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Shankuntla and 3 ors. Vs. Chairman, Housing Board, Jaipur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petitions Nos. 1676, 1638 and 1854 of 1980 and 990 of 1987
Judge
Reported in1981WLN296
AppellantShankuntla and 3 ors.
RespondentChairman, Housing Board, Jaipur and anr.
DispositionPetition dismissed
Cases ReferredChandigarh and Ors. v. The Union Territory Chandigarh and Ors.
Excerpt:
rajasthan housing board (disposal of property) regulations, 1970 - rules 34 & 23--allotment of property--representations under rule 34--slip of eligible candidate not put in rotating drum--representation to cancel whole drawing of lot--held, it does not fall within scope of rule 34.;regulation 34 however deals with representations regarding selection of applicants for allotment of property. under this regulation representations can be made in regard to selection of one applicant or more than one, for example, on the ground that such applicant or applicants might not have been declared as eligible for allotment under clause (iii) of regulation 23 or the applications submitted for allotment might not have been entered in the application register. naturally in such cases if.....n.m. kasliwal, j.1. a short but interesting question calls for determination in these writ petitions. the rajasthan housing board (hereinafter called the board) a body corporate having perpetual succession and a common seal has been established under section 4 of the rajasthan housing board act, 1970 (hereinafter referred to as the act). under sub-section (2) of section 4 of the act it has been empowered to acquire, hold and dispose of property both movable and tmmovable and to enter into contracts and may by its corporate name sue and be sued and do all things and acts necessary for the purposes of this act. under section 26 the board is empowered to incur expediture and undertake work in any area in force under the act for the framing and execution of such housing scheme as it may.....
Judgment:

N.M. Kasliwal, J.

