P.K. Agnihotri vs Rajasthan Housing Board and Others

Mohammad Rafiq, J—This writ petition has been filed by P.K. Agnihotri praying for declaring the action of respondents in changing the petitioners'' registration for allotment of MIG-B House from hire-purchase to outright sale basis, to be illegal, arbitrary, mala-fide and unconstitutional. Further prayer is made for a direction to respondents to treat the case of the petitioner in similar manner with that of Shri U.C. Daga, since the petitioner deposited all the installments of seed money according to demand letter dated 24.02.1988 and further that petitioner be held entitled to get allotment of independent house of MIG-B category and not a flat, at par with said Shri U.C. Daga and accordingly, the respondents be required to modify the allotment letter dated 13.05.1994 and handover him possession of the house of MIG-B category. Prayer is also made for award of compensation of Rs. 1,00,000/- to the petitioner.

Case set up by the petitioner in the memorandum of writ petition is that he was employee of the respondent Rajasthan Housing Board working on the post of Junior Engineer from from 05.05.1982 to 08.06.1984. A special registration scheme, 1982 was notified by the respondent Board for allotment of houses to its employees. Petitioner got his name registered for allotment of house in MIG-b category and deposited a sum of Rs. 4600/- vide challan dated 25.01.1983. His name was registered in the Special Registration Scheme, 1982 for allotment of MIG-B house, vide No. P. 64/G-iii/hp/hb/82 for sale of house on higher purchase basis. Name of the petitioner was illegally not included in the draw of lottery for allotment of house in order to favour the persons with lower priority, when the petitioner raised this objection, the respondents, realizing the mistake, issued letter of demand dated 24.02.1988 in respect of seed money. The petitioner deposited first installment of seed money of Rs. 6000/- on 22.03.1988 and second installment of Rs. 6000/- on 03.09.1988. A similar demand notice was issued to Shri U.C. Daga on 24.02.1988 demanding from him the same type of installments of seed money. Shri U.C. Daga was vide allotment letter dated 26.08.1992, allotted the MIG-b house in Mansarovar Colony on hire purchase basis, but no such allotment was made to the petitioner, thus the petitioner was subjected to hostile discrimination. The petitioner also learnt that the respondent Board has vide allotment letter dated 22.07.1992, made allotment of house to one Shri D.R. Jakhar. Only when the respondent Board prepared another statement for draw of lottery on 15.10.1993, his name was included in the last at Serial No. 90.

Although, petitioner''s name was included for allotment of MIG-B house available in the year 1984-85 on hire purchase basis, but he was for that allotment ignored with ulterior motive, when the petitioner approached the respondent Board repeatedly, he was told that allotment of house could be made to him only on outright sale basis and he was pressurized to give in writing to express his willingness to accept allotment of house on outright sale basis. Since the petitioner had no house, he under pressure gave in writing on 28.08.1993. The respondent Board still did not make allotment of house, therefore, the petitioner submitted representations on 21.02.1994 and 03.03.1994. Finally, an allotment letter was issued to the petitioner on 13.05.1994 allotting him House No. 80/130 in Mansarovar scheme on outright sale basis in a multi-storied building on much higher cost, and not an independent house. The petitioner then sent a notice for demand of justice to the respondent Board asking for allotment of independent house and met the respondents on 02.08.1995 along-with an application for allotment of independent MIG-b category house on hire-purchase basis even in unfinished state, in place of House No. 80/130. Petitioner has then approached this court by filing writ petition.

