Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) NO. 976 OF 2013 An application under Articles 226 & 227 of the Constitution of India. Tara Prasana Satpathy : Petitioner -Versus- Deputy Chief Engineer, LIC of India, Cuttack and others : Opposite Parties For Petitioner For O.Ps. : Mr. J.K.Rath, Sr. Adv. Mr. B. Mohanty, Adv. Mr. D. Choudhury, Adv. Mr. B. Morana, Adv. Mr. S. Mohanty, Adv. : Mr. A.R.Dash, Adv. Mr. S.K.Mandal, Adv. Mr. B. Mohapatra, Adv. Mr. S.N. Sahoo, Adv. Mr. K.S. Sahu, Adv. J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of Hearing & Judgment : 01.09.2023 1. This Writ Petition involves the following prayer:- <It is, therefore, prayed that this Hon’ble Court may graciously be pleased to: (i) Issue a Rule Nisi in the nature of writ of mandamus and/or any other appropriate writ/writs, upon direction/directions order/orders, calling Page 1 of 15 // 2 // opposite parties to show cause as to why the impugned letter dt.6.9.2011 (Annexure-8) shall not be quashed and they shall not be directed to hand over possession of Flat No. 203 of Block No-2A at Policy at Holders’ Chandrasekharpur, Bhubaneswar on receiving the balance amount as per the Scheme. Scheme Housing (PH-II) And (ii) If the opposite parties fail to show cause and/or show insufficient and/or false cause, make the said Rule Nisi absolute; (iii) Pass any other appropriate order/orders, direction/directions and grant any other relief/reliefs to which the petitioner is entitled; (iv) Allow the writ application with costs; And for this act of kindness, the petitioner, as in duty bound shall ever pray.= 2.
Legal Reasoning
Factual background appears to be Petitioner showing interest in the purchase of house in a Flat following the brochure floated by the Authority concerned, vide Annexure-1 in the Jeevan Bima Nagar-Phase II, Chandrasekharpur, Bhubaneswar, became an applicant showing his interest in the purchase of the particular house. Application submitted on payment of Rs.1,000/-(Rupees One Thousand) towards application fee and along with registration fee of Rs.50,000/-(Rupees Fifty Thousand) in shape of Bank Draft. Following the completion on the application aspect lottery procedure was adopted and in the lottery drawn on 18.07.2010, the Petitioner was allotted Flat No. 203 at Block No.-A2 building under PHHS (Phase-II), Chandrasekharpur, Bhubaneswar. It is claimed that for the scheme providing opportunity of availing Page 2 of 15 // 3 // house loan, the Petitioner got engaged with LIC Housing Finance Ltd. for making available of the installment amount. It is on such request, the LIC Housing Finance Ltd. vide their letter dated 20.07.2010 asked the Petitioner to submit the documents for processing of the house loan. The Petitioner through pleading at Paragraph-6 claimed that he has provided all such documents and information. 3. While the matter stood thus, the Petitioner received a communication dated 08.12.2010 from Opposite Party No. 1 for immediate payment of a sum of Rs.13,63,000/-(Rupees Thirteen Lakh Sixty-Three Thousand). It is on receiving of this letter, the Petitioner again approached the Housing Finance Ltd. involved herein, claims that the LIC Housing Finance Ltd. also assured the Petitioner as communicated vide letter dated 08.12.2012. It is further claimed while the Petitioner remained in bona fide belief that the installment should be paid to Opposite Party No. 1 by the LIC Housing Finance Ltd. on 29.04.2011, the Petitioner received another letter from Opposite Party No. 1 directing to make the payment of a sum of Rs.13,63,000/-(Rupees Thirteen Lakh Sixty- Three Thousand). The Petitioner requested for grant of sometime and in the meantime kept him engaged with the financer herein. Page 3 of 15 // 4 // Opposite Party No. 1 in the meantime vide communication dated 06.09.2011 at Annexure-8 communicated the Petitioner on its decision cancelling the allotment in favour of the Petitioner and thereby also forfeiting the registration money of Rs.50,000/- (Rupees Fifty Thousand) deposited therein. Through further pleadings, the Petitioner claims immediately thereafter he approached Opposite Party No. 2 with a Bank Draft of Rs.4,00,000/-(Rupees Four Lakh), which he had already prepared before the letter of cancellation, he has received. Opposite Party No. 2 was requested for recalling of the cancellation order on receipt of down payment. In the meantime Opposite Party No. 1 refusing to accept the amount stated for the cancellation order is already issued and he has to forward the representation of the Petitioner to Mumbai Office for their decision. The Petitioner here enclosed his request dated 12.09.2011 vide Annexure-9. It is on the premises that there was no receipt of any further communication, the Petitioner again made a representation on 30.04.2012 to the Opposite Party No. 2 enclosing all the documents and prayed for withdrawal of the cancellation order. Even in the application, the Petitioner disclosed his intention showing his readiness to pay the balance amount in one installment within seven days with interest Page 4 of 15 // 5 // as per rules. This letter find place here at Annexure-10. In absence of any correspondence to the communication of the Petitioner vide Annexure-10, the Petitioner sent series of reminders on 20.06.2012 as well as 13.07.2012 find place at Annexure-11 Series. 