1. A short but interesting question calls for determination in these writ petitions. The Rajasthan Housing Board (Hereinafter called the Board) a body corporate having perpetual succession and a common seal has been established under Section 4 of the Rajasthan Housing Board Act, 1970 (hereinafter referred to as the Act). Under sub-Section (2) of Section 4 of the Act it has been empowered to acquire, hold and dispose of property both movable and tmmovable and to enter into contracts and may by its corporate name sue and be sued and do all things and acts necessary for the purposes of this Act. Under Section 26 the Board is empowered to incur expediture and undertake work in any area in force under the Act for the framing and execution of such housing scheme as it may consider necessary. Under Section 53 the Board may, from time to time, with the previous sanction of the State Government, make regulations consistent with the Act and with any rules made under the Act-(a) for the management and use of buildings constructed under any housing scheme; (b) the principles to be followed in allotment of tenements and premises; (c) the remuneration and conditions of service of the Housing Commissioner and other officers and servants of the Board under Section 15; (d) for regulating its procedure and the disposal of its business. The Board in exercise of its powers given under Section 53 of the Act has made Rajasthan Housing Board (Disposal of Property) Regulation, 1970 (hereinafter referred to as the Regulation). The Board under the scheme for registration of houses is laid down under Chapter III of the Regulation-procedure for disposal of properly, invited applications for registration of houses from 1st October, 1979 to 15th January, 1980, which was extended upto 30th January, 1980. The petitioners applied for registration in the higher income group and deposited the registration amount. After scrutiny of the applications the Board issued registration certificates to the petitioners. The Board then invited applications from the applicants registered under the scheme for participation in lottery No. 2 for allotment of houses under scheme of 1980-81 and the last date for filing applications was 30th August, 1980. The petitioners applied for participation in Jawahar Nagar out-right purchase scheme. The Board intimated vide publication dated 2nd October, 1980 published in 'Rajasthan Patrika' a daily news-paper that under lottery No. 2 of the housing scheme for the year 1980-81 the list of eligible Candidaes for Jaipur will be placed on 22nd October, 1980 out-side the Board's office. On 22nd October, 1980 the list of eligible candidates was pasted out-side the Board's office. The total number of eligible participants in the Jawahar Nagar Colony, Jaipur under outright sale (salaried group; for the flats of the size of 140.18 sq. metres was 93. Out of 93 participants, one Smt. Usha Upadhyaya did not participate in as much as she herself with-drew her application subsequently and another Shri P.S.R. Andrew (Ex-service man) was transferred to reserved category of Ex-service men. Thus, in the said list 91 applicants remained as persons eligible for participation in the said group. Subsequent to the above list, two more lists of eligible participants, whose objections were removed and thus made eligible for the second draw of 1980-81 for Jaipur City, were also notified by the Board. In the said two lists, there were five more candidates, who became eligible for participation in the aforesaid category namely, Sarva Shri Rajesh Paul, Dr. S.K. Soleman, Shri Radhey Shyam, Shri Bhagwana Ram and Shri S.K. Mehta. Thus the total number of eligible participants in the aforesaid category became 96 after addition of the aforesaid five applications. In case of Jaipur City the date for draw of lottery No. 2 was declared as 27th October, 1980 at 11.30 A.M. but the venue was not disclosed at that time and it was mentioned that the same will be declared later on. Thereafter by a notice dated 25th October, 1980 published in Rajasthan Patrika the venue and time was declared as 27th October, 1980 at 11.00 A.M. at Gandhi Nagar Club, Gandhi Nagar, Jaipur and the eligible candidates were asked to present themselves at the time of drawing of lottery. The petitioners and large number of other persons collected at the venue of the draw to witness the proceedings of the drawing of lottery. On 27th October, 1980 at Gandhi Nagar Club, many housing schemes were under allotment such as Nahari-ka-naka, Lal Koth scheme and Jawahar Nagar scheme far various types of houses of different categories. The petitioners participated in the Jawahar Nagar Scheme for higher income group under outright sale (salaried group). According to the petitioners the lottery for the higher income group for Jawahar Nagar scheme was started at 11.45 A.M. and at that time the Housing Officer announced the names of eligible candidates on mike for above noted categories as participants for the said lottery. The fact that the housing officer of the Housing Board announced the names of the participants on mike of the particular category, has been emphatically denied by the Housing Board in the reply submitted to the writ petitions. According to the petitioners their names and names of all other eligible persons were announced, but no one raised any objection at that time that his name has not been included in the list of eligible candidates. However this fact as contained in Para No. 16 of the writ petition is denied by the Board in its reply. It is however admitted by the Board that the draw of lottery for the higher income group under out-right sale for salaried persons started at 11.45 A.M. or near about. According to the system introduced for the drawing of lottery, slips of eligible candidates were put in a rotating drum and a man from public was called for taking out slips from the rotating drum one by one. The slip of the eligible applicant contained serial number of the slip, application number, name of the applicant, serial number of the applicant on the list, plot size, choice, terms of payment etc. Each of such slips was signed by the Secretary of the Board who is also the Member Secretary of the Property Allotment Committee.

2. In the instant case, there were 110 flats of the size of 114.80 sq. metres for the applicants of all categories in the higher income group. Out of these 110 flats, 31 flats were of the category of GA-1 (salaried group under reserved categories) to be allotted amongst 96 eligible candidates as stated above. However by mistake, slips of 95 candidates only including one slip of a wrong candidate, were placed in the rotating drum, out of which 31 slips were taken out one by one. After taking out the aforesaid 31 slips one by one, names of unsuccessful candidates, whose slips had still remained in the rotating drum were also announced one by one on mike to make sure that the slips of none of the eligible candidate had remained to be included in the said draw and none was deprived to participate in the draw. According to the petitioners they became successful in the draw and their names were announced on the mike and thus they became entitled to one house in the above noted scheme. The petitioner's case as disclosed in Writ Petition No. 1676/80 that as many schemes were under allotment and as the Housing Officer had announced it earlier that the house numbers will be alloted after the lottery for all schemes were completed, as such after the announcement of the petitioner's name on the mike the petitioner went to his house to convey this happy news to his family members. When the petitioner in the after-noon at 3.30 P.M. went to Gandhi Nagar Club for obtaining the order of allotment he was shocked to hear that the above noted scheme was made subject matter of re-draw of lot in his absence and the lottery was taken out for the higher income group out-right purchase for the salaried persons again in which the petitioner could not get success- The petitioner was told that no house will be allotted to him under this scheme. According to the petitioner at about 11.55 A.M. lottery was stated and all the 31 houses of above noted scheme were allotted to various successful persons including the petitioner, and almost all of them went to their houses. The action of re-draw of lot was taken in the absence of eligible and successful candidates. The petitioner came to know only after-wards at 4.00 P.M. when redraw of lot was over, that one person had raised objection regarding absence of his name in the slips when the draw of lottery in the above scheme was over and in absence of successful members including petitioner, the Chairman and Allotment Committee suo moto took the view that the allotments were invalid and fresh lottery should be drawn for the allotment of houses under the above scheme. According to the petitioner on making enquires he came to know that no chit of any eligible candidate was left and all the chits of eligible candidates were put into the box. If this would have been the cause for re-draw of lot, then the Chairman or the Allotment Committee should have made detailed enquiry regarding the missing of chit. But unfortunately no enquiry was made & in a botch-potch manner, the earlier draw of lot was cancelled and re-draw of lot took place. Thus in order to favour some one process of law was by passed and without any basis re-draw of lot for the same scheme was taken out. In this manner the whole lottery system is being frustrated to commit fraud and mischif and help the favourite eligible persons which must have been done for some illegal gratification. Under the rules there is no provision for drawing of the lot a second time.

