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2024 DIGILAW 1385 (CAL)

Rabindra Nath Datta v. State of West Bengal

2024-08-05

PARTHA SARATHI SEN

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JUDGMENT : Partha Sarathi Sen, J. 1. Parties are represented through their learned advocates. 2. By filing this writ petition under Article 226 of the Constitution of India, the writ petitioner has prayed for issuance of appropriate writ upon the respondent nos. 2 to 6/authorities to quash the decision for unlawful deduction from his salary as house building advance with a further prayer for issuance of writ of mandamus upon the aforesaid respondent nos. 2 to 6/authorities to restructure the mode of payment of loan of Rs. 84,749/- by treating the same as ‘house building loan’ as per the decision of the said authorities dated 10.08.1999 with a further direction upon the respondent nos. 2 to 6/authorities to refund the excess amount as has been withdrawn by them from the writ petitioner. 3. In course of his argument, learned advocate for the writ petitioner at the very outset draws attention of this Court to paragraph 2 of the writ petition. It is contended that the present writ petitioner was an employee under the respondent nos. 2 to 6/authorities more specifically, under the West Bengal House Board and in that capacity, he has been allotted with a HIG Flat in Birati Housing Estate on 27.04.1993 at a price of Rs. 2,15,636/-. It is further submitted that it was agreed by and between the vendor (the West Bengal Housing Board) and the purchaser (the writ petitioner) that out of total consideration of money of Rs. 2,15,636/-, Rs. 1,30,887/- would be treated as house building loan and the balance amount of Rs. 84,749/- was to be paid by the purchaser at an installment of Rs. 1,222/- per month for 13 years with effect from 01.03.1998. 4. In course of his submission, learned advocate for the writ petitioner draws attention of this Court to Page 18 of the affidavit- in-reply as affirmed by the petitioner on 27.09.2018. 84,749/- was to be paid by the purchaser at an installment of Rs. 1,222/- per month for 13 years with effect from 01.03.1998. 4. In course of his submission, learned advocate for the writ petitioner draws attention of this Court to Page 18 of the affidavit- in-reply as affirmed by the petitioner on 27.09.2018. It is submitted on behalf of the petitioner that subsequent to such purchase of the aforesaid flat, the West Bengal Housing Board by an order dated 10.08.1999, took the following decision: “The amount in excess of the price of the Board’s flat and the house building loan including repairs and addition and alteration admissible to a Boards employee under existing rules shall be sanctioned as house building loan to the Board’s employees for the purpose of purchase of Boards flats only, subject to determination of individual capacitynin repaying the excess loan.” 5. Drawing attention to Page 20 of the affidavit-in-reply, it is submitted on behalf of the petitioner that despite passing such order dated 10.08.1999, the writ petitioner was not granted the benefit of such order and on the contrary, the aforementioned balance amount of Rs. 84,749/- was not treated as ‘house building loan’ pursuant to the order dated 10.08.1999 and on the contrary, the respondent nos. 2 to 6/authorities treated the said amount as ‘unpaid loan’ and continued to charge penal interest as per market rate. 6. In course of his submission, learned advocate for the writ petitioner again draws attention of this Court to Page 20 of the affidavit-in-reply as affirmed on 27.09.2018. It is submitted that from the said document, it would reveal that pursuant to a prayer made by the writ petitioner, the Vice-Chairman of the respondent nos. 2 to 6/authorities, i.e., the West Bengal Housing Board took the following decision: “Had the said amount been sanctioned in 2002 Sri Dutta would have to pay interest @8.86% (Average) on the loan amount of Rs. 84749/-, instead he has to pay penal interest @16.5% against the said amount as the amount has not been sanctioned as loan and there is no adjustment against the balance price at the material time of 2002. The fact remains that he was not granted loan in the material time in 2002. The matter has further been examined in Accounts Section and their notes dt. 03-02-2011 is placed in file. The fact remains that he was not granted loan in the material time in 2002. The matter has further been examined in Accounts Section and their notes dt. 03-02-2011 is placed in file. To maintain equality of justice the following is perhaps the only way out to resolve the matter:- Present total dues may be calculated based on the notional sanction of the H.B.. Loan in 2002 and the said amount may be adjusted against unpaid amount of the flat. Then the amount to be so sanctioned towards H.B. Loan may be recovered from his monthly salary charging the present rate of interest of H.B.Loan. [Average rate of H.B.Loan interest is 8.86%. Amount due as on 01-03-2011 if H.B.Loan is sanctioned will be Rs. 273791/-] On approval, this may be placed before the Board for kind sanction of the amount as per proposal above. Sd/- 07.02.2011 Vice Chairman” 7. At this juncture, learned advocate for the writ petitioner draws attention of this Court to the affidavit-in-opposition as affirmed on 13.09.2018 as well as to another affidavit-in-opposition as affirmed on 28.08.2023. It is submitted that from the annexures to the said affidavit-in-oppositions, it would reveal that the respondent nos. 2 to 6/authorities have annexed calculation sheets regarding alleged unpaid amount wherefrom it is evident that the authorities have charged penal interest at the rate of 16.5 per cent without giving any adherence to their own decision dated 07.02.2011 as taken by the Vice Chairman of the West Bengal Housing Board. It is thus submitted that from the aforesaid document, it would reveal that the respondent nos. 2 to 6/authorities had not treated the balance amount of Rs. 84,749/- as house building loan pursuant to their own decision dated 10.08.1999 and 07.02.2011 and on the contrary, they have treated the same amount as usual unpaid loan and thus wrongly charged penal interest at the rate of 16.5 per cent which is not permissible in the eye of law and, therefore, the respondent nos. 2 to 6/authorities are duty bound to restructure the entire dues of the writ petitioner by holding the balance amount of Rs. 84,749/- as ‘house building loan’ and not as ‘usual loan’ and, therefore, the respondent nos. 2 to 6/authorities may be directed to refund the excess amount which has been deducted from the salary of the writ petitioner. 