4. While the matter stood thus after long gap, vide letter dated 28.07.2012, the Petitioner was communicated that the matter has to be dealt by the Opposite Party No. 1. Immediately after receiving such communication, the Petitioner contacted to Opposite Party No. 1 and Opposite Party No. 1, however, refused to consider the request of the Petitioner on the pretext that there is already reference of the matter to the Head Office at Mumbai and there is no communication from their end to Opposite Party No. 1. Consequently, the Petitioner entered into further correspondences dated 21.08.2012 and 13.09.2012 showing his intention to clear the whole outstanding of Rs.13,63,000/-(Rupees Thirteen Lakh Sixty- Three Thousand) along with reasonable additional amount, if any. All these correspondences find place at Annexure-13 Series. 5. It is in the above background, Mr. Rath, learned senior counsel appearing for the Petitioner in reiteration of the all above developments taking this Court to the Clause-13 of the scheme contended that there has been issuing of Annexure-3 with oblique Page 5 of 15 // 6 // motive directing Petitioner to pay sum of Rs.14,63,000/-(Rupees Fourteen Lakh Sixty-Three Thousand) and contended that the Opposite Parties having violated the terms of conditions.
Legal Reasoning
Cancellation of allotment is unsustainable. Mr. Rath, learned senior counsel also through the pleadings contended that since the Petitioner went on showing his intention to clear the entire outstanding even along with admissible interest and additional charges, if any, there is no question of not attending to the call of the Petitioner by the contesting Opposite Party No. 1 and/or Opposite Party No.2 herein. 6. Taking this Court to the interim direction in entertainment of the Writ Petition, Mr. Rath, learned senior counsel attempted to submit that for there is direction for status quo of the Flat No. 203 Block No.-2A, the property is still lying unsold and unused and there may not be any difficulty in settling the flat in favour of the Petitioner on receiving of the outstanding along with admissible interest further also with admissible charges, if any, following the provisions in this scheme. 7. In the above circumstance, Mr. Rath, learned senior counsel claims that allowing the Writ Petition by issuing the suitable direction against the Opposite Party No. 1 making way for the Page 6 of 15 // 7 // allotment of the house involved on the payment of the total sum as on date being intimated at least within a period of one month from the date of communication of the whole outstanding by the Opposite Party No. 1. 8. Mr. Rath, learned senior counsel, however, clears his client’s agreement to the extent of clearing the outstanding besides admissible interest as codified in the brochure. 9. Taking this Court to the counter averments of Opposite Parties herein through Paragraphs-4 to 11, Mr. Dash, learned counsel appearing for Opposite Party Nos. 1 and 2, however, contested the matter on the premises that the Petitioner suffers on his own count and lapses. It is also urged on behalf of the Opposite Parties that action on cancellation is in strict following of the conditions in the brochure involved herein. 10. Mr. Dash, learned counsel, further taking this Court through the counter averment contended that the Petitioner is getting financial assistance or not, it was all his own affair and the fact that the financer troubled the Petitioner for longtime cannot be a subject in consideration of the issue involved herein as Petitioner should also be abided by conditions in the brochure. Page 7 of 15 // 8 // 11. It is for huge outstanding while not disputing into the facts along with document and material brought by the Petitioner herein that in the meantime the parties engaged through Opposite Party No. 2 for its decision facilitating the cancellation of the allotment, vide Annexure-8 kept on pending from 2011 to 2013, however, for the Petitioner not availing all the opportunities provided by Opposite Party No. 1, Mr. Dash, learned counsel for the Petitioner contended that the Petitioner ought to suffer on the dismissal of the Writ Petition. 12. There is, however, no dispute that following the interim direction of this Court there has been maintenance of status quo in respect of the Flat No. 203 Block No.