4.91. It is recorded in the order sheet dated 29.4.91 that both the learned Counsel are in agreement that the rejoinder and the reply both may be kept on record. The complainant submitted additional affidavit as evidence in support of the complaint. On behalf of the complainant written arguments were submitted on 25.10.91. On 6.12.91 the opposite parties submitted written arguments in reply. No oral arguments were advanced.

After going through the complaint, version of the case, rejoinder, reply to the rejoinder, affidavits documents submitted by the parties and the written arguments of both the parties, it was recorded in the order sheet dated 25.5.92 that before dictating the order in the case it is necessary to have certain clarifications from the learned Counsel for the parties. However, learned Counsel for the parties have not appeared and we are left with no alternative but to proceed with the. dictation of the order.

THE points raised by the complainant in the complaint arose before us in several cases. THEy were considered in Kanhaiyalal Mathur v. Housing Board 90 RLT Part-III 31. and subsequent decisions. It was observed in Kanhaiyalal''s case (supra) as under: "Before we proceed further, it may be mentioned that in Jyoti Prakash v. THE Rajasthan Housing Board (1979 WIN (UC) 101) it has been held that the Registration Scheme and the allotment schemes are distinguishable and no right of allotment of house is conferred on any applicants registered under the Registration Scheme and they cannot challenge the scheme. It was held in 1985 WLN (UC) 266 by a Division Bench of the Rajasthan High Court that the Board is competent to increase the price beyond ceiling in certain circumstances and one is, increase in the cost of construction. In S.B. Civil Writ Petition No. 1625/86 Deep Chand v. Rajasthan Housing Board, decided on 24.9.86 the Housing Board Registration Scheme, 1979 was considered. It was held that the registration is after only allotment and registration and reservation cannot be equated. No right accrued to the complainant for the allotment of the house by Housing Board Scheme, July, September 1973."

It was affirmed in Kanhaiyalal Mathur v. R.H.B. 1991 CSMR CAS 118. The National Commission observed : "As has been pointed out by the State Commission the allotment scheme has to be distinguished from the registration scheme and no right of allotment to a house is conferred on any applicant by mere registration under a registration scheme. Registration and reservation of allotment cannot be equated and reservation of accommodation follows allotment. Consequently the State Commission has rightly observed that no right accrued to the complainant for the allotment of a house by the Housing Board on registration of the appellant in 1973 et. seq. in the various draws made under the registration allotment schemes introduced from time to the name of the appellant did not figure in the draws made for allotment. There was no contractual obligation on the part of the Board to allot a house to the appellant."

THE Rajasthan High Court in D.B. Civil Writ Petition No. 451/1987 decided on 16.7.87 rules as under: "A number of petitions of a similar nature has come up before this Court and this Court came to the conclusion that mere registration does not entitle the applicant to get the house allotted at a price mentioned in the booklet. THE allotment of the house has to be at the price when the house is allotted. It is well known that there is escalation of the prices and the price of the house which would have been in the year 1981 when the registration was held out cannot be the same in the year 1985-86. THE petitioner cannot be said to have been given any assurance that the house shall be allotted to him at a price of Rs. 1,11,900/- which was mentioned in the booklet in the year 1981. THE doctrine of promissory estoppel is hardly attracted in the present case as no assurance can be said to have been given that the house shall be allotted to him at a price of Rs. 1,11,900/- ".

The Rajasthan High Court in S.B. Civil Writ Petition No. 1621/86 decided on 24.9.86 YOP Bhutan v. Rajasthan Housing Board has observed as under : "Mr. Sharma has submitted before me the Housing Board Registration Scheme 1979. In that very clause, it has been mentioned that as far as practicable the rates shall not be changed after reservation. The reservation is after only allotment; registration and reservation cannot be equated. This very rule provides that the rates can be revised looking to the increase in the costs. Mr. Sharma submits that it can be raised only upto 10 percent. It is true that prices have not increased after reservation but after registration. In the registration estimated costs is given and the increasing cost cannot be overlooked. There is no case of hostile discrimination and the persons allotted have been treated equally and on the same amount. Even if there is a dispute about the increased rate, it can be agitated before the competent Court of civil jurisdiction where the disputed question of facts can be determined, such as, what is the increase has rightly been assessed or not and, if assessed, whether it has rightly been applied or not, can only be considered by the competent Court of civil jurisdiction as in such case the disputed questions of facts are involved."

