Madhya Pradesh High Court
Pradeep Kumar Singh vs M.P.Housing Board Bhopal on 25 February, 2013
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 11077 of 2005
Shri Pradip Kumar Singh
- V/s -
MP Housing Board, Bhopal and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Kishore Shrivastava, Senior Advocate, with
Shri Aditya Adhikari, counsel for the petitioner.
Shri Mahendra Pateriya, counsel for respondents 1 to 3.
None for respondent No.4, even though served through
Publication in the Newspaper.
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Whether approved for reporting: Yes / No.
ORDER
25/02/2013 Challenging the allotment of the House in question, being House No. HIG-D-108, a duplex house, in the Katra Hills Residential Scheme on self-financing basis, by the MP Housing Board, Bhopal, this writ petition was filed.
2- Originally when the writ petition was filed on 19.9.2005, it was the case of the petitioner that respondent No.1 - MP Housing Board is a creation of statute and in the month of July, 2000, issued an advertisement for submission of application for allotment of a HIG (Delux) independent duplex house under the Katra Hills Residential Housing Scheme, Bhopal. Petitioner submitted his application for registration vide Annexure P/1 on 12.7.2000, and was allotted registration No.00329, vide Annexure P/2, on 15.1.2002. A house bearing No.108, HIG Deluxe under the Katra Hills Housing Scheme was Writ Petition No : 11077 / 2005 2 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others allotted to the petitioner, in a lottery system of allotment and vide Annexure P/3, petitioner was informed that the price of the building has been fixed at ` 8.15 Lacs and he should make payment of installments starting from October 2000 in accordance to the time stipulated in Annexure P/4. The first deposit was to commence from 9.10.2000 - Annexures P/4 and P/5 are the communications in this regard. 3- It is the case of the petitioner that he applied for a loan and was granted a loan of `5,90,000/- by the Housing and Urban Development Corporation, New Delhi and a tripartite agreement between the petitioner, respondent No.1 Board and HUDCO was entered into vide Annexure P/6; and, HUDCO deposited an amount of ` 5.90 Lacs in the account of the Housing Board. Thereafter, the petitioner arranged for deposit of the remaining final amount in a lumpsum payment of ` 3.5 Lacs, and the entire cost of the house was deposited by him, by 10.7.2001 - Annexure P/10. Documents evidencing these are filed by the petitioner. However, after receiving the entire amount, the proceedings were completed and in support thereof Annexure P/11 has been filed by the petitioner. However, when allotment was made to the petitioner and possession was not handed over, petitioner is said to have made various correspondences with the respondents, but when the allotment was not made and he was informed that his allotment has been cancelled, he filed this writ petition. It was his case that he has deposited the entire amount as required by the respondents and as the allotment is not being made, he filed the writ petition in the year 2005. 4- On 10.10.2006, respondents filed a reply and in paragraph 2 of the reply admitted that as on 30.7.2001, petitioner had deposited a total sum of ` 8,12,250/-. The cost of the house determined tentatively was ` 8.15 under the self-financing scheme and ` 8.50 Lacs under the hire purchase scheme. It was stated by the respondents in the return that finally the cost of the house was determined, but as the petitioner failed to deposit the entire amount, he was informed vide letter-dated 27.6.2003 - Annexure R/1 to deposit the balance of ` 6,47,402/-. Thereafter, reminders were sent to him on 5.8.2004, 4.12.2004, 7.3.2005 Writ Petition No : 11077 / 2005 3 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others and 18.3.2005, vide Annexures R/2, R/3, R/4 and R/5, and when he did not deposit the amount it was stated that a notice was published in the daily newspaper - Nav Bharat, on 12.5.2005 - vide Annexure R/6, requiring the petitioner to deposit the amount. However, when the petitioner did not deposit the amount, vide Annexure R/7 on 2.6.2005, notice for cancellation was issued and finally it is stated in the return that the allotment was granted to respondent No.4.
5- When these averments were made in the reply, an application for amendment was filed and vide amendment which was allowed on 25.6.2008, challenge is made to order-dated 7.6.2005, allotting the house in question in favour of respondent No.4, and petitioner has indicated that the entire amount was deposited by the petitioner, the demand made for payment of `6,47,402/- was not correct, therefore, when this notice - Annexure R/1 was received petitioner submitted his objection and reply, he was informed that his allotment would be regularized, but when nothing was done, he approached this Court. Pointing out that neither the final price fixation of ` 8.90 Lacs was communicated to the petitioner nor were the communications - Annexures R/2, R/3, R/4 and R/5, ever made to the petitioner and by contending that in an illegal manner - Annexure R/1 was issued to the petitioner, which did not reflect the correct position, petitioner amended the writ petition and filed an additional affidavit contending that the respondents have now come out with a false case.
