MISRA, J. - (1.) THIS special appeal has been preferred against the judgment and order of the learned Single Judge delivered in SBCWP No. 1606/992 on 14. 11. 1994 by which the writ petition filed by the petitioner-appellant challenging the allotment of a flat on second floor and not on the ground floor which he had booked, was rejected and the order charging penal interest of Rs, 22,500/- was also upheld.
(2.) IN order to appreciate the controversy involved herein, it is essential to relate the substantial facts of the case which are to the effect that the petitioner-appellant filed an application in the Rajasthan Housing Board for allotment of a flat in the reserved category of scheduled caste for which 14% reservation was made in the year 1979. IN the year 1982 under the Self Financing Scheme, the petitioner-appellant had opted for allotment of a ground floor flat in Jawahat Nagar Scheme at Jaipur, but the petitioner-appellant's name was not included in the lottery which was held on 7. 3. 1983. The petitioner-appellant protested against the same and he was informed on 27. 09. 1986 that he would be entitled to the allotment of a flat on the first floor as there were no flats available on the ground floor. The petitioner-appellant herein, therefore, filed a writ petition which was heard by the learned Single Judge as already stated hereinabefore. The petitioner-appellant was registered under the General Registration Scheme of 1979-80 in the Higher INcome Group and he had also deposited the initial amount on 1. 8. 1990. The petitioner-appellant had opted for self Financing Scheme, but it appears that he was not allotted a flat on the ground floor as he had failed to deposit the installments against the demand which had been raised for such allotment from time to time. However, the respondent-Housing Board instead of cancelling the allotment of the appellant for ground floor house, although the appellant had failed to deposit the amount within time, was considerate in taking a decision as it was ordered that he may be allotted a flat on the second floor for which payment were to be made by him. The appellant felt aggrieved and annoyed with the decision of the Housing Board which offered to allot a flat to him on the second floor but in the process the appellant ignored the fact that he had lost his entire right to get an allotment either on the ground floor or the second floor as he had not deposited the required amount for such allotment and yet the Housing Board gave him the detailed account regarding the outstanding amount which was payable by him to the Housing Board for allotment of a flat which was Rs. 57,045/- after deducting the amount which he had already deposited. It is stated that the appellant was still interested in getting a flat on the ground floor but since he was not entitled for allotment of a flat on the ground floor, he agreed to accept a flat on the second floor and therefore, he deposited an amount of Rs. 57,045/- under protest vide letter dated 3. 3. 1989 after which possession was also taken by him on 7. 10. 1989. The appellant-petitioner thereafter, enjoyed the occupation of the house, but on one fine morning, after three years, it occurred to him that the allotment, which has been made to him by the Rajasthan Housing Board, was unfair and the price, which was charged from him was improper and illegal and that even if he was allotted a flat on the second floor which was not acceptable to him, it should have been allotted at the rate which was prevalent when the first batch of allottees of second floor were allotted a house/flat on the second floor. To clarify this position, it may be reiterated that the appellant's grievance in the first place was that he should not have been allotted a flat on the second floor because he had booked a flat for the ground floor and secondly even if he was allotted a flat on the first floor, the price which was charged from him on the date of allotment, should not have been at the enhanced rate but it should have been at the rate which was prevalent when the first set of allottees were allotted a house/flat on the second floor. Finally, his grievance is that the penal interest of Rs. 22,500/-, which has been charged towards penal interest, should not have been charged from him for if the allotment and possession was given to the appellant- petitioner at the rate which was prevailing on the date, then there could have been no reason to charge penal interest. The counsel for the respondent-Housing Board in spite of several opportunities granted to him has failed to appear, but the reply filed by the Housing Board is on record, which we have perused.
(3.) IT has been stated therein that the appellant had lost his entitled to get an allotment of a house/flat on any of the floors, since he had failed to deposit the amount which was outstanding against him hence had forfeited his right to get the allotment, yet the Housing Board taking into consideration that he belonged to a reserved category, made some concession in his favour and decided to grant an allotment on the second floor which he duly accepted at the rate prevalent on the date and this decision was acceptable to the appellant that he was duly liable to make the payment at the rate which was then prevalent. In so far as the penal interest of Rs. 22,500/- is concerned, the same was also payable because the initial payments, which had been made by the appellant at the relevant time prior to the year 1985, were also delayed payments and therefore, the appellant was legally bound to pay interest on the amount which had been deposited by him beyond the time which was fixed for depositing those amounts. Having considered over the contentions of the counsel for the appellant in the light of the reply which has been submitted by the Housing Board, we have noticed and found substance in the submission of the Housing Board that if in fact the Housing Board had taken a technical view of the whole matter, the appellant's allotment for the house/flat was liable to be cancelled for want of deposit of the entire amount within the time-schedule, yet an opportunity ignoring the rules was granted to the appellant to avail the benefit of allotment by granting him a second chance, at the rate which was then prevalent. It is difficult to find fault with this approach of the Housing Board for if the petitioner in the first place failed to deposit the amount within time and yet was granted an opportunity to avail of the allotment of a house/flat, then he had to avail the allotment at the rate which was then prevalent because it would be difficult for us to direct the Housing Board to make allotment in his favour at the old rate when he was not even entitled to get the same as per rules on account of delayed payment. We, however, felt impressed to some extent as to whether the penal interest could be charged from the appellant by the Housing Board when he sought the allotment on the prevailing rate which was fixed by the Housing Board and for this purpose we perused the reply filed by the Housing Board from which we could gather that the penal interest of Rs. 22,500/- was charged from the appellant-petitioner for the amount which was deposited by the appellant-petitioner prior to 1985 and the same was delayed not only on one occasion, but on several occasions and, therefore, the interest was computed on the amount of delayed payment. The appellant, however, still felt aggrieved and sought to impress upon the Court that the calculation of amount in this regard was also not correct. If the appellant in fact was so seriously concerned about the calculation in its meticulous detail, he, in all fairness, should have approached the civil court by filing a suit for consideration of all these questions of fact including computation of the amount towards interest. But, he appears to have shut his eyes to his default with which he was confronted as he is not at all conscious of the fact that the Housing Board, in the first place, could have sought to cancel the allotment itself for the delayed payment; yet if a solution was chalked out by the Housing Board, in substance, the same cannot be held to be unfair for if a flat has been allotted to him on the second floor at the rate which was then existing after levying penalty of Rs. 22,500/- for the delayed payment, which has already been made by the appellant in the past, his grievance that the action of the Housing Board is illegal and the amount towards penalty be refunded to him, has no justification in our view. ;