Patna High Court
Smt. Urmila Devi vs Bihar State Housing Board And Ors on 16 April, 2019
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12698 of 2013
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Smt. Urmila Devi W/O Late Heera Lal, Resident Of Village- Sakunath Kala,
P.S.- Bihar Sharif, District- Nalanda
... ... Petitioner/s
Versus
1. Bihar State Housing Board, 8, Sardar Patel Marg, Patna through Managing
Director
2. Manager, Estate Officer, Bihar State Housing Board, 8, Sardar Patel Marg,
Patna
3. Executive Engineer, Bihar State Housing Board, Patna Division No. 1
4. Revenue Officer, Bihar State Housing Board, 8, Sardar Patel Marg, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Abhinay Raj
For the Respondent/s : Mr.Anshuman Singh
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date : 16-04-2019
Heard learned counsel for the petitioner and learned
counsel representing the Bihar State Housing Board.
2) Petitioner is aggrieved by the arbitrary determination
of fine for delay in construction. In the counter affidavit stand has
been taken that petitioner has caused delay of 18 years in
construction and as such the Housing Board is justified in charging
fine from the petitioner for causing delay in construction.
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3) Mr. Devendra Kumar Sinha, learned Senior Counsel,
appearing for the petitioner submits that husband of the petitioner
had participated in auction on 15.01.1985 and was declared
successful. Husband of the petitioner died on 11.11.1985. After the
death of her husband petitioner approached the Housing Board for
transfer of the plot in her name in place of her deceased husband.
Mr. Sinha submitted that vide Annexure-4 to the writ application
the Housing Board granted possession to the petitioner. On 25th
May, 1989 hire purchase agreement was executed. In terms of the
said hire purchase agreement petitioner was required to construct
the house within five years and in the event of failure to construct
the house the petitioner was liable to pay fine. Vide Annexure-4
petitioner was handed over possession on 28.05.1993. After the
possession was handed over to the petitioner she approached the
PRDA for sanction of map for construction. After the map was
sanctioned by the PRDA on 31.01.1994 the petitioner approached
the Estate Officer for approval of the map which was sanctioned
by PRDA the map was approved by the PRDA was sanctioned by
the Housing Board on 5.5.1004. On 22.11.2000 water connection
was sanctioned by the Executive Engineer of the Housing Board
and on 22.11.2000 agreement of sale was executed.
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4) Petitioner paid the entire price of the plot in question
as per the agreement. The only issue in the instant case is the
liability to pay fine by the petitioner for causing delay in
construction. With reference to Annexure-C learned counsel for
the Housing Board submits that construction was not complete
even up to 12.02.2013. In view of the above conflicting stand of
the parties the only issue required to be adjudicated in the instant
case is whether the petitioner is liable to pay fine on her failure to
complete the construction within the stipulated period and how
much delay petitioner has committed in completion of
construction?
5) Material available on record would manifest that
after the death of the husband name of the petitioner was entered
on 9.1.1987, Thereafter, agreement was made on 5.5.1989.
Learned counsel for Housing Board submits that five years period
would reckon from the date of agreement dated 5.5.1989.
However, prima facie the Court feel that the Board is justified if all
the formalities on the part of the Housing Board were completed
and possession of the plot was handed over to the petitioner. In
fact, possession was handed over only on 28.5.1993 and as such
there is absolutely no question of reckoning the period of five
years before handing over possession. So in any view of the matter
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reckoning of five years period will begin from the date of handing
over possession, i.e. on 28.5.1993. After the PRDA sanctioned the
plan on 21.1.1994 the Housing Board approved the plan on
5.9.1994. Water connection was given on 22.11.2000 which indicates that house was constructed that is why water connection was given to the petitioner. So the period of delay in construction shall be counted from 28.5.1993 to 22.11.2000. Any other date for counting the delay is wholly impermissible as prior to handing over possession counting of period of five years is unsustainable and once the water connection was extended the Housing Board is precluded from raising the issue of incomplete construction.
6) Under the aforesaid circumstances, the Court does not approve the claim of the Housing Board that there was delay of 18 years in making construction. The construction period in between 28.5.1993 to 22.11.2000 shall be the period of actual construction and shall be decisive for counting delay and the petitioner shall be liable to pay fine for the period beyond five years from 28.5.1993 to 22.11.2000 and as such the respondent- Board is directed to raise fresh demand for such fine within a period of 30 days from today. In case fresh demand is raised the petitioner has to pay fine for the period as indicated hereinabove within a further period of 30 days from the date of such demand.
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7) With the aforesaid, the writ application is allowed and disposed of.
mrl./- (Anil Kumar Upadhyay, J) AFR/NAFR NAFR CAV DATE N.A. Uploading Date 17.04.2019 Transmission Date