TIBREWAL, J. - (1.) IN this petition under Article 226 of the Constitution of INdia, the main grievance of the petitioner, who is in employment of a National Bank, is that he was arbitrarily excluded from the draw of lottery of allotment of house/flat drawn on July 26, 1991 by the respondent Board, even though, he was eligible to be included in the said lottery and the applicants, who were lower in the priority, were included in the said drawn of lots.
(2.) IN order to appreciate the real controversy, some necessary facts may be stated in brief : The respondent Board floated a general registration scheme in the year 1982 inviting applications for registration of applicants for allotment of houses/flats constructed by it in various categories in the city of Jaipur. The housing scheme was proposed to be at Sanganer, Jaipur. The petitioner got himself registered under the aforesaid scheme by depositing Rs. 10,000/- by a Bank Draft dated 24. 12. 82. After his registration at Sl. No. 55029 in H. I. G. category the petitioner was allotted priority No. 116 and was given Code No. HIG/82/hp/g/p-116. The registration was for allotment of a house/flat on hire purchase basis. Vide letter No. 3264 dated, 23. 3. 91 (Annex. 1), the petitioner was intimated by the board that one house has been reserved for him in Sanganer Housing Scheme as per his priority number and he was asked to deposit the seed money in the amount of Rs. 50,000/- in three instalments of Rs. 20,000/ -. 20,000/- and Rs. 10,000/ -. The first instalment was to be deposited within a month from the date of issuance of reservation letter dated 23. 3. 91. There is no disputed that the petitioner deposited the amount of first instalment in time by a Bank Draft. The petitioner was, therefore, eligible to be included in the lottery drawn on 26. 7. 91, but by mistake or negligence of the functionaries of the Board his name was not included in the said draw. IN the said draw the applicants upto priority No. 152 were included while the petitioner's priority No. was 116. It is not disputed before me that in case the petitioner's name had been included in the said draw, he would have been allotted a house/flat in H. I. G. category as per the result of the draw. The petitioner having come to know of his exclusion from the said draw, made a representation to the Chairman of the Board on 2. 8. 91 requesting him either to cancel the said draw or he be allotted a house in the category of H. I. G. in Sanganer Housing Scheme. As usual, the said presentation was not responded to by the respondent. A copy of the aforesaid representation has been placed on record as Annexure-4. The next two instalments of the seed money were also deposited by the petitioner in time, but, still the petitioner was not included in the subsequent draws of lottery on 18. 7. 92, 14. 10. 92, 11. 12. 92, 28. 1. 93 and 31. 3. 93. It appears that the subsequent draws were for out-right sale of the house/flats. The petitioner went on making representations from time to time and some of them have been placed on record as Annexures 10,11 and 12. IN the representation dated, 6. 7. 92 (Annex. 10) addressed to the Chairman of the Board, the petitioner again drew his attention to the injustice done to him by not including his name in the lottery drawn on 26. 7. 91, even though he was eligible and has deposited all the instalments of seed money in time. By the said letter, he requested that his name may now be included in the next lottery going to be drawn on 18. 7. 92. No action was taken on this representation also. The last representation was made by the petitioner on 19. 7. 93 and when no action was taken by the respondent, he filed this writ petition before this Court on 23. 8. 93 challenging the action of the Board to be arbitrary and discriminatory. Arguments were heard and the learned counsel for the Board was also directed to produce the relevant record for the perusal of the Court. The learned counsel for the Board has fairly produced the entire record for the perusal of this Court. On going through the record of the Housing Board it transpired that the facts narrated in the petition are correct and that the petitioner was wrongly excluded in the lottery drawn on 26. 7. 91 in which applicants of the petitioner's category upto priority No. 152 were included, while the petitioner's priority No. was 116. The mistake was noticed by the respondent Board, but still no relief was granted to the petitioner and no action was taken on his representations. Thus, the petitioner has been arbitrarily denied a house/flat of H. I. G. category by the Board for the default of its functionaries and the mistake was not rectified inspite of repeated representations. In Hanuman Prasad vs. Rajasthan Housing Board and Anr. (1), I had an occasion to examine a matter relating to the respondent Board where the petitioner was wrongly excluded from the lottery. After considering various judgments of the Apex Court of the country, in para-12 of the judgment it was observed by me as under: - "in the back-ground of the law settled by the Apex Court of the country it is now undisputed that this Court can have a judicial review on every action/activity of the Board. If the action of the Board is found to be unreasonable, arbitrary or against public interest it can be struck out by this Court in writ jurisdiction under Article 226 of the Constitution. " On the facts of the said case, it was found that the petitioner was wrongly excluded from the lottery and it was held as under: - ". . . . I can safely hold that the action of the respondent Board in the matter of allotment of house to the petitioner was arbitrary and unreasonable. The Board and its officers failed to perform their public duties to act reasonably and fairly. I, therefore, hold that the petitioner was entitled to get allotment/possession of a house as per scheme when the draw was made on 31. 