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2013 DIGILAW 634 (PAT)

Most. Sawari Devi v. State of Bihar

2013-05-17

S.N.HUSSAIN

body2013
ORDER 1. This writ petition has been filed by the petitioner challenging the last demand notice issued by the respondent-Bihar State Housing Board (hereinafter referred to as ‘the Board’ for the sake of brevity) vide demand notice no.3949 dated 06.09.2007 under the signature of Manager, Estate-cum-Additional Secretary of the Board claiming Rs.10,99,113.00 as the cost of M.I.G. House No.181 situated at Hanuman Nagar, P.S.- Patrakar Nagar, District –Patna. 2. I.A. No.4163 of 2012 has been filed on behalf of the petitioner for adding a relief of quashing demand notice no.3314 dated 10.04.2012 and demand notice no.3354 dated 11.04.2012 both issued by the Board and annexed to its show-cause demanding Rs.16,71,348.81, which was although in continuation of the impugned demand notice dated 06.09.2007 but it was much beyond the said amount. I.A. No.662 of 2013 has been filed on behalf of the petitioner for adding a relief of quashing the statement dated 11.11.1998 regarding cost of M.I.G. House No.181 at Hanuman Nagar in place of M.I.G. House No.232 of Lohiya Nagar, which was duly allotted to the petitioner by the Board in its meeting dated 11.01.1991 under widow quota. Considering the facts and circumstances of the case as well as the pleadings of the parties, both the aforesaid interlocutory applications are allowed. Let the reliefs claimed therein be added to the reliefs claimed in the writ petition. 3. Learned counsel for the petitioner stated that the petitioner was a homeless widow and hence for her accommodation she applied before the Board for allotment of a house under 10 (2) (Ja) of the Bihar State Housing Board Act, 1983 (hereinafter referred to as ‘the Act’ for the sake of brevity), whereafter in the 138th meeting of the Board dated 11.01.1991 Agenda no.15 was passed allotting a double storied M.I.G. House No.232 at Lohiya Nagar, Kankarbagh to the petitioner, who deposited the tentative cost of Rs.41,372.00 for the said house on 15.02.1991 as per the demand of the Board. 4. 4. Learned counsel for the petitioner submitted that similarly one Haribansh Mishra was allotted M.I.G. House No.181 at Hanuman Nagar under military quota, but not being satisfied with the said allotment he filed C.W.J.C. No.4187 of 1982 claiming that being defence personnel he was entitled to allotment of house in Lohiya Nagar and on consent given by learned counsel appearing on behalf of the Board, the writ petition was disposed of on 20.12.1983 directing the Board to allot any vacant middle income group house in Hanuman Nagar Colony to him within six months. However, the Board could not make any such allotment as M.I.G. House No.181 allotted to him was in occupation of one Gayatri Devi since 1981 and for which Eviction Case No.04 of 1985 was filed by the Board, whereas the said Gayatri Devi filed Title Suit No.10 of 1985 for declaration of right, title and possession over M.I.G. House No.181. In the said circumstances Haribansh Mishra filed M.J.C. No.140 of 1987 in the High Court for punishing the authorities of the Board for violation of order dated 20.12.1983 passed in C.W.J.C. No.4187 of 1982. He also filed Civil Review No.28 of 1988 for review of order dated 20.12.1983 passed in C.W.J.C. No.4187 of 1982 for directing the Board to allot any house to him in Lohiya Nagar on the ground that in Lohiya Nagar Colony houses were lying vacant, whereas M.I.G. House No.181 in Hanuman Nagar, which was allotted to him was not vacant. 5. In the meantime writ petitioner Most. Sawari Devi had applied for allotment of M.I.G. House under widow quota and on the recommendation of the concerned authorities, the State Government vide order dated 01.08.1987 directed the Secretary of Housing and Building Department to allot M.I.G. House No.232 in Lohiya Nagar Colony to her though till then allotment of the said house made in favour of Chandrika Prasad had not been cancelled. Thereafter a report was called from the Board, which was submitted on 02.01.1988, whereafter the government passed order directing the Board to allot M.I.G. House No.232 in Lohiya Nagar to Most. Sawari Devi under widow quota on compassion ground treating her