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 immovable 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 expenditure and undertakes work in any area in force under the Act for the framing and execution of such housing scheme as it may consider necessary. Under Sec. 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 as laid down under Chapter III of the Regulation-procedure for disposal of property, 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 certificate to the petitioners. The Board then invited applications from he applicants registered under the schemes for participation lottery No. 2 for allotment of house 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 newspaper that under lottery No. 2 of the housing scheme for the year 1980-81 the list of eligible candidates 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 out right sale ( salaried group ) for the flats of the size of 140. 18 sq. metres was 93. Out of 93 participants, one Smt. Usha Upadhyay did not participate in asmuchas she herself with - drew her application subsequently and another Shri P. S. R. Androw Ex-service man) was transferred to reserved category of Ex-service man. 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 the participation in the aforesaid category namely. Sarva , Shri Rajesh Paul, Dr. S. K. Soloman, 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 applicant's. In case of Jaipur City the date for draw of lottery No. 2 was declared as 27th October, 1980 at 11. 00 A. M. but the venue was sot 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 can-didates 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 27tb October, 1980 at Gandhi Nagar Club, many housing schemes were under allotment such as Nahari-ka-naka, Lal Kothi Scheme and Jawahar Nagar Scheme for 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 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 elidible 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, term 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 fiats 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 that sure 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 allotted 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 started and all the 31 bouses of above noted scheme were allotted to various successful persons including the petitioner, and almost all of them went to their house. The action of re-draw of lot was taken in the absence of eligible and successful candidates. The petitioner came to know only after-words at 4. 00 P. M. when re-draw 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 enquiries he came to know that no chit of any eligible candidate was left and all the chits of eligible candidates were nut 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 miss-ing of chit. But unfortunately no enquiry was made in a hotch-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 mischief 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, 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 bad 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. Metha 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 239 035 sq. metres. When the 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 Shri 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 redraw was made no body including the petitioner or other candidates, raised any objection. According to the respondents the re-draw of the lots was made not to favour any person but on account of glaring and basic mistake committed by not including two eligible candidates in the draw and by wrong inclusion of one slip of ineligible candidate. The petitioners and all other applicants had full opportunity or occasion to raise objections at that time, if they had any grievance 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 post-poned otherwise no draw could be humanly possible. A proceeding of there-draw was also prepared and a true copy of the same has been submitted and marked as Annexure R/7. 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 during 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 inadvertence. It has further been averred that the petitioner has not given 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 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 relating 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. The respondent-Board has also filed affidavits of Shri Ram Kumar Singh, R. AS. , 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. 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 than 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 Govern-munt. Urban Housing Developemnt Rajasthan. Jaipur) Shri A. R. Mathur, Housing Commissioner, Shri I. D. Bhargava, Member (Retired Chief Engineer P. H. E. D. , Rajasthan, Jaipur) 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 present 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 of 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 facts 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.
(3.) 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. 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 not 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 or re draw Annexure R/7 filed by the Board along with the reply. 110 flats of the size of 140. 18 sq. metres were year-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 in 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 reachecking 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 VS. 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 houses/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 R/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 Committee to either dispense with the waiting list or to keep not more than 5 persons on the waiting list, who could be allotted the 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 appearing 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 petitioner 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 of property but 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 of 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. Under clause (iii) of Regulation 23- the Committee determines about the eligibility of an individual applicant for 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 docs 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 register. 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. ;