Sita Devi Vs. Bihar State Housing Board and ors. - Court Judgment

Excerpt:
civil - allotment of flat - interest on amount deposited - whether to be given on the entire amount deposited - sub-rule 36(3) of the bihar state housing board (management and disposal of housing estates) regulation, 1983 - appellant applied for allotment of a flat constructed by respondent-board - flats ere not constructed within the stipulated time period - application for refund of amount - respondent-board purported to have cancelled the allotment made in favour of appellant - writ before high court - during pendency of writ cheque purported to have been issued in favour of the appellant, wherein 20 per cent of the amount deposited by appellant was deducted - single judge of the high court, under a misconception that prayer of appellant in writ petition was confined to interest on 20 per cent of the amount which had been withdrawn by respondent-board, a direction was made that the respondent must pay interest at the rate of 6 per cent from the date of the application made by appellant seeking refund - division bench of the high court in an intra court appeal preferred by appellant, refused to interfere with the order - held, action of the respondent-board in canceling the appointment after a long time when appellant had asked for refund was unjustified - at this stage respondent-board could not take recourse to the terms and conditions of allotment - appellant entitled to interest at the rate allowed by the single judge on the entire amount subject to the adjustment of the amount already paid at the rate fixed by the high court - appeal allowed - - these institutions/organization are not to act like shylock but have to act in favour of the public in a welfare state.1. leave granted.2. the short question which arises for consideration in this appeal which arises from the judgment and order passed by the division bench of the high court dated 15.4.2005 in l.p.a. no. 301/2005 is as to whether the appellant herein is entitled to interest on the entire amount deposited by her with the respondent-board for allotment of a flat.3. the respondent is a corporation constituted under the bihar state housing board act. it constructs houses for allotment thereof to various categories of people. appellant filed an application for allotment of a flat constructed by the respondent-board at bahadurpur. patna under the 'self financing scheme' in the year 1994. he deposited a sum of rs. 17,000/- on 13.1.1994 and the balance sum of rs. 1,54,876/- on 31.3.1994.4. the flats were not constructed within the stipulated period. they were not constructed within a reasonable period even thereafter. the respondent filed an application for refund of the amount on 29.10.1996. the respondent-board purported to have cancelled the allotment made in favour of the appellant on 30.1.1997. appellant filed a writ petition before the high court in may, 2000 as his representation of the appellant to the effect that the entire amount should be paid back to her had not been acceded to. in the said writ petition the following prayers were made :i) for direction upon the respondents to refund petitioner's entire amount which she had deposited on 31.3.1994 for purchase of flat. since the physical possession of the flat is not being given to her.ii) petitioner also prove for the direction to the respondents to pay interest at the rate of 18% per annum on her entire amount to be calculated from 31.3.1994 to till the actual date of payment.iii) the petitioner also prays for compensation of rs. 50,000/- for harassing the petitioner.during pendency of the said writ petition a cheque for a sum of rs. 1,37,341/- was purported to have been issued by the respondent-board on 11.4.2001. as the said cheque did not reach the hands of the appellant and as the fact of issuance of cheque was disclosed only in the counter affidavit, the cheque was revalidated on the request of the appellant.5. admittedly, 20% of the amount deposited by the appellant was deducted. the learned single judge of the high court having regard to the facts and circumstances of this case opined as follows:.the letter annexure-4 under which the petitioner had claimed refund was not an absolute offer. it was a conditional offer that the total amount be refunded to her. if the respondents were not ready and willing refund the entire amount and wanted to cut 20% of the deposit, the lapses being on their side, they were obliged to inform the petitioner that 100% refund cannot be made. it also appears from their conduct that finding an opportunity in their favour, they pounced upon it and readily agreed to refund 80% amount so that they can pocket the balance. if the flat was not complete in the year 1996 and is yet not complete, it would too much to say that a person if out of sheer frustration says that he/she does not want a flat then too the respondents would be entitled to a cut. paragraph 8 of annexure 2 says that some delay would be condonable but some delay does not mean notorious delay. some delay should only mean a reasonable delay. if the possession was to be delivered to the petitioner in 1994, or immediately thereafter, then the respondents cannot say that they would not deliver the possession in the year 1996 and would not complete the construction even up to 2004 and would is still be entitled to deduct the amount of 20%. the conduct of the respondent is not fair. it perilously touched the boundaries of dishonesty. a public authority has to act fairly and in favour of the public. these institutions/organization are not to act like shylock but have to act in favour of the public in a welfare state.it is held that the respondents are not entitled to deduct the said 20% amount. let the said 20% amount be refunded to the petitioner within a period of three months from today with 6% interest from the date of the application made by the petitioner seeking refund. if the amount is not refunded to the petitioner within a period of three months then from the date of the petitioner's entitlement/application, the respondents would be obliged to pay interest at the rate of 15% on the delayed payment.however, under a misconception that the prayer of the appellant in the said writ petition was confined to interest on 20% of the amount which had been withdrawn by the respondent-board, a direction was made that the respondent must pay interest at the rate of 6% from the date of the application made by the appellant seeking refund.6. the division bench of the high court in an intra court appeal preferred by the appellant, however, refused to interfere with the said order. it is not disputed that the respondent-board accepted the judgment of the learned single judge, it acted thereupon. the findings arrived at by the learned single judge are not thus open to question by it. respondents are bound thereby as the same had attained finality. the short question, therefore, which arises for consideration is as to whether the appellant was entitled to interest on the entire amount deposited by her or on 20% thereof. it is neither in doubt or in dispute that the appellant had asked for refund of the amount only on 29.10.1996.7. when the appellant had asked for refund of the said amount, the respondent-board could have done so. it could have refused to accede to the said prayer and could have cancelled the allotment. it did not do so immediately. it purported to have passed an order to the said effect only on. 30.1.1997. that part of the action on the part of respondent-board has been found to be unjustified and was set aside by the learned single judge of the high court.8. we, therefore, keeping in view the facts and circumstances of this case are of the opinion that at this stage the respondent-board cannot take recourse to the terms and conditions of allotment or of clause (3) of sub-rule 36 of the bihar state housing board (management and disposal of housing estates) regulation, 1983 in the instant ease.for the reasons aforesaid, we are also of the view that the appellant is entitled to interest at the rate allowed by the learned single judge on the entire amount subject to the adjustment of the amount already paid at the rate fixed by the high court on 27.10.1995. the appeal is allowed.