IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Raja Ram Gaur Vs. Rajasthan Housing Board & Another (S. B. Civil Writ Petition No.1624/1998) S.B. Civil Writ Petition under Article 226 of the Constitution of India. Date of Judgment: July 10, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Vigyan Shah, for the Petitioner. Mr. Shyam Arya, for the respondents. Reportable Per Court: Like the proverbial “vanvas of the Pandavas” the petitioner has been hoping that he would have a roof over his head. Despite his hopes, being deprived of a flat by the Rajasthan Housing Board (“the Board” for short), the petitioner has come knocking at the doors of this Court. 2. In short, the petitioner's pitiable story is that in 1982 the Board had advertised a General Registration Scheme for houses/ flats for various categories i.e. HIG/ MIG(A)/ MIG(B)/ and LIG on higher- purchase basis. Since the petitioner was financially constrained, he could not afford to purchase a flat outrightly. Therefore, taking advantage of the scheme, which was based on higher-purchase basis, the petitioner applied for a flat under the HIG category. The petitioner was not only found eligible, but was also given priority No.228 under the Sanganer Scheme by the Board. He was directed to deposit a total amount of Rs.50,000/- in three instalments. Consequently on 13-4-1992, the petitioner deposited the first instalment of Rs.20,000/-, and on 21-5-1992, the second instalment of Rs.20,000/-. He was required to deposit the third instalment within thirteen months from 21-5-1992. However, even before the said instalment became due, vide order dated 30-4-1993, the Board informed the petitioner that he is required to pay Rs.4,54,608/- as the final amount in one lump sum. Since the petitioner could not generate and pay such a huge amount, he submitted a representation to the Board on 30-4-1993 itself. Instead of paying any heed to the representation, on 2-5-1995, the Board cancelled the petitioner's allotment for a flat. 3. In January, 1996, the Board again issued an advertisement for allotment of independent houses in Sanganer Scheme. According to the said advertisement, a lottery was to be conducted on 12-1-1996. Since the petitioner was still eager to have a house, he applied in the said scheme for a house under HIG category, or under the MIG(B) category. Even under this scheme, the house was to be allotted on higher-purchase basis. Although the petitioner kept on sending reminders to the Board, the Board turned a deaf ear to the petitioner's pleas. Hence, this petition before this Court. 4. During the course of pendency of this writ petition, this Court directed the parties to negotiate about the possibility of flat No.52/19 being allotted to the petitioner, which was originally allotted to him by the Board. The Court also directed the Board to file an affidavit whether the said flat was still vacant or not? According to the affidavit filed by the Board the flat is still available. 5. Mr. Vigyan Shah, learned counsel for the petitioner, has vehemently contended that in contractual matter the State is supposed to be just, fair and reasonable. Once the Board has entered into a contract whereby the flat was to be sold on higher- purchase basis, the Board could not have resiled from the said contract. It could not have insisted that the total amount be paid in one lump sum. Therefore, the Board was trying to wriggle out from the contract, which it had made with the petitioner. Secondly, once a promise was made to the petitioner, and once the petitioner had changed his legal position by depositing two instalments of Rs.20,000/- each, the Board is estopped from resiling from its promise under the doctrine of Promissory Estopple. Thirdly, a citizen has a legitimate expectation that the Board would adhere to the contract and would sell the flat on higher-purchase basis. Therefore, the Board cannot pass the order dated 2-5-1995 cancelling the allotment of flat without giving an opportunity of hearing to the petitioner. In the present case, the petitioner's right under legitimate expectation has been violated. Fourthly, under the right to “live”, as contained in Article 21 of the Constitution of India, the petitioner has a right to live with human dignity. Human dignity would mean living above animal existence. Therefore, the petitioner has a fundamental right to have a roof over his head. He also has a right to hold a property under Article 300 A of the Constitution of India. The said right is being violated not by the authority of law, but by the caprice of the Board. Lastly, under Article 47 of the Constitution of India, the State or its instrumentality, like the Board, is duty bound to raise standard of living of the people. In order to provide houses to the masses, the Board was created under a statute. Therefore, the Board is duty bound to construct the house, and sell the house to the people at large. In case the Board is permitted to cancel the allotment in an unjust, and unfair manner, the action of the Board would become self- defeating to the very purpose for which the Board was created. Therefore, the order dated 2-5-1995 and the omission on the part of the Board in not allotting the flat to the petitioner on higher- purchase basis is highly arbitrary and unreasonable one. 6. On the other hand, Mr. Shyam Arya, learned counsel for the Board, has contended that the Board has ample power to wriggle out of a contract as the Board can change the terms and condition of the contract unilaterally. Secondly, since the petitioner did not pay the amount in lump sum as directed by the Board vide order dated 30-4- 1993, the Board was justified in cancelling the allotment of the flat. Lastly, as the petitioner was not eligible to apply under the scheme floated in January, 1996, therefore, the Board was legally justified in not allotting any flat or house in favour of the petitioner under the said scheme. 