Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 548 (ORI)

Pramod Kumar Panda v. State of Orissa

2017-05-09

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : Vineet Saran, J. Heard Sri S. Udgata, learned counsel for the petitioner and Sri D. Nayak, learned counsel for the opposite party. 2. Pursuant to an application filed by the father of the petitioner for allotment of an LIG House, he was allotted House No. L-1729 under Dumduma Housing Scheme, by the Orissa State Housing Board (for short ‘the Board’). Intimation of the same was given to the father of the petitioner vide communication dated 21.8.1987 (Annexure-1). The father of the petitioner made the initial deposit as required under the allotment order and thereafter continued to pay the regular instalments and had also agreed to the enhancement of sale price from Rs.20,000/- to Rs.30,000/-. The registered agreement was executed on 18.8.1989 between the Secretary of the Board and father of the petitioner, according to which the father of the petitioner was required to pay the balance amount of Rs.22,500/- in 52 quarterly instalments. 3. There is no dispute about the fact that father of the petitioner continued to pay the regular quarterly instalments as per the agreement dated 18.8.1989. The father of the petitioner was thereafter required to take physical possession of the house by 15.11.1989, failing which he was to pay watch and ward charges @ Rs. 200/- per month. However, since the construction of the house was not complete, the father of the petitioner was not given possession on the schedule date, which was in November, 1989. The opposite party-Board, however, continued to levy watch and ward charges. Then in the year 1993, the father of the petitioner was intimated that he should pay Rs. 12,500/- towards watch and ward charges and take over the physical possession of the house on 30.8.1993. The house was still not complete, as according to the petitioner, there were no railings in the windows, no doors in the toilets, flooring and plastering of the house were in damaged condition, and there was no water and electricity connection and thus, the possession of the house could not be taken. Thereafter, on 10.2.1995 (Annexure-8), the opposite party-Board passed the impugned order cancelling the allotment made in favour of father of the petitioner, on the ground of non-payment of watch and ward charges. Challenging the same, this writ petition has been filed by the petitioner, who has become the allottee after the death of his father. 4. Thereafter, on 10.2.1995 (Annexure-8), the opposite party-Board passed the impugned order cancelling the allotment made in favour of father of the petitioner, on the ground of non-payment of watch and ward charges. Challenging the same, this writ petition has been filed by the petitioner, who has become the allottee after the death of his father. 4. We have heard learned counsel for the parties and perused the record. 5. Though time had been granted in 1995 for filing of counter affidavit and even a Misc. Case No. 4230 of 1995 was filed by the opposite party-Board on 14.7.1995 seeking six weeks time to file counter affidavit, yet no counter affidavit has been filed, even though more than two decades has passed. On 24.4.2017, the matter was adjourned on the request of the learned counsel for the opposite party so as to enable him to obtain instruction. Even then, no counter affidavit has been filed. As such, the averments made in the writ petition remain uncontroverted. 6. It is a matter of record that registered agreement had been executed between the Board and the father of the petitioner on 18.8.1989. Though letter was issued by the Board to the father of the petitioner in 1989 for taking over possession of the house, but the same was not complete and ready for possession. The very fact that another letter was issued on 7.8.1993 requiring the father of the petitioner to take over the physical possession, would mean that the physical possession was not handed over to the father of the petitioner till that date. The averments made in the writ petition to the effect that the house was incomplete have not been controverted. As such, the question of handing over the physical possession of the house could not have been there as the house was not habitable, as besides the construction not being complete, there was no water and electricity connection provided. 7. The contention of the learned counsel for the petitioner is that Regulations of the Board do not provide for cancellation of the allotment for non-payment of watch and ward charges. 7. The contention of the learned counsel for the petitioner is that Regulations of the Board do not provide for cancellation of the allotment for non-payment of watch and ward charges. The opposite party has not controverted the fact that the father of the petitioner was regularly paying the instalments due, which would also be clear from the cancellation order dated 10.2.1995, wherein only mention of the payment of watch and ward charges has been made and not for any default in payment of instalments for the price of the house. There was no default regarding payment of any instalment as on the date of the cancellation order. 8. In the absence of there being any provision for payment of watch and ward charges, and also in view of the fact that possession of the house had not been given to the father of the petitioner as per the schedule date, because the house was not complete in all respects for handing over possession, we are of the opinion that the levy of watch and ward charges cannot be justified in law, and consequently, cancellation of the allotment of LIG House bearing No. L-1729 under Dumduma Housing Scheme of the opposite party-Board cannot be justified in law. 9. Accordingly, the impugned order dated 10.2.1995 is quashed and the demand raised by order dated 7.8.1993 for payment of watch and ward charges is held to be illegal. 10. The petitioner shall be handed over the physical possession of the said house (L-1729) within two months from the date of filing of certified copy of this order before opposite party no.2-Chairman, Orissa State Housing Board. It is however made clear that in case any instalment for the payment of price of the house in question is still due, the same shall be paid by the petitioner within six weeks of the possession being handed over and such demand being made from him. 11. The writ petition stands allowed. No order as to cost.