6- When the matter was heard by this Court on 24.4.2012, this Court found that there is no material with regard to the calculation made as contained in Annexure R/1. How the account of the petitioner has been settled, what has been done with regard to the deposit admitted by the respondents and how the communications - Annexures R/2, R/3, R/4 and R/5 were served on the petitioner. Vide order-dated 24.4.2012, respondents were directed to file an affidavit indicating these facts. Even though an affidavit was filed and it was tried to be indicated in the said affidavit that the documents - Annexures R/2, R/3 and R/4 were served on the petitioner by sending it through the dispatch register Writ Petition No : 11077 / 2005 4 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others and affidavit of one Shri N.D. Ahirwar, Executive Engineer, was filed on 1.12.2013 alongwith Annexures R/1 to R/5, but nothing was indicated with regard to how and in what manner the arrears of ` 6,47,402/- was worked out. On the contrary, petitioner filed his own affidavit on 17.1.2013 and pointed out that the documents Annexures R/4, R/5 etc are not the notices issued to him. There is no postal receipt or acknowledgement and he refuted issuance of these letters. 7- The matter was again heard at length by this Court and thereafter on 5.2.2013, the following orders was passed by this Court:
" Having heard learned counsel for the parties at length, the following directions are issued.
The Commissioner of the respondent Housing Board Corporation shall file an affidavit indicating the following factors:-
(1) As to when and after following of the procedure prescribed under which provision, the price for the house in question is fixed. All the particulars of the Board with regard to fixation of the price should be filed along with affidavit of the Commissioner.
(2) The reasons for giving the benefit restoring the allotment in favour of Shri Shailesh Pathak, Shri Shyam Bihari and Smt. Sunita Gupta shall also be explained. The Commissioner should also explain as to how the HIG House No.108 is allotted to respondent No.4 Shri Chaturvedi.
That apart, the entire statement of account pertaining to calculation of dues payable to the petitioner arrived at vide Annexure R/1 should be indicated to this Court along with approval of the competent authority for cancellation of the allotment.
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Writ Petition No : 11077 / 2005 5 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others Let an affidavit in this regard be filed by 12th February, 2013.
List the matter for further hearing on 19th February, 2013. It is made clear that the affidavit shall be filed by Commissioner of the Board and of no other Officer."
8- In pursuance to the same, an affidavit has been filed today and in the said affidavit it is only indicated that even though the price of the house was to be fixed by the MP Housing Board, but vide Circular dated 10.5.2000 filed today alongwith the affidavit of Shri Mukesh Chand Gupta, Commissioner, it is said that the power has been delegated to the Additional Housing Commissioner, who further delegated it to the Deputy Housing Commissioner and for the house in question the price was fixed at `8,90,000/- and in support thereof resolution and orders - Annexures R/4 and R/5 have been filed.
9- As far as allotment to Shri Shailesh Pathak, Shri Shyam Bihari and Smt. Sunita Gupta are concerned, certain clarifications are given, but with regard to statement of account and the deposit made by the petitioner, nothing is stated that it is only said that it would take some time to calculate the amount. As far as the explanation with regard to allotment of the House - HIG No.108 to respondent No.4 Shri Chaturvedi, the explanation given is that he was allotted after paper publication was made on 2.6.2005 and allotment of the petitioner was cancelled on 3.6.2005.
10- Shri Kishore Shrivastava, learned Senior Advocate, refuted the aforesaid and argued that when the entire amount of ` 8,15,000/- was deposited by the petitioner, nothing was indicated to the petitioner about deposit of any further amount fixed at ` 8,90,000/-. As far as cancellation of allotment of the petitioner is concerned, it is stated that no notice or orders were communicated to the petitioner and learned Senior Advocate points out that now in the affidavit filed by the Commissioner it is stated that petitioner's allotment was cancelled and allotment was made in favour of respondent No.4 - Shri Nikilesh Writ Petition No : 11077 / 2005 6 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others Chaturvedi, on 2.6.2005 and 3.6.2005 respectively, vide Annexures R/7 and R/8.
