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2000 DIGILAW 1311 (PNJ)

Punjab Housing Development Board v. Ashok Kumar

2000-11-03

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Vide letter dated 27.6.1991 one MIG category House No. 488 in Urban Estate, Phase I, Patiala was allotted to Ashok Kumar by the Punjab Housing Development Board (hereinafter referred to as Board). As per the conditions of allotment incorporated in the letter of allotment, he was required to pay 25 per cent of the tentative price of the house within 30 days of the date of letter of allotment. He was required to deposit a sum of Rs. 38034/-, which was to constitute 25% of the tentative price of the MIG category house allotted to him. It was also incumbent upon him to take actual physical possession of the house within the aforesaid period, failing which the allotment was liable to be cancelled. As per him, Central Reserve Police Force (hereinafter referred to as CRPF) was occupying this house and whenever he went to inspect this house, he found the CRPF in occupation of the house. CRPF had broken the glasses of the window panes. They had also removed certain points of electric fittings. House had thus become unfit for human habitation. As per him, there were certain conditions in the letter of allotment and one such condition was that he was required to submit affidavit that the house was complete in all respects and he had no complaint whatsoever with regard to its constructional defects. Before submitting such an affidavit, he inspected the house and found that the house was not complete at all and that flush in the latrine had not been constructed. Water tank had not been fitted and water taps had not been fitted in the water pipes. He requested Estate Officer of the Board to complete the house, make it habitable and remove the deficiencies. Estate Officer was, however, insisting that he should first taken possession and then point out deficiencies. He was also insisting that he should first file an affidavit before taking possession and state therein that the house was complete in all respects. As per him, it was not possible for him to file such an affidavit when the house was incomplete and state that the house was complete in all respects. He never surrendered the house allotted to him by the Board. As per him, it was not possible for him to file such an affidavit when the house was incomplete and state that the house was complete in all respects. He never surrendered the house allotted to him by the Board. Instead, he asked the Estate Officer of the Board that he wanted to take possession of the house allotted to him and also about the amount, which he was required to deposit before taking possession. No reply was, however, conveyed to him. As per him, when he was in correspondence with the Board, the Board issued the order cancelling the allotment of the house. As per him, the cancellation of the house was illegal and unwarranted. He was not required to take possession of the house when the house was incomplete in certain respects and there were certain deficiencies. He could take possession only after the deficiencies had been removed. He was not required to deposit 25% of the tentative price of the house, when the delivery of possession of the house could not take place contemporaneously with the deposit of the amount by him. On these allegations, Ashok Kumar filed suit for declaration challenging the order of cancelation of the allotment of the house to him dated 25.5.1994 saying that cancellating the allotment of MIG category house to him in Urban Estate, Phase I Patiala was illegal and not binding on him and for mandatory injunction directing the defendants to hand over the possession of the said house to him complete in all respects after restoring the allotment of the house to him on receipt of 25% of the tentative price of the house without any penalty. 2. Defendant-Board contested the suit of the plaintiff urging that the house was completely fit for human habitation. It was denied that CRPF people used the house imprudently and broke the glasses of window panes and also removed the certain points of electricity fittings. He was requested many a time to take possession of the house. He failed to compete the necessary formalities and even did not deposit Rs. 25000/- with the Board, which was due to him. In fact the Board wrote so many letters calling upon him to take possession of the house immediately and if at any stage any constructional defect was found the same would be removed. He failed to compete the necessary formalities and even did not deposit Rs. 25000/- with the Board, which was due to him. In fact the Board wrote so many letters calling upon him to take possession of the house immediately and if at any stage any constructional defect was found the same would be removed. He failed to get possession of the house despite letter dated 25.8.1993 having been written to him. Estate Officer again requested him to take possession within 15 days or else the allotment of the house could be cancelled. Defendant wrote another letter to the plaintiff dated 24.9.1993 calling upon him to deposit the requisite amount of Rs. 25000/- with them but he failed to deposit the same. Plaintiff was not interested in taking possession of the house. Defendant was always ready and willing to hand over possession of the house to him after completing all the formalities. As the plaintiff failed to complete the formalities inspite of repeated requests, the earnest money deposited by him stood forfeited. Cancellation of the allotment of plot was thus legal, valid and according to law and regulations. 3. On the pleading of the parties, the following issues were framed. 