Judgment:
K.S. Rathore, J.
1. The present writ petition is filed by the petitioner seeking writ, order or direction directing the Housing Board to allot the house No. 5/310, Malaviya Nagar, Jaipur to the petitioner by accepting sum of Rs. 3,94,715.16/-, the cost mentioned in the original allotment letter dated 17.10.1992 and the petitioner be permitted to deposit the said amount with the Housing Board through bank guarantee to deliver the possession of the said house within a reasonable period.
2. Briefly stated the relevant facts of the case are that the petitioner's grand father made an application for allotment of house on hire purchase basis in EWS category and the same was registered by the Housing Board on 15.4.1974. After applying for allotment of house, the petitioner's grand father Shri Chimanlal Khanna died on 29.10.1976. On 15.6.1982, the petitioner applied in the prescribed form for substitution of her name and also applied for change of category from EWS to MIG-B. In the first list published in the year 1983, name of the petitioner was not there.
3. The petitioner was informed on 22.1.1985 regarding transfer of registration in favour of the petitioner, however, no priority number was allotted. The petitioner submitted a representation on 6.9.1986 to rectify the mistake on the part of the Board. Vide letter dated 9.6.1987, the Housing Board informed the petitioner that a house in MIG-B category has been earmarked and reserved for her and she is required to deposit two installments of Rs. 6000/- each. First installment was paid by the petitioner on 7.9.1987 and second on 1.4.1988.
4. The Housing Board published a notice on 24.5.1989 notifying that all applicants registered during the period 1973 to 1989 have been allotted houses and those who have not been allotted houses should notify it to the Board by 15.6.1989. Pursuant to that, the petitioner submitted her representation regarding non- allotment of house.
5. Vide letter dated 17.10.1992, house No. 5/310, Malaviya Nagar Scheme was allotted to the petitioner on out right sale basis and she was required to pay Rs. 3,73,829/-.
6. The petitioner submitted the representation to the Board to allot the house on hire purchase basis as applied by her grand father. Since no decision was given on the representation, the petitioner preferred a writ petition before this Court, which was registered as SBCWP No. 244/93. at Principal Seat at Jodhpur. The said writ petition was decided vide judgment dated 16.8.1995 with other similar writ petitions relating to Parijat Scheme, but the writ petition filed by the petitioner remained unanswered so far as present controversy is concerned.
7. The Housing Board issued a letter to the petitioner raising the demand of Rs. 6,97,814/- on 24.4.1997. Against which, the petitioner again preferred a writ petition, which was registered as SBCWP No. 4757/97 before this Court at Jaipur Bench. This Court vide order dated 29.8.1997 disposed of the writ petition with the direction to the respondent Board to look into the grievance of the petitioner or depute an authorised person to examine the grievance of petitioner and pass a reasoned order within a period of four weeks from the date of receipt of order. Liberty was also given to the petitioner to challenge the said order by way of a fresh writ petition. The respondent Board pursuant to the order passed by this Court in writ petition No. 4757/1997 decided the representation and communicate to the petitioner vide letter dated 6.5.1998 that no relaxation in the amount of interest can be given to the petitioner.
8. The petitioner also filed a complaint before the Consumer Disputes Redressal Commission. The Commission dismissed the complaint vide order dated 30.11.2000 on the ground that reliefs sought for by the petitioner does not fall within the purview of a consumer dispute.
9. Thereafter, the petitioner referred the dispute before the Settlement Committee. The Settlement Committee on 11.2.2003 referred the case of the petitioner to give similar treatment to the petitioner, which was given to Abdul Razzak Khan. On 20.12.2003, the respondent Board issued a letter to the petitioner requiring her to deposit Rs. 12,74,304/- and further to pay amount of Rs. 3,16,410/- deferred in 96 monthly installments with interest @ 18.5% by escalating the price of the house.
