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2007 DIGILAW 1101 (PAT)

Bihar State Housing Board v. Sahil Kumar Chanda

2007-07-10

KISHORE K.MANDAL, NARAYAN ROY

body2007
Judgment 1. Heard learned counsel for the appellants and learned counsel for the contesting respondent-writ petitioners. 2. This appeal is directed against the order dated 14.2.2007 passed by the learned Single Judge of this court allowing the writ application with costs. 3. The writ petitioner had challenged the demand notice raised by the Housing Board, Gaya on 19.8.2000 on the plea that he had already deposited the cost of the flat on demand made by the Housing Board and, therefore, there could not have been any occasion for escalation and demand notice. 4. Learned Single Judge of this court held that the demand made by the Housing Board was arbitrary and based on no reasons. The demand notice accordingly was quashed with costs. 5. Learned counsel for the appellants submitted that there is already a clause in the sale agreement saying that there may be hike in the price of the flat and accordingly the Board would reserve the right to make a demand. It is further submitted that there is also arbitration cause in the agreement and in case there would have been any dispute pertaining to the demand notice, the arbitration clause could have been invoked by the aggrieved person but admittedly, this was not done and the extraordinary jurisdiction of this court under Article 226 of the Constitution was invoked. In this connection, learned counsel for the appellant has produced before us an order passed by a Bench of this Court in LPA No. 1373 of 2000. A Bench of this court dealing with similar situation, held that in view of the arbitration clause, extraordinary power could not have been exercised and the aggrieved party could have invoked the arbitration clause. 6. In the instant case, it appears that there is arbitration clause and the writ petitioner without invoking the same, approached this Court in writ jurisdiction. 7. Learned Single Judge of this Court, however, has not recorded any finding on the clauses inserted in the agreement pertaining to hike in the price and about arbitration clause. The findings recorded by the learned Single Judge of this court, in this view of the matter, in our opinion, would not be sustainable as the writ petitioner had efficacious remedy whereby and whereunder he could have invoked the arbitration provision. 8. Regard being had to the facts and circumstances of the case, this Letters Patent Appeal is allowed. The findings recorded by the learned Single Judge of this court, in this view of the matter, in our opinion, would not be sustainable as the writ petitioner had efficacious remedy whereby and whereunder he could have invoked the arbitration provision. 8. Regard being had to the facts and circumstances of the case, this Letters Patent Appeal is allowed. Order impugned is set aside. However, the writ petitioner, if so advised, may invoke the arbitration clause as referred in the agreement. In case he does so within a period of two months from today, the demand notice so served upon him by the Housing Board, shall be kept in abeyance. 9. No costs.