1. Whether the plaintiff is entitled to the declaration as prayed for ? OPP 2. Whether the suit is not maintainable ? OPD 3 Whether the suit is false and frivolous ? OPD 4. Relief. Vide order dated 31.5.1996, plaintiffs suit was decreed by Civil Judge, Junior Division, Patiala and the Board was directed to treat the order of cancellation as non-est and put the plaintiff in possession of the house on his paying requisite amount without any penalty, in view of his findings, that the plaintiff was not bound to take possession of the house when it was not complete in all respects. He was required to take possession only if the same was complete in all respects. He was not bound to deposit 25% of the tentative price of the house allotted to him if there were certain deficiencies in the house and those deficiencies had not been removed. It was also found that allotment could be cancelled by the Board and not by the Estate Officer. Cancellation of allotment of the house by the Estate Officer was void. It was also found that before cancellation, opportunity should have been given to him of being heard. It was also found that allotment could be cancelled by the Board and not by the Estate Officer. Cancellation of allotment of the house by the Estate Officer was void. It was also found that before cancellation, opportunity should have been given to him of being heard. No such opportunity was given to him of being heard. 4. Board went in appeal, which was dismissed by Additional District Judge, Patiala. 5. Still not satisfied, Board has come up in further appeal to this Court. 6. It was submitted by the learned Counsel for the appellant (Board) that the respondent-plaintiff was allotted MIG category house No. 488 by the Board vide allotment letter dated 27.6.1991. As per the conditions of the letter of allotment, he was to deposit a sum of Rs. 38034/- incorporated in Clause (e) within 30 days of the date of allotment. It was also incorporated in the letter of allotment that it would be incumbent upon him to take actual physical possession of the house within the said period failing which the allotment on hire-purchase was liable to be cancelled and he shall pay charges and penalty as per the terms and conditions of the allotment. It was submitted that the deposit of 25% of the tentative price of MIG category house was to be contemporaneous with his request for being put in possession. The said condition incorporated in the letter of allotment reads as follows :- "(a) Total tentative price of the dwelling unit : Rs. 153,700/- (b) 25% of the tentative price : Rs. 38425/- (c) Monthly instalment : Rs. 1609/- (d) Amount already paid as earnest money (this is subject to confirmation by the Accounts (Wing) : Rs. 2000/- (e) Amount payable before taking possession (b + c - d) : Rs. 38,034/-." It was submitted that possession of the house could not be delivered to the respondent-plaintiff as for some time, the same was in illegal occupation and possession of CRPF. After the Board had succeeded in getting it vacated, the respondent-plaintiff was informed vide letter dated 9.6.1992 that he could take possession after complying with basic conditions of allotment within 30 days of receipt of this letter. In response to the said letter, the respondent-plaintiff expressed his inability to take possession and deposit the requisite amount as the house was without electricity and glass work was yet to be done. In response to the said letter, the respondent-plaintiff expressed his inability to take possession and deposit the requisite amount as the house was without electricity and glass work was yet to be done. He was informed through letter dated 25.2.1993 that the electricity work was complete and possession could be taken any moment. It was submitted that for some time possession of the house could not be delivered to the respondent as the CRPF people had succeeded in occupying the house. It was, however, got vacated and the respondent-plaintiff was informed that he could take possession within 30 days. Respondent in response to the letter dated 8.6.1993 again expressed that there were minor deficiencies in the house regarding taps and water tanks and till those deficiencies were removed he would not be in a position to take possession of the house. Vide letter dated 2.7.1993 the respondent was fully assured that the deficiencies, if any, would certainly be got removed at the time of taking possession and he was again requested to take immediately the possession of the house. There was no positive response from the respondent side. The Board again reminded him of his obligation under the allotment letter and he was again requested to deposit the requisite amount within 15 days and he was reassured that deficiencies, if any, would certainly be got removed at the time of taking possession. In response to the letter dated 25.8.1993, the respondent expressed his complete inability to deposit the requisite amount and take possession on account of his financial and economic conditions. In letter dated 10.9.1993, he stated in no uncertain terms that he was not in a position to pay the requisite amount. He prayed for the extension of time and prayed for some concessions. Vide letter dated 24.9.1993 the Board offered the respondent to deposit the amount which he was ready and willing to deposit and he was assured that after the deposit of the said amount, his prayer for extension of time would be considered. It was submitted that he failed to complete the terms which he himself suggested. Vide letter dated 30.10.1993, he expressed his inability even to pay the monthly instalment as also prayed for reduction in the said amount. It was submitted that he failed to complete the terms which he himself suggested. Vide letter dated 30.10.1993, he expressed his inability even to pay the monthly instalment as also prayed for reduction in the said amount. It was when the Board felt from the conduct and behaviour of the respondent that he had failed to comply