10. Learned Counsel for the petitioner in support of his submissions placed reliance on the judgment rendered by this Court in case of Jhabarmal v. Rajasthan Housing Board and Anr. reported in WLR 1998 Raj. 157 wherein this Court has held as under:--
'The petitioner was pressing for possession since on coming to know that other similarly situated persons who were below in the registration list had been handed over possession by making representations to the respondent Housing Board for the delivery of the possession. Had the possession being delivered alongwith other allottees. The petitioner would have paid the amount as applicable for the year 1992. There is no justification what-so-ever with the respondent Housing Board to charge interest or enhanced rate of the cost of the House as prevalent in the year 1995, instead of in the year 1992, when the possession was scheduled to be handed over to the petitioner. This type of injustice cannot be allowed to be perpetuated. It is the primary duty of the Housing Board to hand-over the possession if the formalities before handing-over the possession have been completed and if by any reason what-so-ever not attributable to the allottee, the possession is delayed by the Housing Board, the Housing Board can not and shall not put such allottee in loss by demanding interest of the period when the Housing Board was itself in error or ask for the enhanced price payable of the year of time when actual handing-over of the possession is made by the Housing Board to the allottee. The excess amount by way of charging interest to the tune of Rs. 1,70,826/- shall not be chargeable from the allottee, as no possession was ever offered or handed-over to the allottee during the relevant period.'
11. Learned Counsel for the respondents has controverted the submissions made on behalf of the petitioner and submits that since the petitioner's case has been considered by the settlement committee and rebate of 40% in the interest has been given to the petitioner, but the petitioner has refused to take the possession of the house in question, therefore, for its own fault, the petitioner cannot claim any relief with regard to interest part.
12. Having considered the submissions made on behalf of the parties and having considered the factual matrix of the case, it appears that the petitioner time and again constraint to file the writ petitions and applications for getting allotment of house and pressing hard to get the exemption from interest as charged by the respondents. Another grievance of the petitioner is that allotment was made on hire purchase basis and the same is changed to out right sale basis. For that the petitioner also redressed his case time and again before this Court and before the Housing Board, but the Housing Board without considering the representations issued the allotment letter dated 20.12.2003 requiring petitioner to pay Rs. 12,74,304/- and further to pay amount of Rs. 3,16,410/- with interest @ 18.5% by escalating price of the house,
13. In the case of Jhabarmal (supra), this Court has held it is the primary duty of the Housing Board to hand-over the possession if the formalities before handing-over the possession have been completed and if by any reason what-so-ever not attributable to the allottee, the possession is delayed by the Housing Board, the Housing Board cannot and shall not put such allottee in loss by demanding interest of the period when the Housing Board was itself in error or ask for the enhanced price payable of the year of time when actual handing-over of the possession is made by the Housing Board to the allottee.
14. Here in the instant case, a house was allotted to the petitioner on hire purchase basis pursuant to which the petitioner has already deposited two installment of Rs. 6000/- each on 7.9.1987 and 1.4.1988, there was no occasion to change the scheme to out right sale basis. The petitioner has specifically pleade that in case of Abdul Razzak Khan, the Housing Board has not charged a single penny against the interest and the petitioner has repeatedly requested to consider his case at par with the case of Abdul Razzak Khan, but the same has been declined. The petitioner also placed the allotment letter dated 12.5.1997 by which it is clearly evident that no amount against the interest has been charged from Abdul Razzak Khan.
15. In view of the ratio decided in case of Jhabarmal and looking to the fact that in case of Abdul Razzak, Housing Board has not charged the interest, thus, the Housing Board is directed to issue allotment letter immediately to the petitioner within a period of 15 days from the date of receipt of copy of this order. The Housing Board shall not charge the interest from the petitioner. After receipt of the allotment letter, the petitioner has to make the payment of balance amount with the respondent Board within one month. On such eventuality, the Housing Board shall hand-over the possession of the house to the petitioner.
16. With the aforesaid observation, the writ petition stands disposed of.