3. The facts as disclosed by the Board in its reply are that when the names from left out slips who remained unsuccessful were read out by the housing officer one by one on mike and no slip remained in the rotating drum, one Shri S.K. Mehta from amongst persons present there raised an oral objection that he was one of the eligible candidates and his name had not been read over from any slip of successful or unsuccessful candidates and as such he had been deprived of participation in the said lot. On his objection, all 95 slips were again read over one by one by the housing officer on mike to all persons, who were present there and each slip was examined and checked thoroughly by the authorities concerned in the presence of the Members of the Rajasthan Housing Board and the Property Allotment Committee including Chairman of the Rajasthan Housing Board and all slips were tallied with the list of eligible candidates then and there. As a result of thorough checking and comparison, it was revealed at that time that two eligible candidates namely Shri Bhagwana Ram and Shri S.K. Mehta were deprived of participation in the said draw as their slips were not prepared and put in the rotating drum, out of which lots were to be drawn. It was further revealed that one slip of Shri V.S. Bhargava who was not an eligible candidate was wrongly included in the said draw, as his option was for higher income flats having a size of 239.038 sq. meters. When aforesaid glaring mistake came to the notice of the Chairman and other Members of the Property Allotment Committee who were present at the time of draw, they considered the whole matter and took a decision that there should be a re-draw after including all slips of the eligible candidates including that of Shri Bhagwana Ram and Shri S.K. Mehta and after excluding the slip of V.S. Bhargava whose slip was wrongly included in the initial draw for the said category. Thus, lots were redrawn, which was quite fair, proper and justified in the facts and circumstances of the present case. All the above action was taken in open and to the knowledge of every person who was present there. At that time when re-draw was made no body including the petitioners or other candidates, raised any objection. According to the respondents the redraw of the lots was made not to favour any person but on account of glaring and basic mistake committeed by not including two eligible candidates in the draw and by wrong inclusion of one slip of eligible candidate. The petitioners and all other applicants had full opportunity or occasion to raise objections at that time, if they had any giievance against the procedure adopted by the Property Allotment Committee or in case the decision taken by them was not factually correct. If such objection or objections had been raised then and there by the petitioner or any other person, it would have been decided then and there like the objection made by Shri S.K. Mehta. The decision of all such objections cannot be postponed otherwise no draw could be humanly possible. A proceedings of the re-draw was also prepared and a true copy of the same has been submitted and marked as Annexure Rule 7.

4. It has been further averred by the respondent Board that after the aforesaid defects in the manner of draw having come to the notice of the authorities concerned and the Members of the Property Allotment Committee, a slight change in the procedure was adopted in the subsequent draws. This slight change was to the effect that even before the commencement of the lots, names of all eligible applicants were read over from the slips and were put in the rotating drum for the purposes of draw. After taking out the slips one by one to the requisite number, the names of the unsuccessful candidates were again read out from the slips which remained in the rotating drum. This double check was introduced to avoid any further mistake due to inadvertance. It has further been averred that the petitioner has not given the correct facts in the writ petition. She has concealed the material facts as to how and why the lots were again drawn and tried to avoid her responsibility by saying that she had gone to her house just after her name was announced after her slip was taken out of the rotating drum by the respondents. The petitioner has also made misrepresentation of the facts by making averments in the writ petition to mislead this Hon'ble Court to believe that at the time of first draw the slips of all eligible candidates were included in the rotating drum and that none of the eligible candidates were left out. She has also made a misrepresentation of fact that the names of all eligible candidates were announced before the beginning of the draw and none raised any objection at that time. Similarly she has made wild and false allegations of favouritism and illegal gratification without laying any foundation, whatsoever.