8. 2 to 6/authorities are duty bound to restructure the entire dues of the writ petitioner by holding the balance amount of Rs. 84,749/- as ‘house building loan’ and not as ‘usual loan’ and, therefore, the respondent nos. 2 to 6/authorities may be directed to refund the excess amount which has been deducted from the salary of the writ petitioner. 8. Per contra, learned advocate for the answering respondents i.e., the respondent nos. 2 to 6/authorities submits before this Court that the writ petitioner is bound by the Clauses of the deed of conveyance since on execution of the deed of conveyance in respect of the flat in question, the writ petitioner made him bound to abide by the terms and conditions of the recitals of the said deed of conveyance. It is further submitted that the calculation as made by the respondent nos. 2 to 6/authorities is perfectly justified and, therefore, the instant writ petition is liable to be rejected. 9. On perusal of the entire materials as placed before this Court and after hearing the learned advocates for the contending parties, it appears to this Court that the dispute between the writ petitioner and the respondent nos. 2 to 6/authorities centers around alleged non-payment of Rs. 84,749/- by the writ petitioner to the respondent nos. 2 to 6/authorities on account of balance consideration of money in respect of the flat in question. 10. Admittedly, in terms of the Clause of the deed of conveyance as executed in favour of the writ petitioner by the respondent nos. 2 to 6/authorities, the writ petitioner is duty bound to pay the balance amount of Rs. 84,749/- as and by way of installment at the rate of Rs. 1,222/- per month in 13 years with effect from 01.03.1998. It is undisputed that the writ petitioner has made default in payment. 11. In view of such, there cannot be any doubt that the respondent nos. 2 to 6/authorities are entitled to charge penal interest upon the writ petitioner. However, the situation has become different as reveals from the order no. It is undisputed that the writ petitioner has made default in payment. 11. In view of such, there cannot be any doubt that the respondent nos. 2 to 6/authorities are entitled to charge penal interest upon the writ petitioner. However, the situation has become different as reveals from the order no. 5566/1(ii) dated 10.08.1999 as issued by the Deputy Housing Commissioner and Secretary whereby and whereunder the West Bengal Housing Board had taken a decision for sanctioning the excess of the price of the board’s flat and the house building loan as house building loan to the board’s employees for the purpose of board’s flat only which has been already calculated supra in case of the writ petitioner. For some reason or other, such decision was not implemented in the case of the writ petitioner which is why he made a representation before the respondent authorities. 12. On consideration of his representation, the Vice Chairman of the West Bengal Housing Board by its order dated 07.02.2011 came to a finding that the writ petitioner was supposed to pay at the rate of 8.86 per cent on the loan amount of Rs. 84.749/- instead he has to pay penal interest at the rate of 16.5 per cent. Considering the plight of the writ petitioner, the Vice Chairman took decision that average rate of house building loan interest would be 8.86 per cent upon the amount of Rs. 84,749/- and he further held that the amount due from the writ petitioner as on 01.03.2011 as house building loan is sanctioned will be Rs. 2,73,791/-. 13. On perusal of the annexure of the affidavit-in-opposition as affirmed on 13.09.2018 and 28.08.2023, it reveals that the respondent nos. 2 to 6/authorities had charged penal interest at the 16.5 per cent without adhering to the decision of the Vice Chairman dated 07.02.2011. 14. Admittedly, in the last line of the order dated 07.02.2011 as passed by the Vice Chairman of the West Bengal Housing Board, the Vice Chairman has recorded that his decision be placed before the Board for kind sanction as proposed by him. No materials have been placed before this Court from the side of the West Bengal Housing Board to the effect that such decision of the Vice Chairman has not been sanctioned by the Board. 15. Such being the position, this Court finds that the respondent nos. No materials have been placed before this Court from the side of the West Bengal Housing Board to the effect that such decision of the Vice Chairman has not been sanctioned by the Board. 15. Such being the position, this Court finds that the respondent nos. 2 to 6/authorities have acted contrary of their own decision i.e., the decision as taken on 10.08.1999 and 07.02.2011 as discussed supra. 16. In view of such, the instant writ petition succeeds. This Court thus directs the respondent nos. 2 to 6/authorities to restructure the mode of payment of the unpaid amount of Rs. 84,749/- treating the same as house building loan pursuant to their own decision dated 10.08.1999 and 07.02.2011 with interest at the rate of 8.86 per cent and without insisting upon any penal interest at the rate of 16.5 per cent at least with effect from 10.08.1999. 17. The entire process of calculation as directed above is to be completed within a period of 60 days from the date of communication of this order and in the event, the respondent nos. 2 to 6/authorities find that any amount is due and payable to the writ petitioner, the same has to be refunded within a period of fortnight on completion of such calculation together with interest as per the prevailing rate of interest of nationalized bank on fixed deposit. 18. Accordingly, the instant writ petition being WPA 1752 of 2012 is disposed of along with all interim applications, if there be any. 19. All the parties are directed to act on the server copy of the order. 20. Urgent photostat certified copy of this order, if applied for be given to the parties, upon compliance of necessary formalities.