-2A involved herein as on date. 13. Considering the rival contentions of the Parties, this Court finds, there has been chain of events while finding there is no dispute in the bindingness of the conditions on the parties through the brochure, this Court finds, there remain no doubt that for the brochure conditions, the Petitioner for sometime got engaged with the financer, the financer also went on cooperating the Petitioner for quite a long stretch of time and there exist correspondences between the Petitioner and Opposite Party Nos.1 and 2. Page 8 of 15 // 9 // 14. It is finally finding the financer going out and declining to finance the Petitioner, the Petitioner finally was constrained to take up the wholesome burden by making a request to Opposite Party No. 1. in taking up the whole burden of outstanding as well as admissible interest following through the brochure herein. This Court finds there is material to establish parties entering into correspondences i.e. the Petitioner entering into correspondences with Opposite Party No. 1 as well as the Opposite Party No. 2. 15. Through the pleading, this Court again finds for finding no answer from Opposite Party No. 2 for long time, the Petitioner went on making further correspondences even reminders as appearing through Annexure-10 and 11 Series. In the meantime, it also appears through Annexure-12, a letter issued by the Executive Director Engineer to the Petitioner dated 28.07.2012 informing the Petitioner as follows: <It is to inform that as the matter has to be dealt as per prescribed procedure, you are requested to contact our Dy. Chief Engineer, LIC of India, Divisional Office, Cuttack.= 16. This is a certainly a development taking place on 28.07.2012 after the cancellation order at Annexure-8 issued on 06.09.2011. It is again after receiving of this letter when the Petitioner contacted Opposite Party No. 1, there is clear pleading Opposite Party No. 1 Page 9 of 15 // 10 // refused to keep the request of the Petitioner on the premises that his matter has already been referred to the Head Office, Mumbai and no communication was received by Opposite Party No. 1 at least till that date. 17. Looking to the counter averments in response to the averments in Paragraphs-13, 14 and 15, this Court finds through Paragraph-10, Opposite Party No. 1 simply submitted that pleadings therein all are narration of the Petitioner only after cancellation of the allotment. But here the development through letter dated 28.07.2012 cannot be lost sight of. The matter was definitely kept alive. Further also bringing by way of objection that the Petitioner did not respond to the repeated correspondences of the Opposite Party No. 1, vide letter dated 21.07.2010, 08.12.2010, 13.01.2011 and 29.04.2011 and claiming that the Petitioner is suffering for his own inaction. There is, however, no denial to the contentions of the Petitioner showing his readiness to deposit a sum of Rs.4,00,000/- (Rupees Four Lakh) and requesting to deposit balance amount in a short time frame. 18. It is at this stage of the document at Annexure-9 at Page-41 of the brief, this Court finds, undisputedly by making such correspondence the Petitioner had already disclosed on its Page 10 of 15 // 11 // preparedness of a demand draft No. 229691 dated 05.09.2011 amounting to Rs.4,00,000/-(Rupees Four Lakh) and even enclosing a Xerox copy of the same in the correspondence dated 12.09.2011. The entire reading of the counter affidavit, this Court nowhere finds any denial on the above aspect. In the above background and while also keeping in view that there is operation of a status quo order involving the disputed property passed by this Court in its order dated 21.01.2013 though directed to continue till 15.03.2013, for the submission of learned counsel for Opposite Parties and for further disclosure through the other orders passed by this Court, the interim order is still continuing, it means there is no dealing with this property otherwise in the meantime. 19. Keeping in view the facing of financial problem by the Petitioner, the Petitioner volunteered through several correspondences to undertake the whole responsibility even showing his intention with his readiness to deposit a sum of Rs.4,00,000/- (Rupees Four Lakh), vide demand draft No. 229691 dated 05.09.2011. Since 12.09.2011 undisputedly appearing preparation of a Bank Draft by the Petitioner at least a day prior to the issuing of the correspondences of Opposite Party No. 1, it at least established the Petitioner bona fidely pursuing the matter. In Page 11 of 15 // 12 // the cancellation of allotment on 06.09.2011, this Court here finds though the Petitioner did not remain abided by the terms and conditions in the brochure, however, for the backing out the financer, he could arrange a sum of Rs.4,00,000/- (Rupees Four Lakh). It is taking into account the brochure of condition at Clause- 13, this Court finds, the Clause-13 in the brochure appended herein reads as follows:- < 13. Mode of Payment: of cost Basic 2nd Instalment: 1st Instalment: 33% No interest shall be payable on the registration amount of Rs.50,000/- and amount shall be adjusted