Swaran Lata v. Rajasthan Housing Board — 1996 DIGILAW 504 (RAJ)

Honble KOCHHAR, J. – The facts giving rise to this writ petition are as under:– (2). One Shri Jug Lal Dhana (the deceased) had applied for being allotted a house under the `Kaptaru Scheme of the Rajasthan Housing Board in Mansarover Colony, Jaipur. Alongwith the application form he had deposited a sum of Rs. 5,000/- and in the application he had mentioned the name of the petitioner as nominee to whom the house was to be allotted in case of his death. The deceased had further deposited a sum of Rs. 35,000/- on 31.3.1991 and a sum of Rs. 20,000/- on 11.7.1991 and, in this way, a total of Rs. 60,000/- was deposited by him. The Rajasthan Housing Board (the respondent No. 1) in order to allot the houses to the applicants concerned followed the system of lottery and the deceased was one of the successful applicants and, thereafter, vide the allotment/possession letter dated 29.4.1992 (Annex. 1), the Estate Manager, Circle-II, Jaipur (the respondent No. 2)informed the deceased that House No 121/1 in the Mansarover Colony, Jaipur had been allotted to him on Hire Purchase basic and he was required to pay the monthly instalments and other dues as mentioned in the said letter. The deceased died on 25.5.1992. The petitioner sent the information about the death of the deceased to the respondents No. 1 and 2 and approached the respondents for depositing the amount in terms of the letter (Annex. 1), but the amount was not accepted by the respondents and, thereafter, she on her own submitted all documents (Annex. 2) with regard to death of the deceased and no objection declarations of the heirs of the deceased. Instead of transferring the allotment in favour of the petitioner, vide order dated 8.12.1992 (Annex. 3) issued under the signatures of the respondent No. 2 the allotment of the house in question in favour of the deceased was cancelled and a copy of the said order was addressed not to the petitioner but to the deceased, who had already expired. Instead of transferring the allotment in favour of the petitioner, vide order dated 8.12.1992 (Annex. 3) issued under the signatures of the respondent No. 2 the allotment of the house in question in favour of the deceased was cancelled and a copy of the said order was addressed not to the petitioner but to the deceased, who had already expired. The petitioner, claiming to be entitled to be substituted as the allottee in place of the deceased, as his no- minee, has approached this court by filing this writ petition on the ground that according to the rules of the Housing Board the house is to be transferred in the name of the petitioner being the nominee of the deceased and further that the deceased had also executed his last will in her favour in respect of the house in question. She has thus prayed that the order dated 8.12.1992 (Annex. 3) be quashed and the respondents No. 1 and 2 be directed to give the possession of the house in question to the petitioner and she should also be awarded the costs. In the writ petition, only the Rajasthan Housing Board and the Estate Manager, Circle II, of the Rajasthan Housing Board, Jaipur were impleaded as the respondents No. 1 and 2 respectively. The writ petition and the stay application were put up before the court on 12.1.1993 when R.S. Kejriwal, J., while issuing notices of the writ petition and the stay application directed the respondents to maintain status-quo in regard to possession of the house in question and were restrained from allotting it to anyone else. The arguments on the stay application were heard by I.S. Israni, J. on 2.3.1993 when the stay order was confirmed and the petitioner was directed to implead the legal representatives of the deceased and file the amended cause title so that notices could be issued to them as well and, thereupon, two sons of the deceased namely Dariya Singh and Subhash and one daughter of the deceased namely Santro were impleaded as the respondents No. 3 to 5 respectively and notices were issued to them. The respondents No. 3 to 5 in their joint reply, have admitted that the deceased has nominated the petitioner as the person to whom the allotment of the house was to be transferred in case of the death of the deceased and that they had also given no objection certificate. They did not oppose the petition or the prayer made therein and stated that they had cordial relations with the petitioner. (4). The writ petition has been opposed by the respondents No. 1 and 2. In their joint reply they have admitted that the house in question was allotted to the deceased on Hire Purchase basis and have also not disputed that in the application submitted by the deceased he had mentioned the name of the petitioner as his nominee but have contended that simply because the name of the petitioner has been mentioned as the nominee, she did not acquire any right of allotment of the house in question to be transferred in her name and that the petitioner had submitted a photo copy of the death certificate of the deceased and vide