with the terms and conditions of letter of allotment despite having been afforded sufficient opportunity that show cause notice dated 16.12.1993 was issued to him to take possession failing which his allotment would be cancelled. Respondent failed to respond to the show cause notice. It was thereafter that the allotment of the house was cancelled vide letter dated 25.5.1994. It was submitted by the learned Counsel for the Board that the respondent-plaintiff was not in a position to comply with the basic terms and conditions of allotment which was that he was to deposit 25% of the tentative price of the house allotted to him. It was submitted by the learned Counsel for the Board that vide letter No. 1516 dated 2.7.1993 Annexure A-1/T the Additional District Judge of the Board wrote to the respondent in response to his letter dated 10.6.1993 that when he takes physical possession of the house, all these defects shall be removed and he was again requested to take possession of the house immediately or else allotment would be cancelled. Vide letter Annexure A-2/T dated 25.8.1993, the Additional District Judge of the Board wrote to the respondent in reference to letter No. 1516 dated 2.7.1993 that he was again being reminded that the defects pointed out him in the house would be removed at the time of taking physical possession of the house. He again requested him to take possession within 30 days of the issue of letter Annexure A-2/T. Vide letter dated 10.9.1993, the respondent had requested the Board in reference to their letter dated 25.8.1993 Annexure A-2/T that he was very much in need of a house because he did not have any house and was living in a rented house and as such the allotment of the house should not be cancelled from his name and his request should be considered sympathetically viz. that the required amount which is to be deposited at the time of possession, which he had arranged for taking possession, he has spent. Out of this amount, an amount of Rs. that the required amount which is to be deposited at the time of possession, which he had arranged for taking possession, he has spent. Out of this amount, an amount of Rs. 10,000/12,000/- has been incurred in the purchase and repair of the materials which have been destroyed during the floods on 11.7.1993. He did not have arrangement for the payment of full amount which was required to be deposited at the time of taking possession. He requested that relief be allowed to him which is similar to the relief, compensation and relaxation given to the flood sufferers and he can deposit Rs. 25000/- instead of full amount and he may be given extension upto 31.10.1993 for taking possession of the house so that in the meantime, he may cover up the losses caused in flood and arrange the required full amount. Vide letter Annexure A-4/T dated 24.9.1993 the respondent was informed to first deposit Rs. 25,000/- and after he deposited Rs. 25,000/- the question of granting him extension upto 31.10.1993 could be considered. Vide letter Annexure A-5/T the respondent requested the Board that he was hesitating to deposit Rs. 25,000/- and if he deposited the full amount of Rs. 25,000/- or 25%, he would be left with no amount to feed his family and if he deposited the required full amount of Rs. 25,000/- or 25% and did not deposit the instalment, it will be violating the terms and conditions of the allotment. His salary was Rs. 2360/- per month and his wife was unemployed. As per the allotment letter, amount of instalment was Rs. 1609/- out of Rs. 2360/-, after paying the amount of instalment, he would be left with only Rs. 750/- and he would not be able to feed his family with this meagre amount of Rs. 750/-. He prayed that amount of instalment should be decreased and it should be between Rs. 1200/- or 1250/- per month and the number of instalments should also be spread over, over a longer period. If it is not possible to decrease the amount of total instalments, then this amount should be deceased for the first 24 or 18 or at least 12 years. If the amount of instalments could be decreased, it should be decreased in all the instalments and the number of instalments be spread over at the wish of the Board. If it is not possible to decrease the amount of total instalments, then this amount should be deceased for the first 24 or 18 or at least 12 years. If the amount of instalments could be decreased, it should be decreased in all the instalments and the number of instalments be spread over at the wish of the Board. It was submitted by the Boards counsel that it is clear that the respondent was not in a position to comply with the terms and conditions of the allotment and pay 25% of the tentative price of the house allotted and he time and again harped on his inability to comply with the terms and conditions of the allotment and make the necessary payment and asked for concession in instalments. It was submitted that it was only an excuse coined by him that he was not bound to pay the amount as the house suffered from certain constructional deficiencies which were not being removed and he could take possession and pay the amount only after those deficiencies were removed. As is clear from the statement of the plaintiff, there was no major deficiency in the house. These were only minor deficiencies which he could call upon the Board to remove after he had made the initial payment and before other instalments became payable. House was allotted to him in June 1991. He was required to deposit 25% of the tentative price of the house allotted to him within 30 days thereof. 