Jharkhand High Court
Amal Kumar Sinha vs Jharkhand State Housing Board on 23 August, 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5722 of 2006
Amal Kumar Sinha ... ... ... Petitioner
Versus
1. Jharkhand State Housing Board, through its
Managing Director, Ranchi
2. Executive Engineer, Jharkhand State Housing Board, Ranchi
3. Revenue Officer, Jharkhand State Housing Board ... Respondents
CORAM: HON'BLE MRS. JUSTICE POONAM SRIVASTAV
For the Petitioner : Mr. A.K. Das, Advocate
For the Housing Board : Mrs. I. Sen Choudhary, Advocate
09/23.08.2011Heard respective counsel for the parties.
Counter and rejoinder affidavits are exchanged between the parties. The writ petition is decided finally at the stage of admission itself.
The instant writ petition is preferred challenging the order dated 27.07.2006 (Annexure7 to the writ petition) passed by Managing Director, Jharkhand State Housing Board, rejecting the petitioner's representation in protest to the demand dated 10.06.2006, vide Annexure5.
The facts of the case are that the petitioner applied for allotment of land and made an initial deposit of Rs. 22,390/. Subsequent thereto, a Hire Purchase Agreement was executed between the Housing Board and the petitioner on 14.08.1991 (Annexure 2 to the writ petition). The petitioner had made an initial deposit of Rs. 22,390/ on 12.08.1991 as per the terms of the agreement. Stipulation between the parties was that the value of land was approximately Rs. 83,966/. However, it could be subjected to certain increase. The petitioner was liable to make additional payment of interest @ 1% per month in case of default of payment of installments. The remaining value of the consideration was to be paid in 60 equal installments of Rs. 1414/ per month. The petitioner was liable to make a payment of Rs. 58,766/ on the date of execution of the agreement, out of which Rs. 25,390/ was already paid before. Subsequent to the execution of the agreement, the petitioner made payment of the installments at intervals. The last deposit was made on 30.08.1996. A request was made at the behest of the petitioner to the Executive Engineer to furnish the details of dues against him to enable him to clear all the dues. The Revenue Officer, vide letter No. 1653/8280 dated 13.08.2005 informed the petitioner that outstanding amount against him as on 30.09.2005 is to a tune of Rs. 1,25,487/. The petitioner approached the respondent and offered to pay the entire dues, he was then informed that since a delay in deposit of the installment in the month of November, the total due accrued was Rs, 1,28,856/. The said amount was deposited on 17.11.2005, inclusive of the interest for the period from 30.06.2005 till the date the final deposit was made i.e. on 17.11.2005. Thereafter, the petitioner made a request for issuance of a No Objection Certificate and transfer of the land in his favour. The Executive Engineer, vide letter dated 08.02.2006 directed the Revenue Officer to do the needful for transfer of the land in favour of the petition. Surprisingly, instead of issuing a No Objection Certificate or transfer the land in favour of the petitioner, a further demand of Rs. 1,62,809/ was made and the petitioner was directed to make the payment latest by 30.06.2006. The petitioner protested the aforesaid demand, vide Annexure 6, dated 16.06.2006 which was rejected by means of an order dated 27.07.2006 (Annexure 7 to the writ petition which is impugned).
Grievance of the petitioner is that since he was required to deposit an amount of Rs. 1,25,487/ by means of a letter dated 13.08.2005, by 30.09.2005. He had made a deposit late by approximately 1 and 1/2 months i.e. on 17.11.2005, he was directed to deposit Rs. 1,28,856/, how could the amount escalate to an additional Rs. 1,62,809/. The amount deposited on 17.11.2005 was inclusive of Rs. 3,000/ which was interest for the period 1 and 1/2 month @ 16%.
Reliance has been placed on a number of decisions of this Court in the case of Sahdeo Mistry & Anr. Vs. Jharkhand State Housing Board, Ranchi & Ors. [2003 (3) JLJR 306]. This Court held that the demand by the Housing Board for executing the final deed of conveyance merely because some installments were delayed and, therefore, an exorbitant demand made by the Board, was quashed. It was held that the allottee cannot be saddled with such exorbitant demand by capitalizing the amount not paid on time. This decision was upheld in the L.P.A., which was filed by the Jharkhand State Housing Board reported in [2004 (2) JLJR 441]. Certain observations regarding malafide of the Housing Board were, however, quashed.