case to be special one. Thereafter a report was called from the Board, which was submitted on 02.01.1988, whereafter the government passed order directing the Board to allot M.I.G. House No.232 in Lohiya Nagar to Most. Sawari Devi under widow quota on compassion ground treating her case to be special one. Thereafter the Managing Director of the Board prepared an agenda for being passed by the Board of Directors for the said purpose, but the Chairman of the Board did not place the matter in the meeting of the Board. Hence Most. Sawari Devi (writ petitioner) filed C.W.J.C. No.1960 of 1988 for directing the Chairman to place the matter for allotment of M.I.G. House No.232 of Lohiya Nagar to her in the next meeting of the Board. 6. The aforesaid four cases, namely Civil Review No.16 of 1984, M.J.C. No.140 of 1987, Civil Review No.28 of 1988 and C.W.J.C. No.1960 of 1988 were heard by a Division Bench of this court and were disposed of by a common consent order passed on 12.08.1988 directing the Board to make allotment of M.I.G. House No.232 in Lohiya Nagar Colony to Haribansh Mishra and M.I.G. House No.181 in Hanuman Nagar Colony to Most. Sawari Devi. 7. Learned counsel for the petitioner averred that the petitioner being a homeless widow, the allotment was made to her in special circumstances vide agenda of the Board, whereafter the money as required by the Board was deposited by the petitioner, but possession of M.I.G. House No.232 in Lohiya Nagar was not given to her and after several litigations as mentioned above final order dated 12.08.1988 was passed by a Division Bench of this court directing M.I.G. House No.181 situated at Hanuman Nagar to be allotted to the petitioner, whereas the other house MIG 232 situated at Lohiya Nagar was directed to be allotted to Haribansh Mishra. However, in spite of that several unnecessary litigations continued due to dilatory and negligent attitude of the authorities of the Board and final possession of M.I.G. House No.181 at Hanuman Nagar was given to the petitioner on 23.06.1999 and since then the writ petitioner was coming in peaceful possession thereof. 8. However, in spite of that several unnecessary litigations continued due to dilatory and negligent attitude of the authorities of the Board and final possession of M.I.G. House No.181 at Hanuman Nagar was given to the petitioner on 23.06.1999 and since then the writ petitioner was coming in peaceful possession thereof. 8. Learned counsel for the petitioner asserted that all of a sudden vide notice dated 06.09.2007 the respondent-authorities of the Board started demanding high price of the M.I.G. House as per the prevalent cost of 1999 with interest, although the petitioner had paid the entire tentative money for M.I.G. House No.232, which was a double storied house, whereas M.I.G. House No.181, which was subsequently given to the petitioner in lieu of M.I.G. House No.232 was a single storied house. Furthermore, M.I.G. House No.232 was in continuous possession of Haribansh Mishra since 1988 after he had made payments of cost prevailing in 1979. Hence being aggrieved by the attitude of the authorities, petitioner has filed the instant writ petition. 9. On the other hand, learned counsel for the respondents stated that vide order dated 28.03.1989 passed in M.J.C. No.763 of 1988 earlier order dated 12.08.1988 was recalled by this court and hence the petitioner cannot take any advantage of order dated 12.08.1988. 10. Learned counsel for the respondents submitted that the date of allotment of M.I.G. House No.181 situated at Hanuman Nagar by the Board in favour of the writ petitioner was 10.03.1995, whereafter possession was admittedly given to her in the year 1999. In the said circumstances, the value of the house in question was not the same in 1999 as it was in the year 1988. Thus the petitioner’s deposit of Rs.41,372.00 along with earnest money of Rs.6,500.00 was not at all sufficient and she was rightly asked to pay the remaining amount with interest till 11.11.1998. 11. Learned counsel for the respondents claimed that order dated 10.04.2012 passed by the Board clearly showed tentative price of M.I.G. House No.181 as Rs. 4,81,644.00 as on 28.02.1995 and hence up to April, 2012 the value plus interest would come to Rs.16,71,348.81. In the said circumstances before execution of lease deed in her favour, the entire amount has to be paid by the petitioner. 