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2006 DIGILAW 977 (PAT)

Bina Singh v. Bihar State Housing Board

2006-11-01

S.N.HUSSAIN

body2006
Judgment 1. Heard learned counsel for the petitioners and learned counsel for the respondents-Bihar State Housing Board (hereinafter referred to as the Board for the sake of brevity). 2. Petitioners seek the relief of a writ a mandamus commanding the respondents to give possession of HIG Plot No. 5H/175 measuring 1875 Sq. ft. as per allotment letter no. 2575 dated 26.9.1991 (Annexure-1) or an equivalent HIG Plot in any suitable area in Patna town. Alternatively, it has been prayed that the respondents be directed to refund the amount of Rs. 1,34,435.00 plus the cost of registration amounting to Rs. 5,000.00 totalling Rs.1,39,435.00, which has already been paid to the respondents by Late Colonel Kunwar Singh, husband of petitioner no. 1 and father of remaining petitioners no. 2 and 3, to the petitioners with interest at commercial rate along with an appropriate amount of compensation due to physical harassment and mental agony caused to the petitioners due to the acts and attitude of the respondents. Subsequently, another relief was sought by the petitioners which was allowed to be added by this court on 24.8.2006 challenging a subsequent development, namely order dated 14.8.2001 (annexure-10), passed by the Managing Director of the Board (respondent no. 3) by which he cancelled of the said predecessor of the petitioners. 3. Briefly stated the facts involved in the case are as follows; (a) In response to an advertisement, on 16.1.1981 the predecessor of the petitioners, namely late Colonel Kunwar Singh, applied for allotment of a HIG Plot earmarked for military personel by virtue of Rule 10(ii)(e) of the Bihar State Housing Board Rules, 1983 (here in after referred to as the "the Rules" for the sake of brevity) before the Board and alongwith it he also filed the cost of registration amounting to Rs. 5,000/-. (b) On 26.9.1991 the Board issued a letter (annexure-1) allotting HIG Plot No. 5H/175 at Digha Housing Colony, Patna measuring 1875 Sq. ft. to Late Colonel Kunwar Singh. (c) On 12.1.1996 a Hire Purchase Agreement (annexure-2) was executed by the said Late Colonel Kunwar Singh and the authorities of the Board with respect to the said plot, according to which he was to deposit Rs. 1,34,435.00 inclusive of initial payment of Rs. 40,330.00 paid at the time of agreement and the balance was to be paid by him in 60 equal monthly instalments. 1,34,435.00 inclusive of initial payment of Rs. 40,330.00 paid at the time of agreement and the balance was to be paid by him in 60 equal monthly instalments. (d) Thereafter, the said Late Colonel Kunwar Singh deposited the entire amount with the Board which is apparent from the money receipts, (annexure-3 series). (e) On 30.12.1999, the said Late Colonel Kunwar Singh died-in-harness leaving behind the petitioners as his heirs and legal representatives. (f) On 9.5.2000 the petitioners filed an application (annexure-4) stating the matter in detail to the Managing Director of the Board (respondent no. 3) through its Executive Engineer (respondent no. 5) requesting for substituting the name of the petitioners and to give possession of the plot in question to the petitioners as they, having no residential house in Patna, were residing in a rented flat, whereafter reminders were also sent. (g) On 15.9.2000 the Board sent a letter (anneuxre-7) through its Deputy Estate Officer asking petitioner no. 1 to furnish death certificate of her husband and an affidavit regarding her inheritance. (h) On 23.10.2000 petitioner no. 1 complied the said requirement (annexure-8) and sent the death certificate of her husband as well as her affidavit regarding his heirs to Board stating that the petitioners were the only Class I heirs of the deceased. (i) Although Rule 34 of the Rules provides that the Board had the duly to deliver the possession of the allotted plot to the allottee after payment of entire amount as per the agreement, but the Board neither gave delivery of possession of the same, nor sent any information regarding the same to the petitioners even several years after the payment made by the allottee. (j) In the said circumstances, this writ petition was filed by the petitioners on 2.5.2001 after serving two copies of the writ petition on the learned counsel for the respondent-Board. (k) During the pendency of this writ petition the Managing Director of the Board (respondent no. 3) issued order dated 14.8.2001 (annexure-10) canceling the order of allotment dated 26.9.1991 (annexure-I).This order has also been challenged by the writ petitioners by way of an interlocutory application. 4. (k) During the pendency of this writ petition the Managing Director of the Board (respondent no. 3) issued order dated 14.8.2001 (annexure-10) canceling the order of allotment dated 26.9.1991 (annexure-I).This order has also been challenged by the writ petitioners by way of an interlocutory application. 4. Learned counsel for the petitioners has submitted that it is not in dispute that the entire amount has been paid as per the Hire Purchase Agreement and nothing left has to be done by the petitioners and hence it was the duty of the respondent- Board and its authorities to deliver possession of the plot in question to the petitioners and execute a deed of transfer in their favour, but instead of that the respondents are evading putting the petitioners to undue harassment and agony for several years. 