11- Learned Senior Advocate invites my attention to the application filed by respondent No.4 for allotment of the house, which was presented alongwith the affidavit of the petitioner - Annexure P/25, and submits that respondent No.4 had submitted the application bearing No.000446 on 11.1.2005. It is argued that if the allotment itself was cancelled only on 3.6.2005 and the advertisement was issued on 2.6.2005, then it is not known as to how with regard to House HIG-108, respondent No.4 could submit the application on 11.1.2005 vide Annexure P/25. It is stated that respondents have come out with a false claim and the explanation and clarification sought for by this Court on 5.2.2013 has not been complied and an evasive reply only to frustrate the claim of the petitioner, is submitted. Learned Senior Advocate submits that three contradictory affidavits have been filed and in an arbitrary manner the impugned action is taken, therefore, the entire action of the respondents be quashed and benefit granted to the petitioner. 12- Shri Mahendra Pateriya, learned counsel for respondents 1 to 3, tried to justify the action and pointed out that the petitioner cannot have any grievance as he failed to abide by the conditions stipulated. 13- I have heard learned counsel for the parties at length and perused the records.
14- In the advertisement issued as is evident from Annexures P/2 and P/3, the price of the house under the self-financing scheme was fixed at ` 8.15 Lacs. It is clear from the documents filed by the petitioner and from the averments made by the respondents in paragraph 2 of their return and much prior to 3.7.2001, the entire amount of ` 8.15 Lacs was paid by the petitioner. However, it seems that the price fixed at ` 8.15 Lacs was a tentative price and vide circular -dated 4.7.2000 - Annexure R/5, the price was fixed at ` 8.90 Lacs. Even if for a moment it is assumed to be correct, then the only difference that should be paid by the petitioner would be the difference after deducting the amount of ` 8.15 Lacs, already paid by the petitioner, which would come to about Writ Petition No : 11077 / 2005 7 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others `75,000/- only. If `75,000/- was the only difference amount to be paid by the petitioner, it is not known as to how and under what circumstances the claim was made from the petitioner vide Annexure R/1, for payment of more than ` 6,47,402/-. Be it as it may be, the question arises as to whether any demand was made to the petitioner and whether the petitioner has committed any default in the matter? 15- As per the tripartite agreement entered into between the petitioner, the respondent Board and HUDCO, a sum of ` 5,90,000/- was paid to respondent No.1 and thereafter the documents filed by the petitioner go to show that upto 9.7.2001 he had deposited more than `8,12,250/-. Thereafter, vide Annexure P/10 onwards, on 10.7.2001 upto 21.2.2004, he had been demanding allocation of the house and grant of possession. The documents filed by the respondents does not show that any communication was made to the petitioner asking him to deposit any further amount or to indicate to him that if the amount is not deposited, his allotment will be cancelled. Vide Annexure P/15, even though he was asked to show-cause as to why his allotment should not be cancelled, but on 26.7.2005 vide Annexure P/16, he was informed that a mistake has been committed and the allotment will not be cancelled and he would be intimated about the possession very soon. It is surprising that inspite of the same the allotment is cancelled. However, it is the case of the respondents that before cancellation of the allotment vide Annexure R/1, on 27.6.2003, petitioner was directed to deposit the remaining amount of ` 6,47,402/- within 20 days and thereafter communications - Annexures R/2 to R/5 were made to him. When this Court by interim orders passed on 24.4.2012 and again on 5.2.2013 directed the respondents to clarify the break-up of the amount arrived at ` 6,47,402/-, and the manner in which the communications - Annexures R/2 to R/5 were served on the petitioner, even though two affidavits have been filed : one by Shri N.D. Ahirwar, Executive Engineer on 1.12.2012; and, another today by Shri Mukesh Chand Gupta, Commissioner, in both these affidavits the break-up of the statement of accounts has not been indicated. On the contrary, in the affidavit Writ Petition No : 11077 / 2005 8 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others submitted by Shri Mukesh Chand Gupta, it is only stated that it would take some time to calculate and give the details.
16- As far as issuance of notice to the petitioner vide Annexures R/2 to R/5 and intimation about cancellation is concerned, in the affidavit filed by Shri N.D. Ahirwar, on 1.12.2012: Document No.1, Document No.2, Document No.3 and Document No.4 are filed to say that they are the extracts of the dispatch register, showing dispatch alongwith postal receipts, Annexure R-4/Document No.4. Document No.1 is a notice dated 5.8.2004, issued in name of the petitioner. It is neither a postal receipt nor extract of the dispatch register and it is not known as to how and in what manner this notice was sent. Similarly, Document No.2 is also a notice dated 4.12.2004, but in this there is no postal receipt nor is it extract of the dispatch register except for indicating the dispatch number and the date, there is no proof with regard to issuance of this notice. If these notices were sent by registered post acknowledgement due, postal receipt and acknowledgement of the same should have been filed, which is not done. Similar is the position with Document No.3, notice dated 7.3.2005. That being so, Document Nos. 1, 2 and 3 filed alongwith the affidavit of Shri N.D. Ahirwar is neither the postal receipt nor acknowledgement, nor the extract of the dispatch register, as said in the affidavit. They are only copies of documents without any proof of their issuance or service. Even though in the affidavit, Document No.4 is said to be postal receipt, but Document No.4 is only a letter date of which is not clear, and it only says that if the petitioner does not comply with the notice earlier issued, his allotment will be cancelled.