7. Learned Counsel for the respondent-plaintiff, on the other hand, submitted that the report of local Commissioner shows that even on 3.11.1995, the house was not complete. There was no door in the middle of two rooms and there was no door in the store. There was no electricity switch board in the entire property. Glasses of the windows in the first room were absent. Wires were hanging loose. Window fitted in the second room was totally broken. The Board fitted in the second room by entering into the kitchen, latrine and bath room was also damaged. There was no water supply in the house. There was no water tap in the latrine or toilet. It was submitted that these amenities were thus not available in the house. Window fitted in the second room was totally broken. The Board fitted in the second room by entering into the kitchen, latrine and bath room was also damaged. There was no water supply in the house. There was no water tap in the latrine or toilet. It was submitted that these amenities were thus not available in the house. It was submitted that when defendant called upon the plaintiff in the year 1993 to furnish affidavit that there was no constructional defect in the house, the house was not complete. Tentative price of the house was Rs. 1,53,700/-. 25% of the tentative price was Rs. 38425/-. Monthly instalment was Rs. 1609/-. As per clause 6(i) of the terms and conditions of allotment, "Notwithstanding anything to the contrary contained in the allotment letter and in these terms and conditions and irrespective of the fact whether or not the possession of the unit has been taken within the prescribed period, the hire-purchase shall commence and shall be deemed to have commenced with effect from the date of issue of the allotment letter for all purposes." It was submitted by the learned Counsel for the Board that the hire-purchase commenced as soon as the letter of allotment was issued. It was submitted that thus there was no excuse for the respondent to withhold the payment. CRPF vacated the house in 6/93 as stated by Smt. Manjit Kumari DW1 and, therefore, after 6/93, there was no excuse for the plaintiff not to have made payment and take possession. If there was any deficiency that could be got removed on request to the Board after the respondent had stepped into possession on deposit of only 25% of the tentative price of the house allotted. There is no equity in favour of the plaintiff to ask or the revival of the allotment of the house which was allotted to him on 1991 price, when it was he who was at fault in complying with the essential terms and conditions of the allotment. 8. Learned counsel for the respondent submitted that Additional District Judge did not have the power to cancel the allotment. Allotment could have been cancelled by the Housing Commissioner. Suffice it to say, this power has been delegated to the Estate Officer by the Housing Commissioner of the Board vide letter of delegation. 8. Learned counsel for the respondent submitted that Additional District Judge did not have the power to cancel the allotment. Allotment could have been cancelled by the Housing Commissioner. Suffice it to say, this power has been delegated to the Estate Officer by the Housing Commissioner of the Board vide letter of delegation. Learned Counsel for the respondent submitted that before the order of cancellation was issued opportunity of hearing should have been given to the respondent. Suffice it to say, in this case, there has been no failure of justice. Respondent was given quite a long rope. He was called upon to comply with the terms and conditions of the allotment which he did not comply with. What would he have submitted if opportunity of hearing had been given to him before allotment was cancelled ? He would have submitted what he has stated in his requests to the Board time and again. Board never asked the respondent to submit affidavit with regard to the condition of the house being satisfactory and correspondingly no letter or application was sent by the respondent expressing his inability to furnish affidavit of the kind and this story was concocted by the respondent for the first time in court which was believed by the Courts below unjustifiably. It would be inequitable to allot the plaintiff the house on 1991 price. Even if he is called upon to pay interest on the 1991 price Board would not be compensated because after 1991 there has been considerable escalation in the value of the real estate. It is pubic money which was invested by the Board in the construction of the houses as per the policy of the State that there should be housing for every person whether he be in the HIG category or MIG category house or LIG category. Learned Counsel for the respondent submitted that Courts below have concurrently found as fact in favour of the respondent. High Court in second appeal cannot take a different view. High Court has to formulate question of law on which it can dwell. In this case, the courts below have not appreciated the evidence in correct perspective at all. Non-appreciation of evidence in wrong perspective has occasioned grave failure of justice. Such a grave failure of justice has to be corrected by this Court in second appeal. High Court has to formulate question of law on which it can dwell. In this case, the courts below have not appreciated the evidence in correct perspective at all. Non-appreciation of evidence in wrong perspective has occasioned grave failure of justice. Such a grave failure of justice has to be corrected by this Court in second appeal. In second appeal, the High Court cannot allow itself to be viewed as rubber stamp meant just to put its seal on the judgments of the courts below whatever they be. High Court has to see whether they conduce to law, fact and equity. If they do not, the High Court would be failing in its duty if such judgments in second appeal are not reversed. 9. For the reasons given above, this appeal succeeds and is, accordingly, allowed. Judgments and decrees of the courts below are set aside and the plaintiff-respondents suit is dismissed. Parties shall bear their own costs throughout. Appeal allowed.