Sukhdev Raj Gupta vs The Chandigarh Housing Board

Hemant Gupta, J.—Challenge in the present writ petition is to a communication dated 09.01.1991 (Annexure P-3), whereby the allotment of dwelling unit No. 152/1, Sector 45-A, (HIG-I), Chandigarh, was cancelled.

The Housing Board advertised for allotment of dwelling units (HIG-I) in Sector 45-A, Chandigarh. The petitioner applied for dwelling unit by enclosing a demand draft of Rs. 11,250/- as the initial deposit. The petitioner was allotted dwelling unit No. 152/1, (HIG-I), Sector 45-A in the draw of lots. A letter of allotment was issued on 31.07.1990. As per conditions of the allotment letter, the petitioner was required to pay Rs. 1,31,481/- and to submit documents mentioned therein within 30 days from the date of issue of letter, failing which the allotment was contemplated to be cancelled. The relevant clause reads as under:

In case you accept the allotment you shall deposit a sum of Rs. 1,31,481/- and the documents as detailed below within 30 days from the date of issue of this letter (the last day being hereinafter referred to as the due date) failing which allotment/tenancy shall be deemed to have been cancelled and your deposit will be refunded after forfeiting such amount as provided in clause 19 of this letter:

The petitioner neither deposited the amount demanded nor furnished the documents within time granted, which led to the issuance of letter dated 09.01.1991 that the allotment stands cancelled. Though, the petitioner claims to have deposited Rs. 1,50,000/- on 19.12.1990 and another sum of Rs. 3,000/- but it is asserted that in fact such amount was deposited by Respondent No. 3 to whom, the petitioner sold the dwelling unit. The petitioner was asked to apply for refund of the amount deposited. The petitioner submitted a representation to the Chairman of the Board, which was considered on 25.07.1994 and again on 08.09.1994 and declined.

In reply, the stand is, that the cancellation was intimated on 09.01.1991, whereas the writ petition was filed on 14.09.1994 i.e. after three years. The same was liable to be dismissed on the ground of delay. It is also pointed out that an FIR was lodged against the petitioner as he had sold his rights and interest in the dwelling unit allotted to him through execution of a power of attorney and the alleged purchaser lodged an FIR against him. It has also been pointed out that the petitioner sought an extension for depositing the amount by 30.09.1990, but the same was not deposited. Therefore, the cancellation of the allotment was approved by the Chairman of the Board on 22.12.1990. The letter of cancellation was received back undelivered with the report that ''address is not available''. The letter was again sent by hand and was informed that ''no such person is residing at the given address''. The cheque of refund of Rs. 1,45,566/- was prepared and the petitioner was requested to submit an advance receipt to take refund. It is asserted that the petitioner is not entitled to recall of the cancellation of allotment letter.

The letter of allotment is an offer of allotment of a dwelling unit. Such allotment was required to be accepted within the time granted. The failure to convey acceptance within the time granted leads to the fact, there is no concluded contract. Similar issue has been examined by this Court in another Judgment of Division Bench of this Court in CWP No. 17397 of 2010 titled as " Rajinder Kumar Rawal and others vs. State of Haryana and other" decided on 24.4.2012, in which one of us was member (Hemant Gupta J.) examined other judgments of the Supreme Court and observed as under:-

The Hon''ble Supreme Court Jasbir Singh Chhabra and Others Vs. State of Punjab and Others, approved the findings recorded by the Division Bench of this Court and held that by making an application pursuant to the advertisement and on being declared successful in the draw of lots, no promise is made out.

The Hon''ble Supreme Court in case Greater Mohali Area Development Authority and Another Vs. Manju Jain and Others, allowed an appeal, wherein the allotment made to the petitioner stood cancelled for failure to deposit 25% of the amount within 60 days of the receipt of the allotment letter. The Hon''ble Court held that mere draw of lots/allocation letter does not confer any right to allotment. It was held to the following effect:-

Mere draw of lots/allocation letter does not confer any right to allotment. The system of draw of lots is being resorted to with a view to identify the prospective allottee. It is only a mode, a method, a process to identify the allottee i.e. the process of selection. It is not an allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment.

In the aforesaid case, the Hon''ble Court allowed the appeal while holding that the writ petitioner has not sent the acceptance letter within the time granted in the letter of allotment.

In view of the above discussion, we find that no right of the petitioner (s) has been infringed when the authorities decided not to proceed with the allotment of plots, but to conduct public auction of such plots".

Thus the failure to accept the offer by deposit of the amount, does not lead to a concluded contract. In view of the aforesaid judgments, we do not find any merit in the present writ petition. Accordingly, the same is dismissed.

Learned counsel for respondent No. 2 points out that in fact a sum of Rs. 1,53,000/- was deposited by her husband in December, 1990 and that the said amount should be refunded to respondent No. 2 as the cheque prepared by the Board has not been encashed by the petitioner.

Thus, the liberty is granted to respondent No. 2 to apply for refund the amount to the Housing Board, Chandigarh. The Housing Board shall consider the same and shall refund the amount to the person or his legal heirs, who has deposited the same along with interest @ 6% per annum.