letter dated 1.9.1992 (Annex. R-1) the petitioner was informed that she had not mentioned the name of the legal representatives of the deceased and moreover photo copy of the death certificate of the deceased was not attested and that vide reply letter (Annex. R-2) the petitioner had stated that she was the nominee of the deceased, who had also executed last will in respect of the house in question in her favour and that she enclosed alongwith that letter the attested copy of the death certificate of the deceased and of the will stated to have been executed by the deceased in her favour and that the alleged will is not a will in accordance with law and, thereupon, doubt arose in the minds of the officers of the respondent No.1 and, on inquiry, the respondent No. 1 found that the documents like no objection certificates etc. were not genuine. The prayer of the petitioner for quashing the order (Annex. 3) and for a direction to the respondents No. 1 and 2 to allot the house in question to the petitioner as the nominee of the deceased, has also been opposed. (5). I have heard the learned counsel for the parties and have also perused the record of the case. (6). 3) and for a direction to the respondents No. 1 and 2 to allot the house in question to the petitioner as the nominee of the deceased, has also been opposed. (5). I have heard the learned counsel for the parties and have also perused the record of the case. (6). Shri R.B. Mathur, the learned counsel for the petitioner has contended that in view of rule 19 of the Kalptaru Scheme the respondents No. 1 and 2 are bound to substitute the petitioner as the allottee of the house in question as the legal representatives of the deceased had not come forward to claim substitution or to make the payment of the instalments in question. (7). The contention of Shri GC Garg, the learned counsel for the respondents No. 1 and 2, on the other hand, after taking instructions from Shri Niranjan Joshi, Estate Manager, Circle II, of the respondent No. 1 and on the basis of the record brought by Shri Joshi, is that after the receipt of the copy of the will and the no objection certificate of the legal heirs from the petitioner an inquiry was made and it was found that the will was not genuine and that the signatures of the legal representatives of the deceased on the no objection certificate had been obtained by misrepresentation and further that it was decided to direct the petitioner to obtain a succession certificate from court and to produce it. (8). Before examining the contentions of the learned counsel for the parties, it will be advantageous to reproduce rule 19 of the Kalptru Scheme, which reads as under :– ^^19- vkosnd dh e`R;g dh fLFkfr esa edku dk vkaoVu 1- ;fn iathdj.k ds ckn vkosnd dh e`R;q gks tkrh gSa ,oa mlds ifjokj okys fdr tek djkus esa l{ke ugha gS rks Hkh mldk iathdj.k fujLr ugha fd;k tk;sxkA ,slh fLFkfr esa iathdj.k dk gLrkarj.k vkosnd ds }kjk euksuhr O;fDr ds uke fd;k tkosxkA drkZ dh e`R;q gksus ij fdrsa tek ugha djokus dh fLFkfr esa eaMy laLFkkxr for ysdj] euksuhr mRrjkf/kdkjh dks fdjk;k Ø; i)fr ds vk/kkj ij ;fn ml iath;u kgj esa edku miyC/k gS] rks tgkWa rd gks lds pkj ekg esa izkFkfrdrk ls edku miyC/k djk;sxkA** (9). Kalptaru Scheme, under which the deceased had got himself registered by depositing Rs. Kalptaru Scheme, under which the deceased had got himself registered by depositing Rs. 5000/-, provides for payment of instalments money towards the costs of the house till the entire payment is made and the applicant becomes the owner of the house by paying all instalments in respect thereof and further that he continues to be registered applicant till he becomes the owner of the house. Rule 19, quote above, provides that if after he is registered for allotment of a house, the applicant dies and his legal heirs/family members are unable to pay the amount of the instalments, the registration cannot be cancelled but has to be transferred in the name of the nominee. In other words, in case of death of an allottee even if his legal heirs do not pay the amounts of instalments the allotment cannot be cancelled but has to be transferred in favour of the nominee if the nominee agrees to pay the instalments for the house in question. (10). It is the admitted case of the parties that the petitioner has sent the information about the death of the deceased to the respondent No. 1 and 2 vide letter dated 6.11.1990 (Annex. 