Patna High CourtMrs. Neena Girish vs Bihar State Housing Board And Ors. on 1 November, 1999Equivalent citations: 2000(1)BLJR209Author:Aftab AlamBench:Aftab AlamJUDGMENT
 

 Aftab Alam, J.1. The petitioner challenges the demand made by the Bihar State Hosing Board ('the Board' hereinafter) for payment of a sum of Rs. 3,19,244.00 as outstanding dues as on 28-2-1999 before it would hand over to her the possession of Middle Income Group (M.I.G.) House No. 237, situate at Lohia Nagar, Kankarbagh Colony, Patna. The Board's demands are contained in the letters, copies of which are at Annexures-6, 7 and 9.2. On should have thought that after the bench decision of this Court in Anil Kumar Sinha v. Bihar State Housing Board and Ors. 1998 (3) PLJR 437, the long ordeal of the petitioner would be over but the Board seems to persist in its unreasonable stand and the matter is, therefore, once again before this Court. In Anil Kumar Sinha (supra), the heirs and legal representatives (the present petitioner being one of them) of the original allottee (Anil Kumar Sinha) were able to secure the eviction of a person whose occupation of the house was held to be unauthorised and illegal by this Court. They also obtained a direction to the Board to make over the house to them. Pursuant to the direction, the person found to be in the unauthorised occupation of the house was duly evicted but the heirs and legal representatives of the original allottee instead of being given the possession of the house got the impugned demand from the Board and the payment of the sum specified in the demand letters as outstanding dues was made a pre-condition for handing over the possession of the house and its final transfer in their favour.3. When this case was taken up on earlier occasions, it prima facie appeared to this Court that having regard to the facts and circumstances of the case the Board's demand, apart from being illegal was highly improper and unreasonable. Accordingly, while adjourning the case to enable Mr. Sharwan Kumar, Counsel appearing for the Board to obtain instructions in the matter, this Court asked the Counsel to advise the Board to reconsider its decision to make the demand from the heirs of the original allottee for an enhanced price of the house, Mr. Sharwan Kumar, however, informed the Court that the Board was unwilling to change its decision. The Court then proceeded to hear the Counsel for the parties in order to decide the dispute on merits.4. The earlier decision in Anil Kumar Sinha (supra), was given by a Division Bench, of which I happened to be a member. The detailed facts and circumstances of the case were fully discussed in that judgment which was also affirmed by the Supreme Court. I, therefore, refrain here from narrating those facts and circumstances all over again. All the relevant facts and circumstances of the case can be found in the earlier decision in Anil Kumar Sinha (supra).5. Suffice it to note here that M.I.G. House No. 237 was allotted to Anil Kumar Sinha, the deceased father of the present petitioner, by letter No. 4449, dated 2-5-1975 issued by the Manager, Land Allotment-cum-Dy. Secretary in the Board. On his making all the payments as advised in the allotment letter, a hire purchase agreement in respect of the house was executed by the Board in his favour which was dully registered on 26-10-1978. On his making payments as required till that stage in terms of the allotment letter and the hire purchase agreement, the Manager Estate-cum-Dy. Secretary in the Board by his letter, dated 27-10-1978 asked the Executive Engineer of the Board to hand over possession of the house to the allottee.6. It is, however, an admitted position that notwithstanding the issuance of the letter following the execution of the hire purchase agreement the Board was unable to give possession of the house to the allottee because it was not in a vacant state. On the Board's own showing (as noticed in paragraph 6 of the decision in Anil Kumar Sinha) the house was forcibly occupied on 12-2-1979 at 9 a.m. by one Dhirendra Kumar (Respondent No. 5 in the case of Anil Kumar Sinha).7. It was also admitted in an affidavit filed on behalf of the Board in Anil Kumar Sinha that the allotment made in favour of the original allottee was proper and valid and till that stage, he had made payments of all the demands made by the Board, in accordance with the rules.8. The Board then initiated proceedings underSection 59(1)(b)of the Housing Board Act for the eviction of Dhirendra Kumar from the house. In that proceeding, the Executive Magistrate and later in appeal the Minister, Housing Department declined to pass an order of eviction against Dhirendra Kumar. And the Board then came to this Court in C.W.J.C. No. 6078/85 seeking his eviction from the house. '9. Later on the original allottee also filed a writ petition being C.W.J.C. No. 6617/88 challenging, on his own, the orders passed by the Executive Magistrate and the Minister, Housing Department in the proceeding underSection 59(l)(b)of the Act initiated by the Board for the eviction of Dhirendra Kumar and seeking a direction to the Board to give him vacant possession of the house.10. On being admitted the two writ petitions (one filed by the Board and the other by the original allottee) were directed to be heard together.11. While these two writ petitions were pending for hearing before this Court, the Board received a so-called direction from the State Government, asking it to allot the house in favour of Dhirendra Kumar. On that basis, the Board in its meeting held on 11-7-1991 purported to allot the house to Dhirendra Kumar and an allotment letter was issued to him on 28-2-1992.12. Thus, satisfied that it had legitimised the occupation of the house by Dhirendra Kumar, the Board allowed its writ petition being, C.W.J.C. No. 6078 of 1985, filed in this Court for his eviction from the house, to be dismissed as infructuous.13. By the time, the other writ petition being C.W.J.C. No. 6617/88 came to the taken up for hearing, the original allottee, who was the petitioner in that case, was dead. After his death his heirs filed a petition seeking permission to pursue the reliefs and their prayer for substitution being allowed by the Court the case was finally prosecuted by them. It was allowed by judgment and order dated 2-9-1998. In paragraph 26 of the decision, it was found and held as follows:26. These are the detailed facts of the case and having