12. 4,81,644.00 as on 28.02.1995 and hence up to April, 2012 the value plus interest would come to Rs.16,71,348.81. In the said circumstances before execution of lease deed in her favour, the entire amount has to be paid by the petitioner. 12. Learned counsel for the respondents argued that the dispute raised in this writ petition was only with respect to price as to whether the calculation of the authorities was correct and for that purpose the Board had specifically constituted a Price Committee in terms of order of the High Court dated 20.10.1995 passed in C.W.J.C. No.47 of 1994 and C.W.J.C. No.2724 of 1994. Hence, he further argued that the claim of petitioner was not maintainable before this court and it may be referred to the Price Committee. 13. Considering the averments made by learned counsel for the parties as well as the materials on record it becomes quite apparent that the petitioner was homeless widow and in response to the advertisement she applied in the year 1986 for allotment of M.I.G. House and after adopting all the due procedures of law she was allotted double storied M.I.G. House No.232 at Lohiya Nagar under widow quota on 15.02.1991 on the basis of resolution passed by the Board and signed by all its members. In this connection Regulation No.10 (2) (1) of the Bihar State Housing Board Regulation, 1983 clearly showed that two per cent allotment was to be made to helpless widows on the basis of compassion. 14. On the other hand, it is also apparent that Haribansh Mishra, who applied for military quota was allotted single storied M.I.G. House No.181 at Hanuman Nagar, but he raised claims for a house in Lohiya Nagar and for reasons best known to them the authorities of the Board supported him which gave rise to several litigations. However, when all the concerned cases were taken up together by a Division Bench of this court on 12.08.1988, the writ petitioner Most. However, when all the concerned cases were taken up together by a Division Bench of this court on 12.08.1988, the writ petitioner Most. Sawari Devi being pressurized from all the quarters gave her consent for exchange of her double storied M.I.G. House No.232 at Lohiya Nagar with single storied M.I.G. House No.181 at Hanuman Nagar and accordingly the Division Bench of this court ordered on 12.08.1988 that the petitioner, who was a widow and in whose favour the State Government had passed order for allotment of a house in the middle income group shall be allotted by the Board M.I.G. House No.181 at Hanuman Nagar for which the Board shall complete all necessary formalities within two weeks from that day and realise therefore price prevailing in the year 1988. Similarly for Haribansh Mishra also the said order provided that M.I.G. House No.232 of Lohiya Nagar be allotted to him and the Board was directed to adjust towards price of the said house only that amount of money which was payable by any allottee/settlee of the year 1979 and claim no more than such amount of money from Haribansh Mishra. 15. The said matter again cropped up in M.J.C. No.763 of 1988 which was disposed of on 28.03.1989 and after considering the implications of the parties not acting in terms of the aforesaid order dated 12.08.1988 and the reasoned order having not been delivered, all the matters connected with the house were directed to be heard before final judgment was delivered by the Court and hence order dated 12.08.1988 was recalled. However, subsequently the entire matter along with all the pending petitions were heard together by another Division Bench of this court and were decided by a common order dated 12.01.1994 and the Housing Board was directed to allot M.I.G. House No.181 of Hanuman Nagar Colony in favour of Most. Sawari Devi (writ petitioner) and to allot M.I.G. House No.232 of Lohiya Nagar to Haribansh Mishra and all the petitions were disposed of with the aforesaid directions. 16. Sawari Devi (writ petitioner) and to allot M.I.G. House No.232 of Lohiya Nagar to Haribansh Mishra and all the petitions were disposed of with the aforesaid directions. 