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2012 DIGILAW 380 (PAT)

Anant Jha v. State of Bihar

2012-03-01

RAVI RANJAN

body2012
ORDER : Heard learned counsel for the petitioner, State and the Bihar State Housing Board. 2. Petitioner had filed this writ application for quashing Annexure-14 whereby and whereunder further direction for payment of the price of the MIG plot allotted to the petitioner at Digha at the revised rate of Rs.3.75 lacs per katha was given by the respondents. However, at the time of hearing of this writ application, the petitioner confines his prayer only for refund of the total amount paid by him along with interest. 3. It is submitted that the petitioner was allotted plot no. 8M/27 measuring an area of 1430 square feet on 29.11.1995 itself at the tentative price of Rs.76,897/-. Out of that, the petitioner had already paid Rs.23,419/-. He was given possession on paper but no physical possession has been given to him on the spot and suddenly vide Annexures-13 and 14 notices were published in the newspaper in the year 2005 raising the price of the plot concerned as stated therein. It is submitted that the respondents were wholly unjustified in doing that when it was apparent that they were not going to develop the aforesaid Digha Housing Colony in view of the concerned law and ORDER :situation and their inability to tackle with that. When possession of the plot could not be given to the petitioner and only a possession letter has been delivered to him, the entire exercise of enhancing price etc. was showy, unjustified and unwarranted. Thus, learned counsel submits that in view of the admitted position that the Digha Housing Colony is not going to be developed any more, a new statute has come up namely Digha Acquired Land Settlement Act, 2010 ( Bihar Act 14 of 2010). It is submitted that the aforesaid Act provides refund along with compound interest. However, in view of the fact that the said Act is to be enforced from the date of its publication in the official Gazette and since admittedly the same has not been notified till date, obviously the same is yet to be enforced. It is also submitted that in several identical cases this Court has adjourned the matters waiting for such notification by the State Government. In this case also, the matter was adjourned on 11.11.2011on that account but the concerned notification is still elusive. It is also submitted that in several identical cases this Court has adjourned the matters waiting for such notification by the State Government. In this case also, the matter was adjourned on 11.11.2011on that account but the concerned notification is still elusive. Thus, it is contended that since the respondents have kept the money of the petitioner for about 16 years but have not kept their promise of developing the Digha Area, the petitioner would be entitled for refund of his amount alongwith compound interest @ 12%. 4. A counter affidavit has been filed on behalf of the Bihar State Housing Board. It has been clearly stated in paragraph no.6 thereof that the Board was desirous to hand over the possession of the plot but due to the prevalent law and ORDER :situation the same could not be given to the petitioner or to any other allottee of the Digha Area. However, it has been stated that the refund can only be made with the simple interest at the rate of 5% per annum as per the provision as contained in Regulation 45 of the Bihar State Housing Board (Management and Disposal of Housing Estates) Regulation, 1983 (hereinafter refereed to be as Regulation 45). The respondents have placed reliance upon a decision dated 10.2.2010 passed in C.W.J.C. No.7335 of 1991 (Gur Bilas Singh & Ors. Versus The State of Bihar & Ors.) of a Division Bench of this Court. A copy thereof has been appended as Annexure-A. However, upon the plain reading of the aforesaid ORDER :passed by the Division Bench it would be apparent that the issue was confined to the payment of interest upon the earnest money only and in view of the statutory provision as contained in Regulation 45 as described above, the Division Bench has opined that it can only direct for refund of the earnest money of Rs.5,000/- deposited by each of petitioners along with simple interest at the rate of 5% per annum. From the paragraph 2 of the JUDGMENT : it would be apparent that the claim of the petitioners itself was that they would be satisfied with the refund of their initial payment of earnest money of Rs.5,000/- with interest at the market rate. From the paragraph 2 of the JUDGMENT : it would be apparent that the claim of the petitioners itself was that they would be satisfied with the refund of their initial payment of earnest money of Rs.5,000/- with interest at the market rate. However, the Division Bench has opined that only simple interest @ 5% per annum can be ORDER :ed to be given in view of the specific statutory provision as per Regulation 45 regarding rate of interest to paid upon the earnest money. It is also contended on behalf of the Bihar State Housing Board that, in view of the statutory provision of payment of 5% simple interest upon earnest money, other deposits would also at best fetch the similar rate of interest. This submission made on behalf of the respondents is only noted to be rejected in view of the express provision under Regulation 45 having been confined only to the earnest money. Thus, in the opinion of this Court that cannot be stretched for the purposes of dealing with other deposits. Perhaps it would not have been imagined by anybody that such situation would ever arise that even after taking the amount by way of cost or price of the plot, house or flat in question, possession of the same would never be delivered to the allottees. Now, having done so, for whatsoever reason, but admittedly without any fault on part of the allottees, and the money of the allottees had been kept for decades, the aforesaid stand taken by the Housing Board would not be tenable. 5. In the opinion of this Court, in the aforesaid C.W.J.C. No.7335 of 1991, the Division Bench has considered the limited issue only with regard to the refund of earnest money upon interest at the rate of 5% per annum as per the Regulation. However, in the identical case, another Division Bench of this Court in Dr. Nitendra Prasad Sinha vs. The Chairman-cum-Managing Director reported in 2011(4) PLJR 219 , while allowing the simple interest at the rate of 5% per annum on the earnest money, has allowed the refund of the disposal price or cost of the land paid by the petitioner at the rate of 12% per annum calculated at quarterly rest from the date of payment made by the petitioner till the date of the refund. This Court would not have any difficulty in following the decision rendered in Dr. Nitendra Prasad Sinha (supra). 6. In above view of the matter, it is held that since it has been admitted by the Bihar State Housing Board that it has failed to deliver physical possession to the petitioner, though it was desirous to do that, and since admittedly there is no fault on part of the petitioner, he would be entitled for relief as given in Dr. Nitendra Prasad Sinha (supra). Thus, this Court also directs for refund of earnest money paid by the petitioner alongwith simple interest at the rate of 5% per annum as per the statutory provision as contained in Regulation 45 to be calculated from the date of its deposit till the date of its refund. However, so far the deposit that had been made by the petitioner towards the disposal price/ cost of the plot concerned, that has to be refunded along with an interest at the rate of 12% per annum to be calculated at quarterly rest from the date of its payment by the petitioner till the date of its refund. 7. The aforesaid refund should be made within three months from the date of receipt/production of a certified copy of this ORDER :before the respondent no.3. 8. Accordingly, this writ application stands allowed.