-1- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR J U D G M E N T S.B. Civil Second Appeal No.67 of 2009. Rajasthan Housing Board, Kota VERSUS Ram Dayal Meghwal son of Shri Ram Chandra Date of Judgment :::: 13th April 2010 Hon'ble Mr. Justice Dalip Singh Mr. S.N. Kumawat, for the defendant-appellant-Board Mr. Arvind Gupta, Counsel for the plaintiff-respondent *** By the Court : This second appeal, under Section 100 of the Code of Civil Procedure, 1908, has been filed by the appellant- Rajasthan Housing Board against whom the suit instituted by the plaintiff-respondent was decreed by the learned trial Court with the direction to allow the name of the appellant to be included in the successful candidates for allotment of house in Kota in the category of SC/ST for which ten houses had been set apart The submission of the learned counsel is that the aforesaid decree was challenged by the present defendant- appellant before the learned Lower Appellate Court and the learned Lower Appellate Court by the impugned judgment -2- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal dated 22nd May, 2008 has upheld the findings of the learned trial Court and dismissed the appeal filed by the present defendant-appellant. The case of the plaintiff was that he had applied for the allotment of a house at Baran with the Rajasthan Housing Board in the year 1992 and had made the initial deposit, thereafter the Housing Board admittedly decided to discontinue the Scheme for constructions and allotment of house at Baran. Realizing the aforesaid position, the plaintiff applied for change of City as well as for change of category and applied for allotment of the house in the Parijat Scheme at Kota. The plaintiffs' application was processed on 05.10.2002. The Housing Commissioner approved the proposal and wrote his comments as follows : “Approved for (A) transfer of registration from Baran to Kota, and (b) change of category from MIG (B) to HIG. Now his priority at Kota City will be in HIG category.” Based upon the aforesaid, the plaintiff deposited the initial amounts, as required vide challan on 05.10.2002 and the receipt for the same was given to the plaintiff on 16.10.2002. However, despite the aforesaid, the name of the appellant was not included in the draw for successful -3- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal candidates for allotment in the SC/ST category for which ten houses had been set apart leading the plaintiff- respondent to file the present suit. The defendant contested the suit and the main plank of the submission was that a mere noting by the Commissioner of according approval did not give any right to the plaintiff till such time, as the consequential order in that behalf was not issued. The two learned Courts below have not accepted the aforesaid plea of the defendant-appellant and the decree passed by the learned trial Court was affirmed by the learned Lower Appellate Court. In this appeal, the submission of the learned counsel for the appellant is much the same, as was submitted before the two learned Courts below that a mere approval given by the Commissioner for transfer of registration of the petitioners application from Baran to Kota and for change of category in the noting on the file did not amount to an order of the Board and, therefore, it gives no right to the appellant in that behalf. I have considered the aforesaid submissions of the learned counsel for the parties and perused the judgment of the two learned Courts below and the record. While it may be correct that there is a mere noting of the Commissioner according approval in favour of -4- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal the plaintiff, it is not denied that after the aforesaid approval was accorded by the Commissioner on the application of the plaintiff on 05.10.2002 no consequential order was issued in his favour, but as a consequence thereof the appellant acted on the said note and deposited the money on 05.10.2002 based upon the approval given by the Commissioner. It is also not in dispute that the aforesaid approval granted by the Commissioner was not reversed by the Commissioner or any higher authority. That all defendant's own witness has stated and which is recorded by the learned trial Court in the judgment is that after the approval is accorded it takes some time for issuance of the formal orders. In this behalf, the findings of the learned trial Court with reference to the statement of DW-1 Shri N.R. Meena is as follows : ''उÈ त आदेश Ǒदनांक 5/10/02 का था। इसके उपराÛ त Ǒदनांक 26/3/03 तक कोई आदेश जारȣ नहȣं होने के कारण वादȣ Ʈारा वाद पऽ ूः तुत Ǒकया गया है। उÈ त लà बी अविध तक कोई आदेश जारȣ नहȣं करने बाबत गवाह डȣ.