5. The respondent Board has also filed affidavits of Shri Ram Kumar Singh, R.A.S., Secretary Rajasthan Housing Board and a Member Secretary of the Property Allotment Committee, Shri N.M. Kothari, Member of the Property Allotment Committee, retired Director of College Education, Rajasthan, Shri A.R. Mathur, Housing Commissioner and Member of the Property Allotment Committee, in support of the facts and decision taken by the Board for cancelling the first draw of the lot and to draw lot a second time.

6. So far as the allegations made by the petitioners regarding the action of the Board being actuated by malice or having accepted illegal gratification, same are totally baseless and have no foundation whatsoever. The drawing of the lottery was held in the presence of more that a thousand persons and the Members of the Property Allotment Committee of the Board as alleged by the respondent Board in its reply. Shri R.K. Shastri, Chairman (Secretary to Government, Urban Housing Development Rajasthan, Jaipur) Shri A.R. Mathur, Housing Commissioner, Shri I.D. Bhargava, Member (Retired Chief Engineer, P.H.E.D., Rajasthan, Jaipur) Shri N.M. Kothari, Member (Retired Director of College Education Rajasthan, Jaipur), Shri Ram Kumar Singh, R.A.S., Secretary, Rajasthan Housing Board, Jaipur and the Chairman of the Rajasthan Housing Board himself were pre sent at the time of drawing of the lottery. I believe the averments made by the Board in its reply in this regard that such top functionaries of the Board were present at the time the draw was held and it was beyond expectation that in presence of the senior officials any wrong could have been done to cause favour to some persons by any staff member to the Board. It is no doubt true that the mistake committed by any officer or employee of the Housing Board of not putting the slips of all eligible candidates in the rotating drum and putting one slip of an ineligible person was a serious one but no malice or under-hand tactic can be attributed to the Members of the Allotment Committee who were present on the spot and had to take some action when such illegality came to their notice. As already pointed out above three Members of the Allotment Committee namely. Shri Ram Kumar Singh, Shri N.M. Kothari and Shri A.R. Mathur have also given their affidavits and there is no reason to disbelieve the fact stated in these affidavits. I am thus, not prepared to accept the contention of the petitioner that the action taken by the Allotment Committee of drawing a lot for the second time should be set-aside on the ground of mala-fide action.

7. The next question that calls for determination is whether the action taken by the Allotment Committee is how far justified and whether such action can be called in question in exercise of extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.

