Rajasthan High Court - Jaipur
Chariman R H B And Ors vs Shri Dharmendra Andors ... on 24 October, 2024
Bench: Manindra Mohan Shrivastava, Ashutosh Kumar
[2024:RJ-JP:44917-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 76/2016
1. The Chairman, Rajasthan Housing Board, Jyoti Nagar, Janpath
Road, Jaipur.
2. The Housing Commissioner, Rajasthan Housing Board, Jyoti
Nagar, Janpath Road, Jaipur.
3. The Chief Engineer, Rajasthan Housing Board, Jyoti Nagar,
Janpath Road, Jaipur.
4. The Chief Estate Manager, Rajasthan Housing Board, Jyoti
Nagar, Janpath Road, Jaipur.
5. The Deputy Housing Commissioner, Circle-I, Rajasthan
Housing Board, Sanganer, Jaipur.
----Appellants-Respondents
Versus
1. Shri Dharmendra S/o Shri Ummed Chand Mathur, aged 48 years.
2. Shri Loon Karan S/o Shri Surajmal Ji Kumhar, aged about 50 years.
- Both residents of 508 "Ratan Bhawan" IV B-Road, Sardarpura, Jodhpur
3. Sanjay Chobisa S/o Shri R.L. Chobisa, aged 48 years, R/o 14- A Alkapuri, Tulsi Vila, Rani Road, Udaipur.
----Respondents-Petitioners
For Appellant(s) : Mr. Anuroop Singhi
Mr. Tarun Kumar Verma with
Ms. Palak Saraswat &
Mr. Aditya Khandelwal
For Respondent(s) : Mr. P. P. Mathur
Mr. Sudhanshu Joshi
Mr. Banvari Lal Saini
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ASHUTOSH KUMAR Judgment 24/10/2024
1. This intra Court appeal is directed against the order dated 05.11.2015 passed by the learned Single Judge, vide which, the (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (2 of 10) [SAW-76/2016] writ petition filed by the respondents-petitioners has been allowed and a mandamus has been issued to the appellants for allotment of Plinth Level Houses on 236 sq. mtr. plot in Sector 26, Pratap Nagar.
2. The writ petition was filed by 3 petitioners namely, Shri Dharmendra, Shri Loon Karan and Shri Sanjay Chobisa seeking issuance of writ of mandamus in the matter of their claim for allotment of plots on the factual premise that though they had deposited registration fee towards allotment of plot under the special registration scheme for allotment of plinth level houses for employees in the year 2002, the appellants arbitrarily and illegally withheld allotment despite amount already been paid by all the petitioners from time to time, as demanded by the appellants.
3. Defending their action, the appellants had come out with the case that right from the beginning, the respondents did not comply with the conditions with regard to deposit of entire registration fee amount, though later on it was condoned. It is further submitted that towards allotment of plinth level houses, the writ petitioners were also required to take further steps towards deposit of seed amount but even that was not done until 2014, whereas, the amount was required to be deposited under the scheme soon after the Board's resolution dated 30.11.2006. Before the petitioners could deposit the seed amount, the policy itself underwent change as the Board of Directors of the Housing Board, vide its resolution dated 16.07.2009, resolved not to allot plinth level houses in future and, therefore, the writ petitioners could not have claimed the allotment as of right only on the ground that certain pre-deposits were made by them. (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (3 of 10) [SAW-76/2016]
4. The arguments raised by the writ petitioners found favour with the learned Single Judge.
5. The learned Single Judge held that once the writ petitioners had deposited the registration fee along with interest as per the resolution dated 30.11.2006 and further noting that once similarly situated applicant-Manju Sharma was allotted house under a lottery dated 30.03.2007, and further taking into consideration that the process of allotment remained stalled because of pending litigation and interim orders operating, allowed the writ petition and issued directions in favour of the respondents-writ petitioners, giving rise to this appeal.
6. Assailing the correctness and validity of the order passed by the learned Single Judge, learned counsel appearing for the Rajasthan Housing Board strenuously and vehemently urged before us that the learned Single Judge committed perversity in recording the finding contrary to the admitted facts of record, particularly, with regard to compliance of various terms and conditions regarding deposit of registration fee by the respondents-writ petitioners. He would further submit that even though with some delay and after condonation, vide resolution dated 30.11.2006 of the Board, balance payment towards registration fee with interest was paid, the seed amount was not deposited for long. In the meantime, petitions were filed and further allotment were stayed by the High Court. During pendency of the petition and interim order in operation, the Board abandoned the earlier policy of 2002 vide resolution dated (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (4 of 10) [SAW-76/2016] 16.07.2009, and decided not to allot plinth level houses. On the basis of the decision taken by the Board, the Housing Commissioner passed an order dated 18.08.2009 discontinuing the policy of 2002. The writ petitioners having not challenged the aforesaid Board's resolution dated 16.07.2009 and subsequent order dated 18.08.2009 of the Housing Commissioner, are not entitled to any relief.
