Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14469 of 2005 ====================================================== Ram Binay Prasad, son of Sri Ram Tawakya Singh, resident of Plot No.- 176, Road No.23, Srikrishna Nagar, Patna .... .... Petitioner/s 1. The Bihar State Housing Board through its Managing Director, Patna 2. The Estates Officer-cum-Manager, Bihar State Housing Board, Patna 3. Executive Engineer, Bihar State Housing Board, Division No.2, Versus Bahadurpur, Patna 4. Assistant Engineer, Sub- division No.2, Bihar State Housing Board, Bahadurpur, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kishore Kumar Thakur For the Respondent/s : Mr. Anshuman Singh Mr Pratik Kumar Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI ORAL ORDER 4 05-07-2013 After the petitioner’s hopes have been dashed of ever getting a piece and parcel of land in the State capital, which was promised by the Housing Board way back in the year 1991, the petitioner decided to approach the Court. In this case, only papers have been offered to the petitioner by way of allotment letter but physical possession of the so-called land allotted in his name was never granted. Initially, the petitioner wanted a direction upon the respondent Housing Board to do what was required to be done after the issuance of allotment letter and deposit of money but with subsequent development and non- performance on the promise by the Board, the petitioner would like to withdraw from such an offer by claiming refund of his money.
Legal Reasoning
Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 2/7 Petitioner had deposited a sum of Rs.58,000/- in the year 1995 itself. From time to time, further demand came to be made and even escalated price of the plot has been demanded from the petitioner in 60 equal monthly installments. Petitioner was willing to carry out his responsibility provided the physical possession of the land was given by the Housing Board. Promise was made and several visits were also made to the so-called plot of land but no delivery of possession ever happened in favour of the petitioner. Now, it is widely known that the area in which the Housing Board had acquired land for such allotment to allottees cannot be made over to the allottees because they have been encroached and lakhs of houses have come up in that area illegally. Prayer of the petitioner now has been molded due to continued demand being made by the Housing Board, saddled with component of interest at arbitrary rates, to rethink whether he should risk meeting the demand with no hope of getting even a square inch of land from the Housing Board. Since the petitioner is willing to now accept refund and not press for physical delivery of the land allotted to the petitioner, the Court is inclined to allow his prayer for such a refund. The Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 3/7 Board cannot be expected to continue making demand from an allottee without fulfilling their part of the obligation of delivery of the piece and parcel of land promised to the petitioner or any other allottees similarly placed. Probably, wise counsel prevailed upon the petitioner in the sense that he did not get allured by meeting further demands by Housing Board in absence of any hope of delivery of physical possession of land, which any way was not because of non payment but because of impossibility on the part of the Housing Board to deliver. In view of the above, the writ application is being allowed with a direction upon the Managing Director of the Housing Board, who shall ensure that the deposit of Rs.58,000/- made by the petitioner in the year 1995 is now refunded to him within a period of eight weeks from the date of production of a copy of this order. So far as the interest component is concerned, counsel for the petitioner has brought to the attention of this Court a judgment rendered in the case of Anant Jha v. State of Bihar, decided on 1st of March, 2012 and reported in 2012 (2) PLJR 568. Paragraphs 5 and 6 of the said decision are hereby reproduced as reliance has been placed on the said decision by Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 4/7 counsel for the petitioner : “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 Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 5/7 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.” Contrary to the same, counsel representing the Housing Board relies on a decision of the Hon’ble Supreme Court in the case of Sita Devi v. Bihar State Housing Board, reported in 2007 (1) PLJR 246 (SC). He has also produced copies of orders passed in the case of Housing Board v. Vijay Sharan, decided on 17th of February, 1997 by the Hon’ble Supreme Court and an order of a Division Bench of this Court in CWJC No.7335 of 1991, decided on 10.2.2010. The stand of the Housing Board and the decision, which have been cited, cannot be applied across the board because those decisions have been rendered no doubt by the highest court but those decisions have been rendered in different facts where the basic question in Sita Devi was not the question as to what will be the obligation of the Housing Board by way of payment of interest or refund. No doubt, in the Division Bench, the regulation has been quoted and 5 per cent per annum interest was allowed in the Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 6/7 case of Gur Bilas Singh but this Court can also not brush aside the decision of the Division Bench, which has been relied upon by the learned single Judge and the reasoning and rational given therein by him for granting 12 per cent interest with quarterly rest. The Court would like to lean in favour of the ratio by the learned single Judge. The conduct of the Housing Board has been totally unfair despite knowing fully that they will not be able to deliver an inch of land to the petitioner by way of physical possession, still they continued making further demands of deposit and claiming interest from the petitioner. Petitioner had deposited Rs.58,000/- way back in the year 1995. If he had not put this money with the Housing Board in hope of allotment of land then he would have surely earned a much better return if that trust and faith was reposed even in a nationalized bank. If the petitioner had bought a piece and parcel of land in the year 1995 in the State capital with the amount which he deposited with the Housing Board, it would have got him a handsome return by now. Be that as it may, majority of such applicants were low paid employees, who were looking for subsidized housing and allotment of land through a body, known as Housing Board but they have belied the promise of the majority and they cannot also take advantage and not carry out obligation of refund with Patna High Court CWJC No.14469 of 2005 (4) dt.05-07-2013 7/7 reasonable rate of interest. In totality, the Court relies on the decision rendered by the learned single Judge in the case of Anant Jha and disposes of the writ application with a direction that the refund of the petitioner would be made within eight weeks with payment of 12 per cent quarterly rest. Any failure to refund the money with the above direction within the time frame may also entitle the petitioner to claim may be 18 per cent interest instead of 12 per cent from the date it was due till the date it will be paid. Writ is allowed. (Ajay Kumar Tripathi, J) sk