recorded them I find that the facts only lead to one inference that respondent No. 5 entered into the house by breaking the law and continue to occupy it in an unlawful manner ; further, that the unlawful and unauthorised occupation of the house by respondent No. 5 has caused and continue to cause blatant violation of the rights of the lawful allottee Sinha and his successors in interest, the present petitioner.14. In paragraph 32 of the judgment, it was further fund and held as follows:32. For the reasons discussed above, I have no hesitation in finding that the resolution taken by the Board in its meeting held on 11-7-1991 to cancel the allotment of M.I.G. House No. 237 made earlier in favour of Sinha and to allot that house to respondent No. 5 was wholly illegal and unsustainable. The resolution dated 11-7-1991 is accordingly quashed following which all the subsequent actions taken by the Board fall to the ground... .15. Thus, on the basis of the concluded findings of fact made in the earlier Division Bench decision between the parties and on the basis of the discussions made above, the position that emerges can be stated as follows:(i) Till the execution of the hire purchase agreement in favour of the original allottee and further till 12-2-1979 when the house was forcibly occupied by Dhirendra Kumar, the original allottee had made all payments and had discharged all his liabilities in terms of the allotment order and the hire purchase agreement (see paragraph 4 of the decision in Anil Kumar Sinha and the letter, dated 27-10-1978 asking the Executive Engineer to hand over the possession of the house to the original allottee)(ii) The hire purchase agreement was aborted not due to any action on the part of the allottee but due to the failure of the Board to hand over vacant possession of the house to the allottee on account of its inability to prevent it from being forcibly occupied by an unauthorised person. The occupation of that person was held to be unlawful and causing violation of the rights of the lawful allottee (See paragraph 26 of the decision in Anil Kumar Sinha)(iii) Later, the Board sought to legitimise the occupation of Dhirendra Kumar by cancelling the allotment earlier made in favour of Anil Kumar Sinha and allotting the house to Dhirendra Kumar by its resolution dated 11-7-1991 which was quashed by this Court as being wholly illegal (See paragraph 32 of the decision in Anil Kumar Sinha).16. In the aforesaid background, the Board now makes a demand against the, heirs of the original allottee for payment of Rs, 3,19,244.00 as dues outstanding on 28-2-1999. As regards the nature of demand, Mr. Sharwan Kumar stated that the aforesaid amount was the interest occurred on the unpaid instalments as stipulated in the hire purchase agreement for the period from 26-1-1978 (the date of execution of the agreement) to 28-2-1999.17. I absolutely fail to see any justification for the Board's demand. In the first part of this period from 12-2-1979 (when the house was forcibly occupied by an unauthorised person) to 11-7-1991, the Board allowed the hire purchase agreement to be subverted by its failure to deliver vacant possession of the house to its lawful allottee after getting the unauthorised occupant evicted from the house. And from 11-7-1991 the Board further compounded its breach of the agreement by seeking to legitimise the occupation of Dhirendra Kumar by allotting the house in his favour. In other words, what earlier amounted to failure to discharge its statutory duty was compounded into a definitely illegal action. And by making the demand for interest for all this period, the Board now wishes to make the original allottee/his heirs pay for the illegalities committed by the Board. In my view, nothing can be more gross and unreasonable.18. The Board in its reckoning does not at all take into consideration the long suffering and the great material loss sustained by the original allottee and his heirs and legal successors. On the basis of the allotment order and the hire purchase agreement executed in his favour the original allottee was lawfully entitled to come in possession of the house in 1978-79. He was deprived from the user and enjoyment of the house for the past 20 years for reasons directly attributable to the Board. The loss suffered by the allottee and his heirs will far outweigh the loss of interest suffered by the Board. Moreover, the loss suffered by the Board is due to its own illegal actions whereas the allottee and his heirs suffered their loss not due to any fault on their part but due to the acts of omission and commission by the Board. The Board does not seem to realise that in this case, the boot is on the other leg. And in case the heirs of the original allottee made a demand for damages and compensation against the Board in a properly constituted action, it may not find it very easy to resist their claim.19. For the reasons discussed above, I consider the Board's demand for interest for all this period as wholly illegal and unsustainable in law. In the facts and circumstances of the case, I am of the considered view that the rights and liabilities of the parties must be deemed to have been frozen on 12-2-1979 when according to the Board's own case, the house was forcibly occupied by an unauthorised person. The liability of the petitioner must, therefore, be reckoned as existing on that date and the Board cannot be allowed to demand anything more from the petitioner.20. It is accordingly directed that the Board will only demand from the petitioner interest as accruing till 12-2-1979 and on the petitioner's making payment of the same it will give her vacant possession of the house and execute the transfer deed in her favour without any undue delay. It is expected that all the necessary formalities for executing the transfer deed will be completed within two months from today.21. I am further of the view that it is a fit case for imposing cost against the Board for wasting the Court's time and being responsible of a wholly unnecessary and avoidable litigation. The Board is accordingly directed to pay Rs. 5,000/- by way of cost to the Bihar State Legal Services Authority. A receipt showing payment of cost must be filed within two weeks from today.22. In the result, this writ petition is allowed, the impugned demand as contained in Annexures 6, 7 and 9 are quashed and the Board is required to comply with the directions as contained hereinabove.