7. On the other hand, supporting the order of the learned Single Judge, learned counsel for the respondents-writ petitioners submitted that even though initially registration fee was shortly paid, subsequently, the policy decision was taken and vide resolution dated 30.11.2006, delay was condoned and the minimum amount required to be deposited as registration fee was further reduced. As per the resolution, the writ petitioners deposited the required amount of registration fee with interest, therefore, they fulfilled the said condition of depositing the registration fee. It is next submitted that it was for the appellants to issue letter requiring the writ petitioners to deposit the seed money but that was not done and extending undue favour towards Manju Sharma, lottery was drawn in her favour on 30.03.2007, excluding the writ petitioners for no reason. It is further argued that even after lottery drawn in favour of Manju Sharma, the writ petitioners were not issued any letter for depositing the seed money and because of the judicial intervention in other pending matter at the instance of deputationists, allotments remained stayed. Learned counsel for the respondents-writ petitioners would further submit that insofar as subsequent change of policy (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (5 of 10) [SAW-76/2016] vide resolution dated 16.07.2009 followed by order dated 18.08.2009 is concerned, that is only prospective in nature and does not effect those who had already applied and deposited the registration fee. The text and tenor of the order dated 18.08.2009 of the Commissioner also clearly shows that the decision would be applicable for future allotments and not in those cases where allotment is already under process in implementation of the scheme of 2002. Learned counsel for the respondents-writ petitioners further pointed out that in fact, the appellants never intended to operate the scheme retrospectively otherwise they would not have required the writ petitioners to deposit the seed money. The only reason for not proceeding with the allotment was pendency of a dispute and interim order passed in S.B. Civil Writ Peittion No. 2480/2007 titled Shivraj Singh Poonia & Ors. Vs. Chairman, Rajasthan Housing Board & Ors. filed on 04.04.2007. Once that petition was dismissed on 28.10.2015, there was no impediment in making allotment in favour of the writ petitioners, therefore, the order of the learned Single Judge does not warrant any interference.
8. We have heard learned counsel for the parties and perused the order passed by the learned Single Judge, as also the records of the case.
9. In order to grant relief to the writ petitioners, the learned Single Judge has recorded finding of fact that though initially the writ petitioners had short deposited the registration fee, later on, the requirement itself was altered and a decision was taken by the (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (6 of 10) [SAW-76/2016] Board requiring deposit of reduced amount for registration fee though with interest. Learned Single Judge has also recorded finding that the writ petitioners had deposited the short registration fee along with interest, as per the resolution dated 30.11.2006. Learned Single Judge further held that once the writ petitioners had deposited the registration amount, as soon as the interim order came to an end with the dismissal of the petition filed by Shivraj Singh Punia & Ors.(supra), the allotment was required to be made in favour of the writ petitioners. As far as the Board's resolution dated 16.07.2009 followed by Commissioner's order dated 18.08.2009 is concerned, learned Single Judge has recorded finding that this decision was to operate prospectively in future and not to effect the process of allotment under the existing scheme.
10. Learned counsel for the appellants is not in a position to raise any factual dispute with regard to the fact that even though initially the respondents-writ petitioners had short deposited the registration fee under the scheme of allotment of 2002, the Allotment Committee of the Board, in its meeting dated 30.11.2006, decided to allot all its employees who had short paid the requisite registration fee along with their applications under the scheme of 2002, to cure the deficiency and deposit the short amount in issue along with interest thereon. Learned counsel for the appellants is also not in a position to raise factual dispute on the aspect that after a letter was sent to the petitioners on 26.07.2007, the writ petitioners deposited their reminder (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (7 of 10) [SAW-76/2016] registration fee with interest on 18.07.2007, 19.09.2006 and 06.07.2007 respectively.
