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2022 DIGILAW 2099 (RAJ)

Durgalal Meena v. State of Rajasthan

2022-07-22

MAHENDAR KUMAR GOYAL

body2022
ORDER 1. Although, the matter comes up on an application (1/2022) filed by the respondents seeking vacation of ex-parte interim order dated 23.10.2021; however, on the request of learned counsels for the respective parties, the writ petition was heard on its merit at this stage. 2. Challenge in the writ petition is to the order dated 02.08.2021 passed by the respondent-Rajasthan Housing Board whereby, the allotment of houses made in favour of the petitioners has been cancelled on account of non-deposition of the requisite amount as per the allotment letter. 3. The relevant facts in brief are that the respondent-Board introduced a housing scheme in town Nainwa, District Bundi floating Special Registration Scheme-2007 (SRS). The houses were categorised in six classes such as economically weaker group, low income group, middle income group and higher income group amongst others. The petitioners are applicants under different categories. In the lottery drawn by the respondents for allotment of houses, all the petitioners stood successful and in terms of demand letter dated 27.07.2011, they deposited the seed money. The petitioners were issued allotment letters dated 29.06.2020 raising an additional demand towards cost of the house. Contending that the petitioners have already deposited the entire amount and on account of delay on the part of the Board in raising construction of the houses, this additional demand has been created, this writ petition has been filed for quashing the additional demand and the letters cancelling the allotment on their failure to meet the same. 4. In their reply, the respondents, disputing and denying the averments made in the writ petition, submitted that as per the scheme, the successful applicants were required to pay cost of the houses as assessed at the time of issuance of allotment letter and vide letter dated 27.07.2011, the petitioners were required to pay seed money only. 5. Learned counsel for the petitioners submitted that they have deposited the entire allotment amount in pursuance of the notice dated 27.07.2011 and had the respondent-Board raised construction of the houses within reasonable time, there would not have been any occasion for demand of additional cost. 5. Learned counsel for the petitioners submitted that they have deposited the entire allotment amount in pursuance of the notice dated 27.07.2011 and had the respondent-Board raised construction of the houses within reasonable time, there would not have been any occasion for demand of additional cost. Referring to the contents of para 12 of the writ petition wherein, it is averred that the respondent-Board informed them that due to its dispute with the contractor, the scheme got delayed resulting into levy of additional charges, the learned counsel submitted that there is no specific rebuttal to these averments by the respondents in their reply and hence, for the fault of the respondents-Board, the petitioners could not have been saddled with the additional demand. Elaborating his submissions, learned counsel submitted that delay also invited application of Goods and Service Tax. He further submitted that the additional demand also reflects enhanced cost of the land, which, in view of the fact that it belonged to the respondents-Board, is illegal. He, therefore, prayed that the writ petition be allowed, the order dated 02.08.2021 as also the additional demand raised vide allotment letter dated 29.06.2020 be quashed and set aside and the respondent-Board be directed to allot them houses treating the seed money deposited by them in pursuance of demand dated 27.07.2011 as complete payment towards cost of the house. 6. Per contra, learned counsel for the respondents, drawing attention of this Court towards the provisions of the SRS, submitted that the demand raised vide letter dated 27.07.2011 represented the seed money only and the petitioners were liable to pay the cost of the house determinable on its completion only. He submitted that the respondent-Board allots houses on the principle of 'No Profit No Loss'. He submits that contention of the learned counsel that delay in construction occurred on account of dispute between the Board and the contractor is misplaced. Learned counsel submitted that the demand raised vide letter of allotment dated 29.06.2020 is based on actual cost incurred by the Board in construction of the houses and the petitioners have been paid interest also on the seed money while adjusting the aforesaid amount from the total cost. He submits that barring the petitioners, other successful applicants have deposited the amount as per the allotment letters issued to them and they have already been allotted their respective houses. He submits that barring the petitioners, other successful applicants have deposited the amount as per the allotment letters issued to them and they have already been allotted their respective houses. He, therefore, prayed for dismissal of the writ petition. 7. Heard. Considered. 8. The salient features of SRS relevant for disposal of the present controversy are as under: '6- The applicants have two options for payment of allotment price; i.e., cash payment and higher purchase system. 10- The applicants are required to pay different registration charges based upon category of house applied for. 18(A)- The successful applicants in the draw of lottery were to be issued reservation letter requiring them to pay seed money in three installments. (C) - The seed money was liable to be adjusted against the allotment cost. 21- The Housing Board is fully authorized to determine cost of the houses and its decision in this regard shall be final. 22- Since, the Board allots houses on the principle of 'No Profit No Loss', the final cost determined it at the time of allotment shall be valid and no objection against it shall be entertained. It further provides that all measures will be adopted by the Board to minimize the cost but, in case the cost increased, it would be borne by the allottees. 23- After allotment of the houses, applicants would be informed to deposit the balance amount by issuance of allotment letter and failure to deposit the amount shall entail its cancellation.' 