Shri S.R. Surana, learned senior counsel for petitioner, argued that action of the respondents is wholly discriminatory, arbitrary and violative of Article 14 of the Constitution of India. Case of the petitioner is similar to that of Shri U.C. Daga and Shri D.R. Jakhar, who were also employees of respondent Board and were allotted houses in MIG-B category, in 1988 large number of MIG-B category houses were ready for making allotment. The petitioner was also called on 24.02.1988 to pay two installments of seed money. He made payment of those two installments. Despite that, the respondent Board did not allot the house of MIG-b category to the petitioner and on the other hand such allotment was made to Shri U.C. Daga and he was issued allotment-cum-possession letter on 26.05.1992. Name of Shri U.C. Daga was included in the draw of lots and therefore it can be possible for him to secure allotment but no reason whatsoever has been assigned by the respondent Board why name of petitioner was not included in the lottery. Had his name been included in the lottery timely, he would have also secured allotment of the house. Since the petitioner applied for allotment of independent house on hire-purchase basis, there was no reason why he should be offered a flat in multi-storied building. Respondents realized their mistake when the petitioner objected to non inclusion of his name in the lottery and accordingly issued him allotment letter on 13.05.1994 in his favour but this was not acceptable to petitioner on outright sale basis, as he did not apply for a flat in multi-storied building. The respondents are under obligation to allot an independent house of MIG-B category to the petitioner on hire-purchase basis. Petitioner is low paid employee and therefore he opted for allotment of house on hire-purchase basis. For such persons, ''hire-purchase'' system was evolved so that the cost of house may be paid in easy installments because it is highly impossible to make lump-sum payment of the house at one time, as such, the demand of amount on ''outright sale'' basis is illegal, arbitrary and unconstitutional, that too when on less cost of plot and construction and on ''hire-purchase'' basis such houses had been allotted to Shri U.C. Daga and other similarly situated persons.

Shri S.R. Surana, learned senior counsel for petitioner, has invited attention of the court towards additional affidavit filed by petitioner on 15.04.2009. It is contended that first lottery was opened on 30.06.1989 for the Board employees. Had the name of the petitioner been included in that lot, he would have also got the allotment. There was no reason to exclude his name because his registration was not cancelled, it is argued that one Shri Dharmendra Gopal Kamthan was junior to petitioner but he was included in the lottery dated 30.06.1989. Thereafter on 10.01.1992 Plot No. 21/187 measuring 156 square meters was allotted to Shri D.R. Jakhar, who was Junior Engineer in the respondent Board. At the relevant time but had left the service of the respondent Board and was former employee. His name was included in the lottery dated 10.01.1992 but in the second time also the name of the petitioner was not included for no reason. Name of Shri U.C. Daga, who was junior to petitioner, was included in the first lottery and name of petitioner was excluded, it is argued that those who were registered in the year 1987, were included in the lottery but registration of the petitioner was of much earlier period, it is argued that even in third lottery, that was drawn on 30.03.1992, name of petitioner was not included. Petitioner was in regular service or the respondent Board from 05.05.1982 to 08.06.1984 and that it was during that time that he applied under the Special Registration Scheme, 1982 and his registration was not cancelled. The respondent Board had taken a decision on 02.03.1983 that the persons, those who were in one year service of the respondent Board and left the services, would be eligible to get the priority. On that basis, three persons were included in the lottery held on 30.03.1993, whereas name of petitioner has been excluded. Thus, the lotteries were opened for four times but name of petitioner was not included.

Learned senior counsel for petitioner has relied on judgment of the Supreme Court in Rajasthan Housing Board through its Chairman Vs. Shivraj Singh Bhandari, (2006) 4 SCALE 52 : (2006) 9 SCC 390 : (2006) 1 UJ 477 , and argued that case of the petitioner is covered by the said judgment, which was decided against the respondent Board.

Shri A.K. Gupta, learned senior counsel for respondents Board, opposed the writ petition and submitted that house could not be allotted to petitioner only on the basis of mere registration. Originally the registration of the petitioner was made for allotment of house under MIG-B category but he on his own submitted an application on 12.10.1993 to the respondent Board that he wanted for allotment of house on ''outright sale'' basis. On his application, the allotment of house was made to petitioner on ''outright sale'' basis, it is denied that the respondent Board or any of its officials ever compelled the petitioner to opt for allotment of house on ''outright sale'' basis. Petitioner himself requested for change of category, since the houses were available for sale under ''outright sale'' basis, in view of specific request of the petitioner, house was allotted to him on ''outright sale'' basis, in the earlier draw of lotteries, prior to decision dated 30.01.1993, name of petitioner could not have been considered under the quota reserved for the employees of the respondent Board, it is denied that the respondents have manipulated in the record so as to deprive the petitioner of allotment of the house. Petitioner served the respondent for the period from 05.05.1982 to 08.06.1984 and thereafter he left the service of the respondent Board. His name could not be included in the draw of lots because he ceased to be employee of the respondent Board. Later on, the respondent Board in its 162nd meeting held on 30.01.1993, considered the matter of such employees who were on deputation with the respondent Board and the employees who left the services of respondent Board after some period and it was decided those employees who are on deputation with the respondent Board can get themselves registered for the house under the Special Registration Scheme started for the employees of the respondent Board, it was also decided that the former officers/employees of the respondent Board, who had completed two years of service with the respondent Board and got appointment elsewhere, could also be allotted the house under the quota of the employees of respondent Board, it was thereafter that the name of the petitioner could be considered.