7. Heard the learned counsel for the parties, perused the material available on record. 8. Citizens of this country no longer live under an Imperial Government; they live under a socialist, democratic republic i.e. under a welfare State. The first and foremost duty of a welfare state is to protect and promote the interest and rights of its people. One of the dreams of the preamble of the Constitution is to provide social and economic justice to the people. One of the duties imposed upon the State is to improve the living condition of the people. Considering the unimaginable poverty, considering the plight of the middle class, considering the housing crisis in the country, Housing Boards have been constituted under a statute. The very raison d'etre (the reason for being) of the Board is to construct and provide houses for Higher Income Group, Middle Income Group, and Lower Income Group at reasonable rates. Since the majority of persons cannot afford to buy a house at an exorbitant price, since most of the people cannot afford to buy house in one lump sum, periodically the Board has floated schemes for allotting houses on higher-purchase basis. The object of such scheme is to provide houses to the people in easy instalments. Such schemes are not only light on the financial position of the people, but also simultaneously ensure a roof over their heads. 9. It is, indeed, trite to state that a contract is binding on both the parties. Even if the State is a contracting party, it cannot be permitted to wriggle out of the terms and conditions of the contract. Not only in the administrative field, but also in the commercial arena, the State is expected to act justly, fairly, and reasonably with the people. For, under the Constitution every action of the State, administrative or commercial, have to be just, fair and reasonable. Any action which is unreasonable, or unfair, would be an anathema to the sacred concept of equality enshrined in Article 14 of the Constitution of India. Therefore, the Board cannot be permitted to unilaterally change the condition of the contract and to impose a new condition on the petitioner. In case, the Board were permitted to do so, the people would be left at the whims and caprice and mercy of the Board. Under the constitutional scheme, under the constitutional mandate, the Board cannot be granted unbridled, uncontrolled powers. Like a private party, the Board is also bound by the contract it enters into. Since, the Board had made a promise to the petitioner to sell the flat on higher-purchase basis, since the petitioner has acted on the said promise, since the petitioner has changed his legal position by depositing two instalments of Rs.20,000/- each, the Board is estopped from changing its position under the doctrine of promissory estopple. 10. The citizens of this country have a fundamental right to expect that the Board—an instrumentality of the State—would act reasonably, fairly, and justly. In case, the Board wanted to pass an order changing terms and condition of the contract, it should have re- negotiated the contract with the petitioner. Since, the Board has singularly failed to do so, the Board has violated petitioner's right under the doctrine of legitimate expectation. 11. It is, indeed, a settled position of law that no adverse order can be passed against a person without giving him an opportunity of hearing. The principles of natural justice, which require that other side be heard (audi alteram partem), are almost universal in their application. Therefore, before passing the order dated 2-5-1995, the Board should have given an opportunity of hearing to the petitioner. However, the Board has miserably failed to do so. Therefore, clearly the Board has violated the principles of natural justice. 12. For the reasons stated above, the order dated 2-5-1995 is quashed and set aside. According to the Board, the said flat is still available. Therefore, the Board is directed to allot the said flat on the basis of the price as on 30-4-1993. The petitioner shall be sold the flat on the basis of hire-purchase basis. According to Mr. Vigyan Shah, the petitioner has already deposited Rs.50,000/- with the Board; the Board has not returned the said amount. Therefore, the Board is directed to adjust the amount of Rs.50,000/- with the interest earned there on with the total price of the flat. 13. With these observations, the writ petition, is hereby, allowed. (R. S. CHAUHAN) J. arn