2) and had requested that she being the nominee of the deceased should be substituted in his place and an affidavit, indemnity bound, no objection certificate from the legal heirs of the deceased besides copies of the will stated to have been executed by the deceased in respect of the house in question in favour of the petitioner and of the death certificate of the deceased were sent to the respondent No. 2. In reply thereto, vide letter dated 1.9.1992 (Annex. R.1) the respondent No. 2 simply asked the petitioner to mention her relationship with the deceased, who had nominated her name as his nominee and was also asked to send the attested copy of the death certificate of the deceased as the one earlier sent along with her application was not attested and, in reply thereto, vide letter (Annex. R. 2), the petitioner had sent attested copy of the death certificate and had again requested that she be substituted in place of the deceased and the amount payable by way of instalments be accepted from her. R. 2), the petitioner had sent attested copy of the death certificate and had again requested that she be substituted in place of the deceased and the amount payable by way of instalments be accepted from her. The case set up by the respondents No. 1 and 2 in reply to the writ petition that the petitioner had not furnished the particulars of the legal heirs of the deceased in spite of she being asked to do so vide letter dated 1.9.1992 (Annex. R-2), is false on the face of it as the bare reading of the abovesaid letter shows that the petitioner had been asked to mention her relationship with the deceased, who had nominated her name as the nominee in respect of the house in question. Admittedly, the respondent No. 2 had received the enclosures of the letter dated 6.11.1992 (Annex. 2) which included the no objection certificate from the legal heirs of the deceased and, as such, the particulars of the legal heirs were known to the respondent No. 2. Since no legal heirs of the deceased had come forward to make the payment of the amount due by way of instalments and to get substituted in place of the deceased as the allottee of the house in question and an application has been received from the petitioner for being substituted as such, if the rules had been followed, the respondent No. 2 would have issued notice to the legal heirs of the deceased calling upon them to pay the amount of instalments for being substituted in place of the deceased, failing which, the petitioner would get a right to be substituted as such. The respondent No. 2 instead of following the abovesaid procedure, is stated to have conducted some inquiry without giving any notice to the petitioner or even sending any intimation about the result of the inquiry to her. Even assuming that in spite of rule 19, quoted above, the respondent No. 2 could have initiated an inquiry and in the inquiry it was found that the no objection certificate had been obtained from the legal heirs of the deceased after making some misrepresentation and the legal heirs were interested in paying the amount and getting substituted as the allottees in place of the deceased, the allotment could have been transferred in favour of the legal heirs of the deceased. No reason is coming forward as to how even in such a case the allotment of the house in question could be cancelled. Although, it has been stated at the Bar by Shri Garg on the basis of the record that after the inquiry it was decided to ask the petitioner to furnish the succession certificate, but no letter has been produced on record in this respect asking the petitioner to do the needful. It is also not forthcoming as to how the copy of the order dated 8.12.1992 (Annex. 3), cancelling the allotment of the house in question, was marked to the deceased, who, to the knowledge of the respondent No. 2, had died by that date and it was not considered necessary to send a copy thereof to the petitioner, who had made the application for being substituted in place of the deceased. (11). Looking from any angle, the action of the respondents No. 1 and 2 was not in accordance with law. As noted above, in reply to the writ petition the respondents No. 3 to 5 have admitted the claim of the petitioner and have not objec- ted to the prayer that she be substituted as the allottee in place of the deceased in respect of the house in question. There is thus no reason why the writ petition should not be allowed. (12). Consequently, I allow the writ petition and quash the order dated 8.12.1992 (Annex. 3) cancelling the allotment of the house in question and direct that the petitioner should be substituted as the allottee in place of the deceased and be given possession of the house in question in terms of allotment/possession letter dated 29.4.1992 (Annex. 1) without any delay. In view of the fact that the respondents No. 1 and 2 over looked the rules framed by the respondent No. 1 itself and acted wrongfully in cancelling the allotment of the house instead of substituting the petitioner as the allottee in place of the deceased and the petitioner has been made to go in for litigation unnecessarily, it is further directed that the respondent No. 1 shall pay to the petitioner a sum of Rs. 10,000/- by way of costs and also that the amount of costs should be paid immediately and it should be recovered from the officer responsible for the wrongful act abovesaid after fixing responsibility. (13). 10,000/- by way of costs and also that the amount of costs should be paid immediately and it should be recovered from the officer responsible for the wrongful act abovesaid after fixing responsibility. (13). The writ petition stands disposed of accordingly.