Learned senior counsel submitted that there was no compulsion for the petitioner to opt for ''outright sale'' basis, it was the petitioner himself who, by application dated 12.10.1993, requested for change of category because at that time the houses were available in that category. Prior to 30.01.1993, he could not be considered eligible in the lottery that was drawn on 15.01.1993, wherein 90 flats were allotted. Case of Shri U.C. Daga, and that of petitioner is not similar. Shri U.C. Daga is a regular employee of the respondent Board and does not fall in the category of former employee of the respondent Board. Similarly, Shri D.R. Jakhar is also a regular employee of the respondent Board. Name of the petitioner was not included in the draw of lots for allotment of house on ''outright sale'' basis as per the decision of the meeting of the Board held on 30.01.1993. Learned senior counsel for respondents Board argued that in response to the petitioner''s application dated 12.10.1993, the letter of allotment of house was issued to the petitioner by the respondent Board and he was given letter dated 15.07.1995 for depositing the amount of Rs. 3,26,489/- till 31.07.1995 with clear stipulation that if he fails to deposit the amount then allotment will be deemed to be cancelled. Petitioner did not comply with that condition and therefore the order of cancellation of allotment of house thus had taken effect from 31.07.1995, which order has not been challenged by the petitioner.

At the same time, the argument of learned senior counsel for the respondent Board is that since the petitioner has not challenged the cancellation of allotment of the house, the writ petition be dismissed.

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

In the cited judgment of the Supreme Court, the facts are that respondent Shivraj Singh Bhandari got himself registered with the Rajasthan Housing Board on 27.09.1973 for allotment of a house in the middle income group category in Jaipur city, in 1979, he requested the Board to alter his category from the middle income group to the higher income group and such change was duly allowed by the Board. The respondent was accordingly informed by letter dated 25.05.1979 and he was requested to submit his option for the type of plot, which he was interested in and pursuant thereto, he submitted his option for a house measuring 40'' x 90''. His claim was considered in the lottery held on 18.06.1979 but he was not amongst the successful candidates. His case as again considered in the lottery held in the year 1980-81 but again he remained unsuccessful. The Board on 17.03.1982 published a notice in a daily newspaper Rajasthan Patrika for auction of residential plots and shops, which was challenged by the respondent by way of writ Petition No. 401/1982 before this court. The respondent also questioned the policy of reservation made in favour of employees of the Board, Members of Parliament and State legislative Assembly by way of writ Petition No. 606/1986. The writ petitions were allowed by the High Court holding that the action of the Board is arbitrary and discriminatory. The Board was directed to provide to respondent a house measuring 40'' x 60'' in Jawahar Nagar Scheme in Jaipur within a period of two months from the date of submission of the certified copy of the order passed by the High Court. Aggrieved by the said order of learned single Judge, the Board preferred two special appeals. The Division Bench concurred with the judgment of learned single Judge and accordingly dismissed the appeals, it was then that the Board approached the Supreme Court. The Supreme Court in those facts held that the respondent was treated unfairly inasmuch as persons who were allegedly ineligible were also included in the draw and were ultimately provided with houses to the exclusion of respondent, who was otherwise entitled.

The cited judgment of the Supreme Court is distinguishable on facts therefore is not applicable to the present case.