towards the cost of the flat for the allotees. Please note that all payments to be made in favour of LIC of India payable at Cuttack. (a) The Mode of payment of flats shall be as follows: Allottees should pay all instalments of payment within 45 days from the date of allotment along with consent/acceptance of terms and conditions the offered by LIC of India. (i) (Approximate) on allotment of flat. (ii) cost (Approximate) after completion of foundation and Plinth. (iii) 3rd Instalment: cost (Approximate) after completion of R.C.C. frame work. (iv) 4th Instalment: cost (Approximate) after completion of brickwork and finishing work. (v) amount service including connection charges, and Rs10,000/- only for maintenance for initial six months etc. at the time of taking possession. VAT/ Service Tax as applicable shall be extra. Additional stilt car parking if available after allotment to all successful flat owners shall be considered for 5th Instalment: of Basic of Basic of Basic escalation, electrical Balance price 20% 20% 20% Page 12 of 15 // 13 // total allotment separately on payment of Rs.1,50,000/- each. (Please refer Annexure-B for approximate amount of payment) (b) In respect of allottees who decline the allotment or fail to respond to the allotment within the prescribed registration charges of time, Rs.50,000/- will be forfeited. (c) In respect of allottees, who have accepted the allotment & paid the 1st installment but fails to pay balance subsequent amount within time schedule as mentioned above and as per intimation by LICI, the registration refunded without any interest. In case any payment is not paid within the stipulated period (with or without availing loan), the allotment is liable to be cancelled. However, the right to extend the period beyond the stipulated period on convincing grounds will be resting with LIC. In such cases, Simple interest @ 6% per annum for the extended period shall be charged additional.= This Court here finds there has been already a prescription of mode of payment. 20. Through Clause-6, this Court, however, finds while there is power with the Opposite Party No. 1 to extend the period beyond the stipulated period on convincing grounds, there is also provision made in case of deferred payment or delayed payment beyond the stipulated period, there shall be loading of simple interest @ 6% per annum for the extended period. 21. For the readiness of the Petitioner preparing a Bank Draft even prior to the date of cancellation, further for the correspondence of its own dated 28.07.2012 vide Annexure-12, this Court finds, there is no doubt that the case of the Petitioner was Page 13 of 15 // 14 // kept pending consideration at least till 28.07.2012. For the pleadings of the both parties, this Court finds there has been no further communication to the Petitioner after the assurance given to the Petitioner through Annexure-12, on the operation of the correspondence at Annexure-12 and in the information therein came to be existing. For the opinion of this Court, there is automatic non-operation of the cancellation letter issued by Opposite Party No. 1 dated 06.09.2011 even after Annexure-12 is issued, there is no further correspondence in the final communication of the decision of the Corporation even through their counter affidavit. 22. Looking to the nature of contest and role of Public Authority in providing house to the needy, there should not be commercial approach, but however, protecting the interest of Opposite Party No.1 by way of collection of the outstanding with appropriate interest. 23. In the circumstance and as there is no dealing with the property Flat No. 203 Block No.-A2 PHHS (Phase-II) in the operation of the status quo order herein, this Court to find good resolve on the issue while also keeping in view the interest shown Page 14 of 15 // 15 // by the Petitioner to take the additional load even there is no complete responsibility lying with the Petitioner. 24. This Court in disposal of the Writ Petition making the cancellation order in-operative directs the Opposite Party No. 1 to enter into calculation of the interest on the outstanding as on the date of cancellation letter dated 06.09.2011 @ 6% all through and communicate the Petitioner the outstanding plus interest as of September end at least within fifteen days hence. For there is long pendency of the litigation as a further outcome, this Court also observes the communication to the Petitioner should also provide at least two equal installments for payment of the whole outstanding within two months from the date of communication of the correspondence. 25. Following the outcome of this Writ Petition, the Writ Petition succeeds to the above extent. There is no order, however, as to cost. (Biswanath Rath) Judge Orissa High Court, Cuttack. The 1st September, 2023///Utkalika Nayak/// Junior Stenographer. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 04-Sep-2023 17:43:52 Page 15 of 15