9. The petitioners have applied for allotment of house(s) under their respective categories fully aware of the aforesaid terms and conditions. From the Clauses 18(A)(C), 21, 22 and 23 of the Scheme, it is apparent that initially the successful applicants in the draw of lottery were required to deposit the seed money in three installments with payment of actual cost only after issuance of the allotment letter. Thus, it does not lie in the mouth of petitioners to contend that in response to the letter dated 27.07.2011, they have deposited the entire allotment amount with no further liability to make any payment. 10. The second submission of the learned counsel for the petitioners that delay in construction on the part of the respondent-Board has given rise to escalation in price and they are not liable to pay the same, does not merit acceptance. 10. The second submission of the learned counsel for the petitioners that delay in construction on the part of the respondent-Board has given rise to escalation in price and they are not liable to pay the same, does not merit acceptance. Under the SRS, the Board has not extended any promise to the successful applicants to allot them houses within any stipulated period. Further, the petitioners have failed to substantiate the averments contained in para 12 of the writ petition and this Court is not satisfied that merely because the respondents did not specially rebut these averments in their reply, the averments are taken to be true on their face value. Even otherwise also, this Court under writ jurisdiction is not equipped to assess the escalation in cost on account of delay, if any, in raising construction and the petitioners have also not placed any material on record to substantiate their submission. 11. Insofar as submission of the learned counsel for the petitioners qua escalation is land cost is concerned, the writ petition is bereft of any factual foundation in this regard. There is not a whisper of averment in this regard in the entire writ petition which is based on two fold grievances, i.e., after payment of the entire allotment price in response to the letter dated 27.07.2011, the demand raised vide allotment letter dated 29.06.2020 was bad in law and the price escalated on account of delay on the part of the Board in raising construction. Therefore, contention of the learned counsel for the petitioners qua increase in the land cost cannot be countenanced. 12. Similarly, contention of the learned counsel for the petitioner with regard to levy of GST on account of delay in construction, cannot be countenanced in view of specific condition in the SRS providing for assessment of cost of the house at the time of issuing allotment letter and if by that time, any tax was leviable, the allottees were liable to pay the same. 13. Even otherwise also, the matter pertains to a non-statutory contract and the petitioners have applied for allotment of the houses being well aware of the terms and conditions of the scheme which clearly provided that the allottees will have to pay the allotment price assessed by the Board at the time of issuance of allotment letter which depends on various factors. In identical circumstances, a Division Bench of this Court has, in case of Rajasthan Housing Board & Ors. vs. Awasan Mandal Parijat Uncha Aywarg Sangarsh Samiti: AIR 1996 Rajasthan 47, held as under: '46. The jurisdiction vested in the High Court under Article 226 of the Constitution of India is to be used only sparingly and that too only in exceptional cases where there is a violation or infringement of rights of the citizens and further where there is no other adequate, alternate or specific remedy. No case of infringement of any right of the petitioner has been made out. 47. The matter can be viewed from another angle. How would a writ lie in respect of non-statutory contract. The Scheme containing the terms and conditions was too well known to the allottees before they put in the applications for the purpose of registration. It was indicated sufficiently well that the price that was being fixed tentative and approximate and that the final costing would be made at the completion of the houses and the increased amount would be charged from the allottees. 48. We are of the view that the writ petition in the present case was neither maintainable nor competent. We further hold that the petitioner had no locus standi to challenge the action of the Board. We also find that highly disputed questions of fact and accounting were involved in the matter, which just could not have been permitted to be raised in the extraordinary writ jurisdiction of this Court. We also hold that since it was pure and simple a non-statutory contract, the parties to the lis are governed by the terms and conditions laid down in the Scheme. The same could not form a subject matter for interference under Article 226 of the Constitution of India. It is also held that no writ of mandamus could be issued to the Board to allot a particular house to an allottee at a given price or to reduce the price that was being asked for.' 14. The aforesaid judgment was upheld by the Hon'ble Apex Court of India vide its judgment dated 20.03.1997. 15. Their lordships of the Hon'ble Apex Court have, in case of Bareilly Development Authority & Anr. vs. Ajai Pal Singh & Ors.: (1989) 2 SCC 116 , held as under: '19. The aforesaid judgment was upheld by the Hon'ble Apex Court of India vide its judgment dated 20.03.1997. 15. Their lordships of the Hon'ble Apex Court have, in case of Bareilly Development Authority & Anr. vs. Ajai Pal Singh & Ors.: (1989) 2 SCC 116 , held as under: '19. The respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, they voluntarily registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of Clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have re-produced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the BDA has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not lose sight of the fact that the BDA did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the increased monthly installments. On the contrary, the option was left over only to the allottees. In fact, the respondents in Civil Appeal No.2809 of 1986 except the four above mentioned have unconditionally accepted the changed terms and conditions.' 16. Since, the demand vide allotment letter dated 29.06.2020 is based on SRS and the allotment made in favour of the petitioners has been cancelled vide letter dated 02.08.2021 on their failure to meet the demand raised vide allotment letter, this Court does not find the same to be suffering from any illegality. 17. The upshot of the aforesaid discussion is that the writ petition is devoid of merit and is dismissed accordingly. 18. The pending application stands disposed of accordingly.