16. It is quite surprising to note that order dated 12.08.1988 was complied by the Board immediately thereafter so far the allotment of M.I.G. House No.232 of Lohiya Nagar in favour of Haribansh Mishra was concerned and he was put in possession and money was demanded at the rate prevalent in the year 1979 when he had applied for the said house, but the said order dated 12.08.1988 was not complied immediately thereafter by the authorities of the Board with respect to allotment of M.I.G. House No.181 at Hanuman Nagar in favour of the petitioner Most. Sawari Devi. Although the said order of allotment of M.I.G. House No.181 at Hanuman Nagar to Most. Sawari Devi was also affirmed by subsequent order dated 28.03.1989 passed by a Division Bench of this court in M.J.C. No.763 of 1988, but in spite of that, the order of allotment of M.I.G. House No.181 at Hanuman Nagar was issued much subsequently on 10.03.1995 and possession was given to the petitioner in the year 1999. There is no explanation by the authorities for such undue delay specially in case of a homeless widow, who according to the provisions of the Act and the Regulations required compassion. 17. On the other hand the military personnel, who did not deserve as much compassion as the homeless widow, was given benefit of making payments for the house at the rate prevalent in the year 1979 when he had filed application for the said allotment, but for the petitioner the Board had a different standard asking her to pay as per the value of the house prevalent in the year 1995 when the subsequent allotment was made in her favour and that too after keeping the homeless widow waiting for several long years. 18. The authorities completely forgot that the petitioner had applied for M.I.G. House in the year 1988 and she was allotted a better house, namely double storied M.I.G. House No.232 at Lohiya Nagar vide resolution of the Board in its meeting dated 11.01.1991 and the tentative cost asked by the authorities concerned at the relevant time was fully deposited by the petitioner along with the earnest money. Hence the case of petitioner has been seriously jeopardized by the act of the authorities. Firstly, that a double storied house bearing M.I.G. House No.232 of Lohiya Nagar allotted to her had been taken away from her and in its place a single storied M.I.G. House No.181 of Hanuman Nagar had been allotted to her in the year 1995 and secondly that a much higher price with interest is being demanded from her at the rate prevalent in 1999 although she was applicant of 1988. 19. The said circumstances clearly show that the demand of the authorities is absolutely illegal, arbitrary and perverse and they are unnecessarily harassing the petitioner without any valid reasons. Since the petitioner had applied in the year 1988 and she had paid the entire tentative cost with earnest money as calculated by the authorities themselves in the year 1991, the authorities cannot ask the petitioner to pay any amount as per the rate of any subsequent period. In addition to that the petitioner has been kept deprived of a house till 1999 when possession of M.I.G. House No.181 at Hanuman Nagar was given to her. 20. In the said circumstances, this writ petition is allowed and the impugned demand notices dated 06.09.2007, 10.04.2012 and 11.04.2012 along with statement of cost dated 11.11.1998 issued by the Board and its subsequent action in that regard are hereby quashed with a direction to the respondent-authorities to calculate the price of M.I.G. House No.181 at Hanuman Nagar at the rate/price prevailing in the year 1988 and compare it with Rs.41,372.00 as value of the house and Rs.6,500.00 as earnest money which had already been paid by the petitioner in the year 1991 and if any amount is found to be excess payment by the petitioner, it should be refunded to her within three months from the date of receipt/production of a copy of this order. However, if as per the said calculation any further amount is required to be paid by the petitioner, the petitioner shall be asked to pay the same without any interest in easy monthly instalment. Furthermore, the deed of lease in favour of petitioner with respect to M.I.G. House No.181 of Hanuman Nagar, if not executed by the Board till date, it must be executed after observing all formalities within three months from the date of receipt/production of a copy of this order.