5. Learned counsel for the petitioners further submits that they have come to know that the Board is left with no plot in Digha Housing Colony due to the negligence and irregularities of its authorities and hence the Board should either give an equivalent plot situated in any other suitable sites in Patna to the petitioners or refund the amount totalling Rs. 1,39,435.00 deposited by the predecessor of the petitioners with the Board together with interest at commercial rate and cost as per Rule 33(iv) of the Rules. Learned counsel for the petitioner relies upon a decision of this Court in case of Ramkeshwar Chaudhary Vs. State of Bihar & Ors., reported in 2003(3) PLJR 45 , with respect to a similar matter, in paragraphs 14 and 15 of which the respondents were directed to refund the deposits made by the petitioners from time to time with 12% interest with a quarterly rest with cost of Rs. 5,000/- as according to the Hon ble Single Judge Regulation 45 did not govern/cover interest or rate on such refund. Hence, he prays that the amount deposited by the predecessor of the petitioners should be directed to be refunded to the petitioners with interest at the rate of 12% with a quarterly rest with cost of Rs. 5,000/- as has been done in the afore said case. 6. Hence, he prays that the amount deposited by the predecessor of the petitioners should be directed to be refunded to the petitioners with interest at the rate of 12% with a quarterly rest with cost of Rs. 5,000/- as has been done in the afore said case. 6. On the other hand, learned counsel for the respondents-Board submits that it is true that neither any plot is available in Digha Housing Colony, nor any suitable plot is available at any other place in Patna which the respondents could give to the petitioners. He further submits that certain plots allotted to the allottees could not be handed over to them due to encroachment by persons who had no right over the lands which matter traversed to this court in an earlier Public Interest Litigation bearing CWJC No. 3991 of 1987, wherein the various problems faced by the Board in executing its housing scheme in Digha Housing Colony, Patna were taken into account and several orders have been passed by this court. 7. Learned counsel for the respondent-Board further submits that the Board is ready to refund the entire amount deposited by the allottee along with simple interest at the rate of 5% per annum. He also submits that the aforesaid decision of the Hon ble Single Judge of this Court in Ramkeshwar Chaudhary (supra) has been challenged by the Board in LPA No. 500 of 2003 and a Division Bench of this Court after considering the matter stayed the operation of that order regarding payment of interest at the rate of 12% per annum and directed the Board to pay the amount involved alongwith simple interest at the rate of 5% per annum. He further relies upon another decision of this Court dated 31.8.2006 passed in CWJC No. 4686 of 2001 in which, while allowing the writ petition, the Board was directed to pay the entire amount deposited by the petitioners with respect to the allotment of plot in question with simple interest @ 5% per annum with effect from the dates on which respective deposits were made by the petitioners to the Board till the date of such refund. 8. Considering the facts and circumstances of the case as well as the arguments raised by the parties and the materials on record it is quite apparent that the original allottee has deposited the entire amount of Rs. 8. Considering the facts and circumstances of the case as well as the arguments raised by the parties and the materials on record it is quite apparent that the original allottee has deposited the entire amount of Rs. 1,34,435.00 as per the agreement and has also deposited the cost of registration (Rs. 5,000.00) for the plot in question and no amount out of the same is remaining, but the Board is unable to give possession either of the plot in question or of a similar plot with equivalent area in any other area of Patna town. It is also apparent that the petitioners in the alternative has asked for refund of the amount deposited by the allottee and the Board and its authorities are ready and willing to refund the same. Hence, the only question which remains to be decided is with respect to the rate of interest and cost alongwith which the said amount in question has to be refunded by the Board to the petitioners. 9. The Bihar State Housing Board (Management and Disposal of Housing Estates) Regulation, 1983 (hereinafter referred to as the Regulation for the sake of brevity) was made under the provision of Sec. 115 of the Bihar State Housing Board Act, 1982 (hereinafter referred to as the Act for the sake of brevity) and was duly published in the Bihar Gazette (Extraordinary dated 24.5.1983 for the purpose of giving effect to the provisions of the Act. Regulation 45 of the said Regulation reads as follows:- "45. Simple interest at the rate of 5 per cent will be payable on the amount of earnest money deposited by the applicants, after the date of enforcement of this regulation. No interest will be payable on deposits made here in before." 10. Hence the said regulation clearly and emphatically provides that simple interest at the rate of 5 per cent per annum will be payable in such cases on the earnest money deposited by the allottee and thus the rate of interest cannot travel beyond the interest regulated by the said statutory Regulations which fixed it at 5 per cent per annum.The said Regulation being self contained and the interest payable being regulated by the statute under the Regulation, this court finds it fully applicable to the instant case and also finds no reason to travel beyond the pale of statutory regulations. This view also finds support from the decision of the Apex Court dated 17.2.1997 passed in Civil Appeal Nos. 1566-1567 of 1997 arising out of SLP (C) Nos. 26021-22 of 1995 (Bihar State Housing Board & Ors. Vs. Vijay Sharan & Ors.) Furthermore, in view of the aforesaid provision of law as well as the case laws, a Division Bench of this Court vide its interim order dated 27.6.2003 passed in LPA No. 500 of 2003 stayed the order of the Hon ble Single Judge in case of Ramkeshwar Chaudhary (supra) and directed the Board to pay interest at the rate of 5 percent per annum. However, the said letters patent appeal is pending for final adjudication. 11. Considering the entire matter as aforesaid, this writ petition is allowed and the respondent-Board is directed to pay the entire deposits made by the allottee amounting to Rs. 1,39,435.00 with respect to the allotment of the aforesaid plot in question with simple interest at the rate of 5% (five per cent) per annum with effect from the date of which respective deposits were made by the petitioners to the respondent Board till the date of such refund. The respondents are further directed to pay the entire amount as aforesaid to the petitioners with interest within a period of two months from today. 12. Let a copy of this order be handed over to the learned counsel for the respondents-Board for prompt and speedy compliance.