Case of the petitioner in the present case is that many ineligible persons were included in the draw of lots and allotted the house. He has given instances of Shri U.C. Daga and D.R. Jakhar. According to the respondents, those persons continued to be in the service of the respondent Board whereas the petitioner left the services of the respondent Board after serving for about two years.

It is true that the petitioner, after serving he respondent Board for more than two years, had left the services of the respondent Board and got employed elsewhere, but the fact is that his registration remained intact but his name was not included in the draw of lots held on 30.06.1989. As per the respondents, the name of the petitioner in the draw of lots was not included because he had left the services of the respondent Board and that the decision with regard to inclusion of the name of ex-employees of the respondent Board, who had left the services after serving for two years, was taken on 30.01.1993. In between the petitioner himself submitted a representation requesting to the respondents Board for allotment of flat on ''outright sale'' basis on 12.10.1993. The letter of allotment was issued to the petitioner on 15.07.1995. The petitioner, despite being required to deposit the amount of Rs. 3,26,489/-, did not deposit the same within the prescribed period, in this connection, the respondent Board has issued an office order dated 02.03.1993, wherein apart from those employees working in the respondent Board on deputation, all such employees who have left the services of the respondent Board and were registered for allotment of the house, were held entitled to be considered for allotment of house provided that they should have rendered at-least two years of service with the respondent Board.

The respondent Board issued letter-cum-notice to the petitioner on 15.07.1995 calling upon him to deposit a sum of Rs. 3,26,489/- by 31.07.1995, failing which it shall be presumed that his allotment shall be treated as cancelled. Even though, the petitioner has alleged that he was pressurized to submit second option for allotment of house but there is no reliable evidence to substantiate the element of compulsion.

So far the argument of the respondent Board that the petitioner has challenged the cancellation of allotment, suffice it to say that the petitioner had immediately, after issue of order dated 15.07.1995, approached this court, when the matter was listed before this court 1997, it was given out by learned counsel for the respondents Board that a decision has been taken by the respondent Board for allotment of house to the petitioner and time was sought to enquire whether or not actual allotment of house is made, when the matter was listed again on 17.04.2007, learned counsel for the respondent Board brought to the notice of the court that on 13.05.1994 House No. 80/130, Mansarovar, was allotted to petitioner, but at the relevant time, he had protested the said allotment and claiming independent house as allotted to other similarly situated applicants as alleged by him in the petition. The court again granted time to the counsel for the parties to seek instructions. Thereafter, on 07.05.2007 and 05.12.2007, the matter was adjourned to enable the learned counsel to seek instructions.

The letter dated 15.07.1995 is a demand notice with clear stipulation that if the petitioner fails to deposit the amount of Rs. 3,26,489/- with interest thereon by 31.07.1995, the allotment of the house shall be treated as cancelled. The respondents have not produced on record any formal order of cancellation of allotment of house. The letter dated 15.07.1995 does not directly cancel the allotment of house made in favour of the petitioner. Though, the petitioner did not formally challenge this communication, which has been produced on record by the respondents much later on, but he has all along been contesting this matter with the respondents and therefore that would not be of any effect on maintainability of present writ petition which is pending for last about two decades.

In the facts of the case, although the direction for allotment of independent house in MIG-B category may not be issued in favour of the petitioner but at the same time the house, which was allotted to him when the matter has remained pending before this court for almost 19 years, the respondent Housing Board ought to provide to petitioner House No. 80/130 or any other house in the same category in Mansarovar Scheme, if the petitioner deposits the demanded sum of Rs. 3,26,489/- with interest at the prescribed rate.

In the result, writ petition is allowed in part to the extent that the respondent Housing Board shall provide to petitioner House No. 80/130 or any other house in the same category in Mansarovar Scheme, if the petitioner deposits the demanded sum of Rs. 3,26,489/- with interest upto date at the prescribed rate. The respondent Board for that purpose shall issue fresh demand notice to the petitioner within a period of one month from the date a copy of this order is produced before them. On deposit of the demanded sum thereafter, all other formalities including that of putting the petitioner in possession of the flat, shall be completed within next two months.

This also disposes of stay applications.