11. Learned counsel for the appellants could not point out from the scheme that there was any condition incorporated therein requiring the intending allottees to deposit seed money within a particular period on their own soon after registration is done. How much amount is to be deposited and when it was to be deposited, was required to be ascertained, informed and intimated by the Housing Board to the writ petitioners, which was never done until 07.03.2014. It is an undisputed fact that certain disputes arose when the Housing Board started making allotment to deputationists who were not employees of the Rajasthan Housing Board. A writ petition came to be filed. One of such deputationists filed writ petition titled Shivraj Singh Punia & Ors. Vs. Chairman, Rajasthan Housing Board & Ors. It is also not in dispute that an interim order was passed in that case, due to which all further allotments remained in abeyance. Interim order was passed in the aforesaid case on 01.06.2007. Therefore, it is quite clear that because of pending dispute in the Court and interim order operating since 01.06.2007, the appellant themselves did not proceed with allotment even though the respondents-writ petitioners had deposited short registration fee along with interest as per the resolution dated 30.11.2006 within the stipulated period. In fact, the appellants themselves issued letter on 07.03.2014 to all the petitioners for depositing the seed money. This is an undisputed factual position.
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12. One of the main submission of learned counsel for the appellants is that in view of subsequent decision taken by the Directors of the Housing Board in its meeting dated 16.07.2009, followed by the order passed by the Housing Commissioner on 18.08.2009, further allotment could not be made.
13. We have perused the resolution dated 16.07.2009 as also the order dated 18.08.2009 passed by the Commissioner, Housing Board. There is nothing either in the resolution or in the order which seeks to apply the decision retrospectively. In fact, in the resolution of the Board of Directors, there is nothing to show that it was intended to affect all those cases for allotment which were pending upon deposit of registration fee. The process could not be completed because of the pending litigation and interim orders passed by the High Court. It is a well settled legal position that administrative decisions operate prospectively and not retrospectively. Once under a scheme for allotment the writ petitioners had deposited the registration fee as directed by the appellants from time to time, it was also expected that the applications of the writ petitioners be brought to its logical conclusion, which could not be done for the obvious reason that there was a stay order operating. Furthermore, the argument of the learned counsel for the appellants that the subsequent policy decision affected all the pending cases, is belied from the fact that the appellants themselves issued notice for depositing the seed money by issuing letter dated 07.03.2014, which was never withdrawn. Therefore, the respondents cannot be permitted to play hot and cold at the same time. Having issued letter for (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (9 of 10) [SAW-76/2016] deposit of seed money on 07.03.2014, which is subsequent to Board's resolution dated 16.07.2009 and Commissioner's order dated 18.08.2009, the appellants cannot be allowed to approbate and reprobate. Therefore, the contention in this regard is rejected. There is, however, one aspect of the matter which needs appropriate modification in the impugned order. Learned Single Judge has directed the appellants to allot plinth level houses on payment of cost at which the house was allotted to Manju Sharma on 30.03.2007, alongwith further interest thereon at the rate of 10 percent per annum till the date of allotment. The basis of the said allotment appears to be that on 30.03.2007, all the petitioners were entitled to allotment upon deposit of short balance amount of registration fee with interest as per the resolution dated 30.11.2006. However, the records speak and the learned Single Judge itself has recorded that a writ petition was filed and interim order was passed on 01.06.2007. Therefore, the appellants cannot be blamed for non-allotment with effect from 01.06.2007 till dismissal of petition filed by Shivraj Singh Punia & Ors.(supra) on 28.10.2015. All the writ petitioners deposited seed money as per the letter dated 07.03.2014. It is also borne out from the record that on 19.08.2015 house allotment lottery was held and all the writ petitioners were approved for allotment. A writ petition was filed in the year 2015 and was allowed vide impugned order dated 05.11.2015.
14. Had this Court come to the conclusion that the resolution dated 16.07.2009 followed by the order dated 18.08.2009 was sought to be applied retrospectively, without challenge laid to the (Downloaded on 22/11/2024 at 11:54:59 PM) [2024:RJ-JP:44917-DB] (10 of 10) [SAW-76/2016] resolution and order, no relief could be granted to the writ petitioners. Further, as we have held that the resolution and the order operates only prospectively and not retrospectively, the writ petitioners cannot be non-suited on the ground that they have not challenged validity of the resolution dated 16.07.2009 and the order dated 18.08.2009 of the Housing Commissioner.
15. Accordingly, we are of the view that the order of the learned Single Judge to the extent it directs appellants to make allotment on the basis of rate prevalent on 30.03.2007, cannot be allowed to stand and the order to that extent is modified and it is directed that the rate which was prevalent on 06.11.2015 would be applicable. The order of the learned Single Judge to the extent it directs allotment of plot does not warrant any interference.
16. The appeal is accordingly partly allowed.
(ASHUTOSH KUMAR),J (MANINDRA MOHAN SHRIVASTAVA),CJ Jayesh/377 (Downloaded on 22/11/2024 at 11:54:59 PM) Powered by TCPDF (www.tcpdf.org)