8. First, I shall deal with the provisions of the Regulations having any bearing in the contingencies which arose in the present case. Learned Counsel for both the parties frankly conceded that there is no direct provision in the Regulation to meet a situation which arose in the present case. I take the facts as stated by the Board in its reply to be correct and which are also supported by a copy of the proceedings of re-draw Annexure Rule 7 filed by the Board along with the reply. 110 flats of the size of 140.18 sq. metres were ear-marked for allotment to applicants belonging to higher income group of various categories. First of all the names of 42 persons were announced as they, as per their reservation quota, got the allotment without any draw. Thereafter the draw for selection of 31 applicants out of 95 applicants of salaried group (outright sale) as per their quota was taken up. 95 slips of salaried persons (outright sale) were put in the rotating drum after making the announcement that out of 95 slips being put 31 persons are to be declared successful. The slips were drawn one by one by a public man and the names were announced on mike. Thereafter, the names of remaining 64 slips were read out on mike. After the names of all the 95 slips were read out, one Shri S.K. Mehta made an oral objection that while his name appears in the list of eligible applicants, his name has not been read out in all 95 slips. The Property Allotment Committee, therefore, suspended the draw and directed the Housing Officer for the rechecking of slips. As a result of rechecking of slips with reference to the lists of eligible applicants it was discovered that while the slips of Sarva Shri Bhagwana Ram and Shri S.K. Mehta were not prepared, one wrong slip of Shri V.S. Bhargava who had opted for a size of 239.03 sq. metre flat was wrongly prepared. The Property Allotment Committee therefore, directed the Housing Officer for redraw of 31 persons out of 96 slips, which was followed after the apology tendered by the Housing Officer and the decision for redraw was announced by the Chairman himself on the mike. Regulation 28 lays down that the allotment of property to eligible applicants shall be made by draw of lots under supervision of the Committee. Where the number of eligible applicants exceeds the number of houses/flats, lot shall be drawn to the extent of number of house/flats available plus 50 percent thereof in addition to serve as a waiting list. According to the reply submitted by the Board the above regulation has been amended by the Rajasthan Housing Board in its 87th meeting held on 22nd and 23rd of September, 1980. In view of the aforesaid amendment the Members of the Property Allotment Committee did not think it necessary to make draw for the waiting list and hence no draw for the waiting list was made out in the complete draw of any category of houses/ flats for Jaipur City. Annexure Rule 6 a copy of the resolution No. 87.32 has been filed along with the reply. By this resolution clause 28 of the Regulation has been amended leaving the discretion with the Property Allotment to either dispense with the waiting list or to keep not more than 5 persons on the waiting list, who could be allotted to cancelled tenements in their order of seniority. This list, however, would lapse after the announcement of the next draw for that town, in which houses of that particular income group are also proposed to be included. The petitioner has also not challenged the action of the Board on account of any violation of Regulation 28 in not preparing a waiting list. Under Regulation 30 the names and other particulars of the allottees has to be entered in an allotment register. Under Regulation 31- intimation about the allotment has to be sent to all persons selected for allotment whose names have been entered in the allotment register. Regulation 34 gives full powers to the Property Allotment Committee to decide representations, if any, in regard to the selection of applicants for allotment of property. According to the learned Counsel for the Board, the Committee had full powers under Regulation 34 to take an action of the present kind to cancel the first lottery and take recourse of drawing the second lottery. According to the learned Counsel for the petitioners the above regulation only empowers the Committee to decide representations, if any in regard to selection of applicants for allotment of property. This Regulation does not empower the Committee to deal with oral representations and in any case such representations of applicants can be for allotment to property the entire drawing of lot cannot be cancelled under the above Regulation. It is further contended by the learned Counsel for the petitioners that under Clause (iii) of Regulation 23 the Committee determines about the eligibility of the applicants for allotment and the decision of the Committee in this regard is taken to be final. Under this provision the petitioners were already determined to be eligible for allotment and there was no question of deciding this question again.

9. Under Clause (iii) of Regulation 23- the Committee determines about the eligibility of an individual applicant of allotment. It is only such applicants who are declared to be eligible for allotment under this provision can take part in the draw of lots. There is no controversy in this case that the petitioners were eligible for allotment. Under Regulation 34 in my view it is not necessary that representations should be only in writing as contended by the learned Counsel for the petitioners and the same can be oral also. The Regulation does not expressly mention that the representations should be only in writing and in my view can be both oral as well as in writing. Regulation 34 however deals with representations regarding selection of applicants for allotment of property. Under this regulation representations can be made in regard to selection of one applicant or more than one, for example, on the ground that such applicant or applicants might not have been declared as eligible for allotment under Clause (iii) of Regulation 23 or the applications submitted for allotment might not have been entered in the application reisgter. Naturally in such cases if representations are made, the Committee shall have full power to decide with regard to selection of such applicants for allotment of property. There may be many more other kind of cases as I have given example as an illustration only. In my view the objections raised by Mr. S.K. Mehta that though he was an eligible candidate but as his slip was not put in the rotating drum and thus he was not given a chance at all to participate in the draw of lots and on that ground the whole drawing of lot should be cancelled, does not fall within the scope and purview of the representations permitted under Regulation 34. Thus I am not prepared to accept the contention of the learned Counsel for the Board that such action could have been taken by the Committee under Regulation 34.