The next decision relied by the learned counsel is Manju Singh Vs. The Bihar State Housing Board & Ors., reported in [2001 (1) PLJR 144]. The Court followed the decision of the Division Bench in another case, Citizen Cause Vs. Bihar State Housing Board, reported in [(1992) 1 BLJR 367]. These decisions were taking notice of the fact that an exorbitant escalation of cost was depreciated after lapse of almost 17 years and 15 years of delivery of possession.
Counsel appearing on behalf of the Housing Board has tried to support the order passed by the Managing Director, stating therein that there were certain delay in depositing the installments and, therefore, according to the terms and conditions of the agreement, the interest leviable for the delay of deposit was also calculated while deciding the petitioner's representation and, therefore, the order dated 27.07.2006 is fully justified. The next objection raised is that an appeal should have been preferred before the Housing Board and not the writ petition, therefore, it is submitted that the instant writ petition is liable to be dismissed on the ground of alternative remedy i.e. additional remedy regarding the existence of Arbitration Agreement.
After hearing counsel for the parties at length and going through the record, I am of the considered view that the appeal was maintainable before the Housing Board of which admittedly, the Managing Director was also a member. The impugned order was passed by the Managing Director himself, therefore, in my view, the existence of alternative remedy by way of appeal was not an efficacious remedy. It is also noted under the agreement that the sole Arbitrator, as agreed between the parties, is the Housing Secretary. Looking into the position that the petitioner is a retired person and has constructed the house from the savings of his income while he was in service. He can ill afford anymore to incur the additional expense of remedy of Arbitration proceeding and this again will frustrate the entire purpose of purchase of plot from the Housing Board, which is a body meant for such persons, who could illafford huge houses or plots. The principle on which the Housing Board functions is of "no profit".
In the facts and circumstances, I am of the considered view that the argument on behalf of the Housing Board regarding existence of alternative remedy is not appropriate for rejecting the writ petition at this stage. The writ petition was filed in the year 2006. Counter and rejoinder affidavits are exchanged and at a stage when the writ petition is being heard finally, the petitioner cannot be relegated to the realm of alternative remedy.
So far the additional demand of Rs. 1,62,809/ by 30.06.2006 or Rs. 1,64,407/ by 31.07.2006, was made for the first time in the impugned order when the petitioner made a representation and the demand was made for issuance of 'no dues certificate' as well for executing the deed of transfer in favour of the petitioner. The amount mentioned in the impugned order has been calculated @ compound interest for whatever the dues were on the date when the installment was deposited. The petitioner was not made aware or any notice was given prior to 27.07.2006 and, therefore, it is evidently clear that the action of the respondent by making an exorbitant demand cannot be accepted at this late stage. Evidently, this demand was made for the first time when the petitioner approached for no dues certificate and for execution of a deed of transfer. The respondent adopted an arm twisting methodology. The act of the respondent is evidently questionable since the entire dues were paid along with the additional interest even for a delayed payment of last installment payable on 30.09.2005, but since it was paid on 18.11.2005, an interest of Rs. 3,000/ levied by the Housing Board was duly deposited. The escalated amount of Rs. 1,62,809/ is neither explained by the respondent save that it is a compound interest which can hardly be accepted by the Court. There was no stipulation of this kind of demand and, therefore, I am of the opinion that the impugned letter of demand of Rs. 1,62,809/ is liable to be quashed.
Accordingly, the impugned demand by means of the letter dated 27.07.2006 (Annexure 7 to the writ petition) is hereby quashed. The Housing Board is directed that the deed of transfer shall be executed within a period of three months from the date a certified copy of this order is produced before him.
With the aforesaid observation/direction, this writ petition stands disposed of.
(Poonam Srivastav, J.) Manish