3. 1992. His name was wrongly excluded by the Board in the draw held on 31. 3. 1992. He is, therefore, entitled to be put in the same position with proper compensation. " The ratio of the above judgment squarely covers the present case, The next question which arises for consideration is as to what relief be granted to the petitioner. In the draw held on 22. 12. 93, the petitioner has been allotted house No. 50/11 in Sanganer Housing Scheme vide allotment letter dated 15. 6. 94 which has been placed on record Exhibit 19 alongwith an additional affidavit of the petitioner. The petitioner was included in the draw of the aforesaid lottery as this Court while issuing notice to the respondent Board on 25. 8. 93 allowed the petitioner to give his option for out-right sale under protest without affecting the result of the present petition. This option was necessary as at the instant time, the allotment of house/flat on hire purchase system was stopped, though presently which has been again reviewed. In the allotment dated, 15. 6. 94 in pursuance to the lottery dated 22. 12. 93, the cost of the house and other expenses were determined as under: "a. Cost of House 1. Cost of land (standard area 236. 25 sq. Meters) @ Rs. 500/- per sq. meter 1,18,125. 00 2. Cost of Constructions (Including all overheads) 3,77,075. 00 4,95,200. 00 B. Other charges 1. Ancillary Service Charges @ 2% 9,904. 00 2. Lease Money (one year) @ 2. 5% on A (l) & (2) 2,953. 00 Grand Total 5,08,057. 00 After deducting the registration amount and seed money deposited by the petitioner and interest thereon, totalling Rs. 93,637/-, the petitioner has been asked to pay a sum of Rs. 4,14,420/- within three months. The grievance of the petitioner is that in case he had been allotted house in the lottery drawn on 28. 8. 91, he would have been required to pay much less price. The petitioner has filed allotment letter issued in favour of Shri V. P. Agrawal, dated 3. 12. 91 (Annex. 16) whereby he has been allotted house of 32/37 of HIG category having the same land and construction area as that of the petitioner. In the said allotment letter the Cost of the house has been calculated as under: - A. Cost of House 1. Plot Cost (Area 236. 25) 85,320. 00 2. Construction Cost 1,69,480. 00 3. Extra Charges for DC/sdc House - 4. GRS Amt. and seed money Adj. in cost. 60,000. 00 5 Balance cost of House (Al + A2 + A3-A4) 1,94,800. 00 B. Other payable charges 1. ASC charges 6,244. 00 2. Lease Charges (for 1 year) 2,559. 60 3. Hire Purchase Charges (for one year) 2,740. 00 4. Hire Insurance Charges (for 1 year) 119. 00 5. Miscellaneous expenses (1 month intt.) 3,000. 00 6 Interest accursed on GRS & Seed Money 11,866. 66 7 Total (B1 + B2 + B3 + B4 + B5-B6) 12,795. 94 A bare comparison of prices of the two houses would show that there is vast difference in the price which the respondent Board wants to realise from the petitioner. In Hanuman Prasad's case (supra), in similar situation it was held by me that the allottee cannot be charged increased cost for the fault/lapses on the part of the officers of the Board. While allowing the writ petition, a direction was given to allot a house at the same cost which was charged from the other allottees of the earlier draw. Applying the same principle, the respondent Board may be directed in the present case also to issue a fresh allotment letter for house No. 50/11 which has been allotted to the petitioner vide allotment letter dated 15. 6. 94, charging the costs of land and construction as per the allottees of a similar house on the basis of lottery drawn on July 26,1991, but in any case, he should not be charged more price than the price of house allotted to Shri V. P. Agrawal vide allotment letter dated, 3. 12. 91 (Annex. 16 ). The petitioner shall be issued fresh allotment letter under hire purchase system and the amount deposited by the petitioner and the interest accrued thereon, shall be deducted while calculating the total amount to be paid in instalments. This exercise should be concluded the within two months from the date of furnishing a certified copy of this order by the petitioner. The respondent Board is also restrained from cancelling the allotment of Mouse No. 50/11 in view of the changed circumstances narrated above. Consequently, the writ petition is allowed with costs as indicated above. The costs of the petition are quantified as Rs. 2000/ -. . ;