10. Now the question further remains to be considered is that if there is no specific provision in the Act or Regulation to deal with contingencies like the present one, then what action could have been taken by the Property Allotment Committee and whether the action taken in the present case can be justified or not. The contention of the learned Counsel for the petitioners in this regard is that as soon as the slips were taken out one by one from the rotating drum and the names were announced, such persons became entitled for the allotment and a completed legal right vested in them and thereafter the same could not be cancelled by the Committee. The lottery itself is based on element of chance and once a person gets a right by chance he cannot be deprived of the same even though there might he any irregularity in the procedure adopted for drawing of lottery. It is further argued that in any case the Committee took the action of cancelling first lot and to draw a second lot, in an arbitrary manner without giving any chance of representation to the successful candidates in the first draw and violated the principles of natural justice. It is further argued that in case an opportunity would have been given, the petitioner could have shown the various other modes or ways of amending the mistake committed in drawing of the first lot. In this regard some of the ways suggested during the course of arguments were that instead of cancelling the first lot the Housing Board should have allotted two plots to Shri S.K. Mehta and Shri Bhagwana Ram whose slips were not put in the rotating drum even though they were eligible. In other words 31 successful candidates in the first draw should not have been disturbed and the Board in order to redress its own mistake should have constructed and allotted two plots to Shri S.K. Mehta and Shri Bhagwana Ram. The other ways suggested was that without cancelling the first lottery the slips of Shri S.K. Mehta and Shri Bhagwana Ram could have been mixed along with all eligible candidates and the lots could have been drawn for 31 times again out of the rotating drum and in case Shri S.K. Mehta and Shri Bhagwana Ram could have became successful, then their case could have been considered by the Board, otherwise their objection could have been rejected. Learned Counsel for the petitioners in this regard have pointed out that under Regulation 8 the Board has power to provide for reservation of houses in any area for allotment to any specified class or classes of persons. On the other hand learned Counsel for the Board contended that the Board has no power under Regulation 8 to make an allotment of two houses in favour of Shri S.K. Mehta and Shri Bhagwana Ram as suggested by learned Counsel for the petitioners. The question of opportunity of representation in writing and giving individual notice to each one of the successful candidates of the first lot does not arise any in as much as the action was taken openly in the presence of all general public and in such cases where the drawing of the first lot was basically wrong as the right of participation to eligible candidates was disallowed, the decision was required to be taken by the Allotment Committee on the spot. It took decision to cancel the first lot and to draw the lots again by including all the eligible candidates which was quite reasonable and proper in the facts and circumstances of the case. It is further argued that no right accrued to the petitioners till the process of allotment was completed, which could have been completed only when the intimation of allotment was sent to all persons selected for allotment as contained in Regulation 31. It is also submitted that when a decision to cancel the first lot was announced and drawing of second lot began, neither the petitioners nor any one of the other eligible candidates made any objection. The petitioners cannot raise a grievance now if they did not come out successful in the second lottery. Mr. Singhi, learned Counsel for the petitioner, Capt. Fateh Bahadur in Writ Petition No. 1854/ 80, in this regard argued that neither in the affidavits of the Members of the Commissioner in the record of the proceedings Ex. Rule 7 it has been mentioned that any opportunity for submitting objections was given to the successful candidates of the first lot or before taken the action of cancelling the first draw. It is not believable that none of 31 persons who were declared successful might not have raised any objection to such decision. Mr. Tibrewal, learned Counsel for the Board on the other hand submitted that it cannot be believed that all 31 successful candidates in the first lot might have gone to their houses to rejoice success in the first lottery and the fact is that they remained present on the spot till the completion of the total proceedings of the first lottery i.e., at the time when the Housing Officer announced the name of 64 applicants remaing unsuccessful and when the decision was taken by the Allotment Committee for cancelling the first lot. It was for the petitioners to have given affidavits of any of the 31 successful candidates to show that they raised any objection in this regard and the same was not considered by the Committee. The petitioners could have shown this by filing a rejoinder and in the absence of such averments in the writ petitions or any affidavit, the facts as stated by the Board in reply that none of the eligible applicants raised any grievance, should be taken to be correct. Mr. S.B. Mathur and Mr. P.C. Jain appearing for the interveners have justified the action taken by the Housing Board and have supported the arguments made by the learned Counsel for the Board. Mr. S.N. Bhargava appearing for certain interveners has supported the arguments made by the learned Counsel for the petitioners. Mr. Bafna, learned Counsel for the petitioner placed reliance on Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. : (1979)IILLJ217SC , in which it was observed:

The Government, is not and should not be as free as an individual in selecting the recipients for its largess. Whatever its activity the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.

