1. Heard counsel for the petitioner and the counsel for the Housing Board.

2. In this writ application initially the petitioner had made a prayer to the following relief:

"I. To command the respondents to allot an LIG house at Patna which was allotted to the petitioner through lottery conducted on 29.7.1991 and subsequently changed on the request of the petitioner and fresh flat 17/1599 situate at Hanuman Nagar was allotted to the petitioner in ST category.

II. To command and direct the respondents to give physical possession of the flat after allotment with immediate effect on the price prevailing on the date of lottery.

III. To further command the respondents to execute higher purchase agreement and give physical possession as per specification given in broucher as well as in advertisement.

IV. To pass any other order or orders to which the petitioner entitled for."

3. Mr. Abhimanyu Sharma, however, on day before Yesterday had while mentioning this case for upgrading had submitted that in changed circumstances when the petitioner has become a Cancer patient she is no longer capable or interested in getting the allotment of a LIG house for which this writ application was filed. Mr. Sharma, however, submits that in the changed circumstances he may be allowed to press this application only for refund of the amount which was deposited by the petitioner alongwith interest. Mr. Sharma in this context had tried to expand his submission by taking a plea that as a matter of fact the flat was not allotted to the petitioner because of constraints on the part of the Housing Board and therefore, the petitioner would be entitled for interest at the market rate.

4. It would be difficult in this case to hold that the petitioner is not responsible for non-allotment of a flat. The scheme was that on submission of application a lottery will be held. The lottery was held in the year 1991 and the petitioner was allotted an income group flat no. 6 in Bahadurpur Housing Colony within the town of Patna. The petitioner, however, for her own reasons had some reservation in accepting such allotment and had filed an application on 1.8.1991 to the Chatrman- cum-Managing Director of the Housing Board for allotting her a new flat in place of one which was allotted to her after the lottery. That application in fact was considered and allowed by the Chairman of the Housing Board but then that change could not be materialize because a large scale of bungling was detected in such chain of re-allotment of flat beyond what was given to the allottees in the lottery. The Government, therefore, had restrained the Housing Board from changing such allotment and that is how the matter remained pending.

5. In such a situation it cannot be said that the Housing Board is solely at fault in non-allotment of the flat in question, inasmuch as the offer of one flat was given to her and the same was not accepted for her own reasons as would be evident from Annexure-A to the counter affidavit. Considering this aspect, the petitioner at best can get interest of 5 per cent per annum as per the statutory provisions for refund of earnest money in terms of Section 45 of the Bihar State Housing Board Regulation.

6. The reliance placed by the petitioner on a judgment of this Court in the case of Smt. Mira Mishra vs. State of Bihar, reported in 2001(3) PLJR 809, is wholly misplaced, inasmuch as there it was not the case of the petitioners that they had been allotted some flat or house in a lottery and they refused to accept such allotment. In fact there it was a delay on the part of the Housing Board and escalation of cost whose demand was not met by the petitioner on the ground of their financial condition. In such a situation this Court had held that the petitioner was not at fault in not completing the construction of fiat/house in time and was also not to be blamed for not accepting the allotment subsequently made on an escalated cost. The facts of this case, however are