17- It is, therefore, surprising that the respondents have come out with a case in the reply that after the price of the house was fixed, petitioner was issued with notice to deposit the amount and when he did not deposit, his allotment has been cancelled. When the petitioner disputed issuance of the notice or their receipt, respondents were directed to file affidavit and indicate as to how and in what manner the notices indicated in the return i.e.... Annexures R/2 to R/5 were served. Writ Petition No : 11077 / 2005 9 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others Even though affidavit of an officer Shri N.D. Ahirwar is filed, but as indicated hereinabove, in his affidavit, issuance of these notices to the petitioner and their service are not proved. On the contrary, it is seen that without notice to the petitioner and without hearing him, the allotment is cancelled and surprisingly the allotment is made in the name of respondent No.4, based on an application submitted by him on 11.2.2005 i.e.... even before the allotment of the petitioner is cancelled on 3.6.2005. It is surprising to note that if the allotment of the petitioner was cancelled on 3.6.2005, how and under what circumstances respondent No.4 Shri Chaturvedi came to know months before on 11.2.2005 that the house is vacant, it is available for allotment and he is said to have deposited a sum of ` 1,15,000/- as booking advance for the same house.
18- It is when these discrepancies were taken note of that on 5.2.2013 that the Commissioner was directed to file his affidavit and now from the affidavit filed by Shri Mukesh Chand Gupta, Commissioner nothing is clear. Except for clarifying that the power is delegated to the Deputy Housing Commissioner to fix the price of the present house, which was fixed at ` 8,90,000/-, and some clarification is given in his affidavit with regard to restoration of allotment in the name of Shri Shailesh Pathak, Shri Shyam Bihari and Smt. Sunita Gupta, nothing is brought to the notice of this Court as to how and under what circumstances the allotment of the petitioner was cancelled even though he has deposited the entire amount demanded of ` 8.15 Lacs. How allotment is made to Shri Chaturvedi even before cancelling the allotment of the petitioner and how the calculation of ` 6,47,402/- as indicated in Annexure R/1 is arrived at, are not indicated. All these goes to show that in an illegal and arbitrary manner respondents have taken action, which cannot be upheld by this Court.
19- The affidavits filed by the respondents are evasive in nature, they do not indicate as to how and why the allotment of the petitioner is cancelled. Respondents have miserably failed to prove before this Court that the petitioner failed to deposit the amount as demanded by them in Writ Petition No : 11077 / 2005 10 Shri Pradip Kumar Singh Vs. MP Housing Board, Bhopal and others pursuance to the notice issued. Even issuance of notices and demand made are not established and, therefore, it is a case where the petitioner deposited the entire amount of ` 8.15 Lacs as originally demanded, he was willing to deposit any further amount, but only to deprive him of his rightful claim and to somehow grant benefit to respondent No.4, the allotment in question is cancelled in an arbitrary and illegal manner and, therefore, this Court has no other option but to allow this petition 20- Accordingly, the impugned order making allotment in favour of respondent No.4 and cancelling the allotment of the petitioner, as impugned in this writ petition dated 7.6.2005 - Annexure P/24; order- dated 3.6.2005 - Annexure P/15; and, order-dated 23.8.2005 - Annexure P/20, are quashed. The allotment of the house bearing No.HIG-D-108, Duplex situated in Katra Hills Residential Scheme is restored in favour of the petitioner and possession of the same be restored to the petitioner. 21- However, if the cost of the constructed house has been fixed at ` 8,90,000/-, a notice be issued to the petitioner and on his depositing the remaining amount i.e.... after deducting the amount already paid by him, the allotment in favour of the petitioner be restored and for the same, if required, respondent No.4 be evicted from the premises in question in accordance with law.
22- With the aforesaid, the writ petition stands allowed and disposed of.
( RAJENDRA MENON ) JUDGE Aks/-