11. In the matter of allotment of plots by drawing of lots the most important right is the right of participation in the lottery by all the eligible applicants. Thereafter it becomes a matter of chance as to in whose favour the lot may be drawn. In the instant case Shri S.K. Mehta and Shri Bhagwana Ram were denied the right of participation in the first lottery, though both were eligible applicants to participate in the lottery. In my view the proceedings of the drawing of lots in the first instance was not completed when the action of cancelling the first lottery and to hold the drawing of lots a second time was taken by the Property Allotment Committee. After the names of 31 successful candidates were announced in the first draw, the names of the remaining unsuccessful applicants were being announced in the same process and the mistake that the slips of Shri Bhagwana Ram and Shri S.K. Mehta were not at all put in the rotating drum and slip of one ineligible candidate was put was detected in the same proceedings by the Members of the Property Allotment Committee who were present oh the spot. The Committee then took a decision immediately to cancel first lottery and to hold the same a second time. I am not prepared to accept the contention of Mr. Bafana, learned Counsel for the petitioner that for each individual applicant the process had completed as soon as a lot was drawn in favour of such applicant.

12. In my view the process of drawing lots in the first instance had commenced by putting the slips in the rotating drum and it was continuing when the mistake was detected and it cannot be held that the petitioners had acquired a legal right as soon as a lot was drawn in their favour because the mistake was detected before the proceedings for the first lottery were over and simultaneously in the same process decision to cancel first lottery and to draw lots second time was taken. Further point to be determined is whether in the facts and circumstances of this case the action taken by the Property Allotment Committee was arbitrary or malafide or such action violated any fundamental or legal right of the petitioners. I have already held above that there is no ground or justification for holding that such action was mala-fide. There is no direct provision in the Act or the Regulation laying down a procedure to be adopted in the situation like one, which arose in the present case. The lottery is a scheme or procedure for distributing something among a group of people by lot or chance and the fundamental rule of lottery is to allow chance of participation to every eligible person. Now if all the eligible applicants were not allowed to participate in it, in that case if a decision was taken to cancel such lottery and to start it again cannot be said to be arbitrary or unreasonable. It cannot be denied as suggested by the learned Counsel for the petitioner that some other decision could have also been taken in such circumstances but that cannot give a legal right to the petitioners to seek any mandamus from this Court against the respondents, in case the action taken by them is found to be reasonable and not arbitrary. It is that the petitioners were also given a chance to participate in the drawing of lots second time and it was a matter of chance that they could not succeed a second time. There are some of the interveners who became successful in the drawing of lots both the time and the element of chance is always inherent in a matter of allotment which is done by drawing of lots. The petitioners did not acquire any legal right much less any fundamental right to compel the respondents to make an allotment of the houses merely because they had become successful in the drawing of lot in the first instance, even though the entire drawing of lots were cancelled by the Property Allotment Committee. It cannot also be held that the respondents were bound by promissory estoppel or equitable estoppel to allot the plots to those applicants only who had become successful in the drawing of lots in the first instance. I find force in the contention of the learned Counsel for the Board, that it acted in a fair and reasonable manner and it had no interest at all with the applicants who became successful in the first drawing of lots or the second drawing of lots. Though it is not believable as contended by the learned Counsel for the petitioners that all the 31 applicants who were successful in the drawing of lots in the first instance, had gone to their houses to disclose this news and as such were not present when the action of cancelling the first lottery and to hold the drawing of lots a second time, but even if it may be believed for argument's sake, such action is of no consequence till it is held that the petitioners had acquired a legal right in the houses allotted to them. A perusal of Regulation 30 shows that the names and other particulars of the allottees is entered in an allotment register and under Regulation 31 intimation about the allotment is to be sent to all persons selected for allotment whose names have been entered in the allotment register. Admittedly neither the names of the petitioners were entered in the allotment register, nor any intimation about the allotment was sent to them. Under Regulation 37 when the properties are disposed of by way of sale, the possession of the property is to be handed over to the allottee, after such allottee, had made the required payments & Regulation 42 clearly lays down that when the property is disposed of by way of sale, the allottee shall become the owner only after the full disposal price and all other dues have been paid to the Board and the transfer of the property has been effected through a conveyance deed executed in such form as may be prescribed by the Board. Learned Counsel for the petitioners contended that the petitioners were prepared to pay the full disposal price and all other dues to the Board and as no breach was made on their part, as such the allotment could not have been cancelled. There is a falicy in the above argument in as much as it is not a case of cancellation of allotment of the petitioners on account of any charge of mis-deed or breach of contract or non performance from their side. It is a case where the entire action of drawing of lots in the first instance has been cancelled to draw the lot a second time.