ड.1 Ʈारा अपनी ूितपरȣ¢ा मɅ यह जाǑहर Ǒकया है Ǒक औपचाǐरकता मɅ समय लगता है ऐसी ǔः थित मɅ ूितवादȣ कȧ साआ य मɅ दो ूकार के तØ य सामने आते हɇ ूथम तो तो औपचाǐरकता मɅ समय लगने बाबत गवाह Ʈारा कथन Ǒकया है ǑƮतीयत गवाह Ʈारा अपनी ूितपरȣ¢ा मɅ यह जाǑहर Ǒकया है Ǒक समय पर रामदयाल Ʈारा आवेदन पऽ ूः तुत नहȣं Ǒकया। उÈ त -5- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal कारणवश उसका आवेदन अपूण[ था। ये कथन ǒवरोधाभासी ूकृित के कथन हɇ जो माऽ यह इंिगत करते हɇ Ǒक जान बूझकर ूितवादȣ Ʈारा वादȣ को आवास आवंटन कȧ लाटरȣ मɅ शािमल नहȣं Ǒकया।'' It was not disputed before this Court also by the learned counsel for the appellant-Board that the aforesaid approval accorded by the Commissioner on 05.10.2002 was subsequently reversed by the Commissioner or by any higher authority. Nor was any reason placed on record for not having issued the consequential orders in favour of the plaintiff. The learned counsel for the respondent brought to the notice of the Court several instances where allotments were made after such approval for change of registration from the initial place of registration to Kota as well as for the change of category and where such approvals were accorded and thereafter the formal orders were issued and the amount was deposited and allotments made. Learned counsel for the appellant-Board sought to contend that on account of subsequent litigation challenging the allotment made by the Board before this Court by means of a Public Interest Litigation the approval could not be accorded. So far as this fact is concerned, the learned counsel for the appellant-Board has frankly -6- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal admitted that the aforesaid litigation started before this Court somewhere in the year 2004-2005, whereas so far as the case of the plaintiff-respondent is concerned, the approval was granted by the Commissioner in the year 2002 on 5th of October when there was no such litigation and orders for other applicants were issued. The instances, which have been pointed out by the learned counsel for the plaintiff-respondent where such approvals were accorded similar to the case of the plaintiff are of the year 2003. Thus, after the approval was granted in the case of the plaintiff-respondent by the Commissioner on the file on 05.10.2002 the authorities of the Board have issued orders for change of registration as well as change of category to similarly situated persons as is evident from the contents of the application filed by the plaintiff-respondent under Order 41 Rule 27 C.P.C. before this Court and its supporting documents. These facts mentioned in the application under Order 41 Rule 27 C.P.C. are not disputed, that after the case of the plaintiff was approved by the Commissioner on 05.10.2002 similar cases were approved by the respondents in the year 2003 and 2004 prior to the aforesaid Public Interest Litigation was brought before this Court. Thus, the plea of the appellant of not being able to issue orders in -7- S.B. Civil Second Appeal No.67 of 2009. R.H.B. Kota Vs. Ram Dayal Meghwal favour of the plaintiff-respondent as a result of the litigation before this Court has no force. In that view of the matter, the defendant- appellant cannot take shelter of the fact that a mere noting in the files do not give any right to the plaintiff-respondent. As has been stated above, since the approval in favour of the plaintiff-respondent was granted by the Commissioner all that was required was consequential orders to be issued by the concerned authorities of the Board and as was admitted by the defendant's own witness that it takes some time to issue formal orders. When such formal orders could be issued based on notices on the file in the case of other it could have been issued for the plaintiff as well. Not having done so amounts to discrimination when there is no satisfactory explanation for not having passed the orders in favour of the plaintiff based upon the approval in the file given by the Commissioner. No substantial question of law arises in the present second appeal. There is a concurrent finding of fact against the appellants. The second appeal is accordingly dismissed. The application under Order 41 Rule 27 C.P.C. stands disposed of. The stay application also stands dismissed. ashok/ (Dalip Singh), J.