In Nemichand Patni v. Rajasthan Housing Board (DB Civil Writ Petition No. 451/87 decided on 16.7.87) the facts were that the petitioner in that case was allotted a house by the Board through its Chairman. The house was allotted at the price of Rs. 2,86,250/- and its possession had also been delivered to the. petitioner. The grievance of the petitioner was that he applied for registration of a house in MIG category at Jaipur under General Registration Scheme 1973 and deposited a sum of Rs. 5,000/- on 25.9.73. Thereafter the petitioner further deposited a sum of Rs. 2,000/- on 5.7.80 for getting his registration converted for a house in HIG category. A house in HIG category was reserved for him in Jawahar Nagar in lottery No. 3 for the year 1980-81. The petitioner was informed in 1984 that cost of the house has not been finalised and allotment letter would be issued soon after the finalisation of the same. The house was allotted to him on 26.6.85. The petitioner was surprised to learn that he was required to pay a sum of Rs. 2,78,817.44 as against Rs. 1,11,900/- as held out to the petitioner by the Board at the time of registration. The petitioner submitted a representation and prayed for justice but of no effect. Even the house allotted to him was being used as store house. Later on, another house was allotted to the petitioner after cancellation of earlier house and the petitioner was called upon to pay a sum of Rs. 2,86,150/- . The Division Bench of the Rajasthan High Court consisting of Hon''ble Mr. Justice M.B. Sharma and Hon''ble Mr. Justice Farooq Hasan observed as under: "A number of petitions of a similar nature have come up before this Court, and this Court came to the conclusion that mere registration does not entitle the applicant to get the house allotted at a price mentioned in the book-let. The allotment of the house has to be at the price when the house is allotted. It is well known that there is escalation of the prices and the price of the house which would have been in the year. 1981 when the registration was held out cannot be the same in the year 1985- 86. The petitioner cannot be said to have been given any assurance that the house shall be allotted to him at a price of Rs. 1,11,900/- which was mentioned in the booklet in the year 1981. The doctrine of promissory estoppel is hardly attracted in the present case as no assurance can be said to have been given that the house shall be allotted to him at a price of Rs. 1,11,900/- ."

IT is significant to note that it was observed that the allotment of the house has to be at the price when the house is allotted. The condition mentioned in the Booklet was taken into consideration and it was held that no assurance can be said to have been given that the house would be allotted to him at the price of Rs. 1,11,900/- . In view of the aforesaid premises the writ petition was dismissed.

THE principles laid down by the Rajasthan High Court were brought to the notice of the National Commission in Kanhiyalal Mathur''s case (supra) and it has agreed with them. Following those principles the other cases were decided. The interest on seed money was rightly charged from the complainant. No question of charging penalty arises in this case. 10% increase cannot be perpetuated. It was only an estimate of 1979. It is also to be remembered that about general costing the complainant cannot raise objection because costing is always done according to the rules and the matter of costing stands finally settled by the Rajasthan High Court and the State Commission.

The complainant has given a declaration as under:- "Certified that I have taken over possession of the above house/flat on 21.5.90. I have inspected the said house which is complete in all respects."

While giving the acceptance the complainant has clearly mentioned "I hereby duly accept the allotment made to me in Mansarover Scheme at Jaipur and agree to abide by all the conditions and also agree to pay the disposal price as shown in the demand notice schedule time. I am complying with the requirements and submit the same within time." An undertaking was furnished by him Now it is not open to him to re-open all those issues of the completed contract in all respects. He is estopped from doing so. The grievance of the costing is not at all well founded. Costing is done as per rationalised principles. The cost of two houses of different measurement, given possession on different point of time cannot be equated with each other. Unequals can''t be compared with equals. Even equals cannot be equated with each other because of so many reasons.

THE complainant has claimed compensation. An objection has been taken by the opposite parties about the limitation as the matter pertains to 1981.Apart from the fact that the claim for compensation is a stale claim the complainant has not substantiated it by producing any evidence. Even in the complaint, the complainant has stated nothing. THE complainant has claimed compensation without any foundation and had inflated it. He is not entitled to the refund of the excess amount of Rs. 1,23,253/- and also to the amount Rs. 1,97,600/- as damages. For the reasons aforesaid the complainant is not entitled to any relief. The complaint shall stand dismissed. Parties are left to bear their costs of the complaint. Complaint disallowed.