13. Ramana Daya Ram Shetty's case (supra) relied upon by the learned Counsel for the petitioner is of no help to the petitioners in the facts and circumstances of this case. It is undisputed that a democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal, and the Government, is not and should not be as free as an individual in selecting recipients for its largess. In the instant case neither the action of the respondents can be said to be arbitrary and capricious nor selecting individual as recipients for its largess.

14. I am also not prepared to accept the contention of the learned Counsel for the petitioners that they ought to have been given an opportunity of the filing objections and in the absence of such opportunity there is any violation of principles of natural justice. This argument is not tenable both in the facts found proved in this case as well as under the law. I see no reason to disbelieve the contention of the respondents that the persons successful in the drawing of lots in the first instance were present at the time when the mistake was detected and a decison to draw that lot a second time was taken and no objection was raised by any one the petitioners against such action. The reason may be that they had no objection to raise in view of the reasonablenees and fairness of the decision or in view of the fact that they had still a chance to become successful in the drawing of lots a second time. (The petitioners have not been deprived to take part in the drawing of lots a second time and as the petitioners had not acquired a completed right of allotment of plot in their favour as the process of drawing of lots had not become over. There does not arise any question of violation of any principle of natural justice. I am not prepared to accept that in the facts and circumstances of this case a written notice inviting objections was necessary to have been given to the petitioners before cancelling the drawing of lots made in the first instance. Learned Counsel for the Board also placed reliance on Paradise Printers, Chandigarh and Ors. v. The Union Territory Chandigarh and Ors. wherein it has been held that where lots are drawn for allotment of industrial plots, but no letters are issued, the mere draw of lots does not create any right as it is not done under any statutory provision, when the balance of price (initial deposit taken before drawing the lot) also has not been taken, it shows the matter to be still in consideration stage. The petitioners successful in the draw cannot hence claim a binding contract entitling them to transfer of the plots. The learned Counsel for the petitioners distinguished the above authority on the ground that in the above case the drawing of lots was not done under any statutory provision while in the present case the drawing of lots was done under the Disposal of Property Regulation, 1978, which have a statutory force and are binding on the Board.

15. In my view the aforesaid Regulations are binding on the Board but as already held by me there is no provision in such Regulations which renders any assistance to the petitioners.

16. Thus I find no force in the writ petitions No.s 1638/80 1676/80 and 1854/80 and the same are dismissed.

17. Civil writ Petition No. 990/81 has been filed by Rameshwar Prasad Gupta who became successful in the drawing of lot a second time. He has filed this writ petition seeking a direction against the Chairman, Rajasthan Housing Board and the Housing Commissioner, Rajasthan Housing Board, Jaipur to enforce its decision of drawing of lots a second time and to issue a letter of allotment in favour of the petitioner and also to deliver possession of the flat. He has further sought a direction to upold the second draw of lottery which took place at Gandhi Nagar Club on 27th October, 1980 after finalisation of the objection raised during the process of draw of lottery. During the course of arguments learned Counsel for the Board clearly stated that; there was no question of seeking any relief by the petitioner in this writ petition as the Board itself accepted the stand alleged by the petitioner in this writ petition. The Board never refused to make an allotment in favour of the petitioner, but it had been put in a dilemma to take further action in view of the other writ petitions filed by the successful applicants in the drawing of first lot. Learned Counsel for the petitioner in this case was satisfied in view of the above statement given by the learned Counsel for the Board and did not press for any direction to be given against the Board. In view of my decision given in the other 3 writ petitions I also feel that no direction is now necessary to be given to the Board in this case and this writ petition is also disposed of as having not pressed.

18. In the result the parties are left to bear their own costs.


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