Jammu & Kashmir High Court
J&K Housing Board And Ors vs Sanjeev Kumar on 10 December, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPAOW No. 212 OF 2001 J&K Housing Board and ors Petitioners Sanjeev Kumar Respondent !Mr. N. A. Choudhary, Advocate ^Mrs. Surinder Kour, Sr. Advocate with, Mr. Rajiv Gorkha, Advocate. Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date: 10.12.2013 :J U D G M E N T :
M. M. Kumar, CJ
1. The instant appeal under clause 12 of the Letters Patent is directed against judgment and order dated 05.09.2001 rendered by the learned Single Judge of this Court, holding that the writ petitioner- respondent was entitled to possession of the plot subject to the condition that he would pay 50% of the tentative price within a period of 30 days, beginning from 10.10.2001 and the remaining 50% was to be paid in accordance with the terms and conditions as enumerated in para 3 of the objections which the writ petitioner was supposed to comply with. The whole payment was required to be made with interest at the rate of 12% from the date the offer was made to him. 2. Facts are not in dispute. The appellant-Housing Board invited applications for allotment of plots in the Housing Colony at Kathua. The application form along with the brochure contained the terms and conditions for such allotment. The writ petitioner- respondent applied under handicapped category. It is conceded as a fact that a sum of Rs. 2000/- as registration fee was required to be deposited along with the application form. On 01.10.1996 the writ petitioner-respondent deposited his application form along with the registration fee (Annexure C). As per the terms and conditions for the residential plot 50% of the cost of the plot was to be deposited within one month from the date of issuance of the letter of intent and the balance 50% was required to be paid within six months extendable to one year on payment of interest. After ascertaining the eligibility the letter of intent was issued to the writ petitioner- respondent on 13.06.1997. It was sent on the address given in the application form which is the same as given in the writ petition. The writ petitioner was asked to deposit a sum of Rs. 24750/- which was 50% tentative cost of the plot, within one month from the date of issuance of the letter of intent. The balance amount of premium was to be paid within a period of six months extendable to one year on payment of interest at the rate of 18% per annum. If the payment was not made within a period of one year then the allotment was to stand automatically cancelled and the amount deposited was to be forfeited. The writ petitioner-respondent failed to deposit the amount of premium for a period of three years. As a consequence the allotment made in his favour was cancelled on 01.12.2000. Feeling aggrieved the writ petitioner-respondent approached the Writ Court. 3. On the ground that no information was sent to the writ petitioner- respondent by the appellants, the learned Writ Court allowed the writ petition by observing as under:- A perusal of the stand taken by the respondents would indicate that nothing has been mentioned as to through what mode the communication dated 13.6.1997 was sent to the petitioner, whether through a messenger or through registered post, this has not been elaborated. Unless and until such a plea is taken it cannot be said that there was valid communication sent to the petitioner by the respondents. As such it is concluded that communication, on which reliance is being placed by the respondents, was not sent to the petitioner and he was unable to accept the offer made by the respondents. Learned counsel for the respondents submits that copy of letter is Annexure R1. A perusal of the file indicates that no such annexure R1 is part of the record. Therefore, the stand taken by the respondents cannot be accepted. This writ petition is accordingly allowed and the petitioner is held entitled to possession of the Plot. This is, however, subject to condition that petitioner would pay 50% of the tentative price within a period of thirty days beginning from 10.10.2001. The remaining amount would be paid in accordance with the terms and conditions, which the petitioner was supposed to comply with and which terms and conditions have been enumerated in para No. 3 of the reply. The petitioner would of course pay interest. The rate of interest would be 12% from the date offer was made to him till date.4. Mr. N. A. Choudhary, learned counsel for the appellant-Housing Board, has vehemently argued that the writ petitioner- respondent, with his own handwriting submitted an application for withdrawal of the registration fee, deposited through Bank Draft no. 0065906 of J&K Bank Kathua. The application is available on the original record. Even then the letter of intent was issued on 13.06.1997 at the address, Sanjeev Kumar S/O Shri Raghu Nath Vaid Ward No. 9 Parpiwand Kathua?. The letter was sent through ordinary course of business by post with a clear stipulation that he was allotted a residential plot measuring 30?X 55? at Housing Colony Kathua under LIG category. He was asked to deposit a sum of Rs. 24750/-. Mr. Choudhary has further submitted that the operation of impugned judgment was stayed vide order dated 20.11.2001, which order was made absolute on 01.11.2002 while admitting the instant appeal. 5. Mrs. Surinder Kour, learned senior counsel appearing for the respondent, however, has argued that the findings recorded by the learned Single Judge with regard to non-communication of information, cannot be doubted because in the pleadings there was no specific denial of the assertions made by the writ petitioner- respondent that no information with regard to the allotment was given to him. 6. We have heard the learned counsel for the parties and perused the original record as well as the paper book.
7. The appellants have taken a categorical stand in their objections filed before the Writ Court that after ascertaining the eligibility, the letter of intent was issued to the writ petitioner- respondent on 13.06.1997, which was sent to him on the address given by him in his application form. It is well settled that a communication sent in due course of business cannot be doubted for lack of authenticity particularly when no such complaint was made by the writ petitioner- respondent. It was known to him that he had applied for allotment of a plot on 01.10.1996 and thereafter has written a letter on 03.05.1997 for withdrawal of registration fee of Rs. 2000/-. In other words, the writ petitioner- respondent was quite conscious of the fact that the allotment could not be made till May, 1997. The appellant-Board yet issued the allotment letter dated 13.06.1997 on the address given by the writ petitioner- respondent, which is evident from the original record. We are, therefore, firmly of the view that the findings recorded by the learned Single Judge would not merit acceptance and are thus liable to be set aside. Moreover, the writ petitioner- respondent lost his entitlement by withdrawing the earnest amount of Rs. 2000/-. Accordingly, it is held that the writ petitioner- respondent failed to deposit the sum of Rs. 24750/- within the period of one month from the date of issuance of letter of intent. As a sequel to the default, his allotment was cancelled on 01.12.2000. Again the letter of cancellation was sent at the same address given by him in his application form, which was duly received by him. It appears to us that the writ petitioner- respondent did not have any financial capacity to deposit the amount which is amply proved by the fact that he requested for withdrawal of the registration fee of Rs. 2000/- on 03.05.1997. 8. In view of the above, the appeal is allowed. The impugned judgment rendered by the learned Single Judge is set aside. The order of cancellation dated 01.12.2000 is upheld. However, keeping in view the peculiar facts of the case we leave the parties to bear their own costs.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Jammu,
10.12.2013
Anil Raina, Secy