IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7459 of 2003 1. MEERA PRASAD 2. Smt. Ranju Lal Both daughters of deceased Smt. Mini Verma 3. Kaushal Kumar 4. Mukesh Kumar both sons of deceased Smt. Mini Verma, R/o Road No. 22 Plot No. 125 P.O. G.P.O., P.S. Budha Colony, Shri Krishna Nagar, Patna-1. ....Petitioners. Versus 1. THE STATE OF BIHAR through the Secretary Building Construction and Housing Department (Foormerly known as Housing Department) Secretariat, Patna. 2.The Bihar State Housing Board, Manglas Road, through its Managing Director Patna. ....... Respondents with CWJC No.3857 of 2003 1. Alok Kumar Sinha 2. Ashok Kumar Sinha 3. Anuj Kumar Sinha 4. Anup Kumar Sinha 5. Atul Kumar Sinha, all sons of late Ram Kishore Prasad 6. Mrs. Abha Sahay w/o Sri Sachindra Nath Sahay 7. Mrs. Sobha Mandilwar W/o Sri Ajit Mandilwar 8. Mrs. Biha prasad w/o Shri Gopal Prasad 9. Mrs. Pratibha Sinha W/o Shri Rajesh Kumar Sinha 10. Mrs Rambha Prasad W/o Shri Anand Prasad 11. Nibha Prasad widow, 911 D/o late Ram Kishore Prasad having Permanent address of Road No. 23 Plot No. 175 Sri KRISHNA Nagar, P.S. Budha Colony, District Patna... petitioners Versus 1.THE BIHAR STATE HOUSING BOARD through its managing Director, Mangles Road, Patna .......Respondent. with CWJC No.440 of 2004 1. SRI KRISHNA NAGAR VIKASH SAMIT through its Secretary Sri Ram Krishna Prasad son of late Thakur Jagdish Prasad R/o Plot no. 104 Road No.21 Shri Krishna Nagar, P.S. Budha Colony, P.O. G.P.O. District Patna .... Petitioner Versus 1. THE STATE OF BIHAR through Secretary Urban and Housing Department, Government of Bihar, Patna 2. The Bihar State Housing Board, Manglas Road, Patna through its Managing Director .... Respondents. -------------- For the petitioners in CWJC No. 7459/03 & 440/04:Satyendra Krishna Prasad, Adv. For the petitioners In CWJC No. 3857/03 : Mr.Alok Kumar Sinha, Adv. For the respondent Bihar State Housing Board in all cases: Mr. Rajiv Nayan Singh, Adv. Mr. Prakash Shekhar Kumar, Adv. 2 For the state in CWJC No.440/2004: Indeshwari Prasad Mandal, A.C. to G.A. 7 For the state in CWJC No. 7459/03 and 3857/03 Mr. Anshuman Singh, A.C. to A.A. G.-I ------------- O R D E RS B.P. Verma, J Heard learned counsel for the petitioners in this batch of writ petitions and learned counsel appearing on behalf of respondent State as also learned counsel appearing on behalf of respondent Bihar State Housing Board. 2. The petitioners in C.W.J.C.No. 7459 of 2003 and C.W.J.C. No. 3857 of 2003 are legal heirs and representatives of the original allottees of the plots in question at the Housing Colony- Sri Krishna Nagar in the town of Patna. However, the petitioner in C.W.J.C. No. 440 of 2004 is a Society representing the interest of the alllottees, who are members of Shri Krishna Nagar Vikash Samiti. The petitioners are raising their grievances against the office order dated 24.10.2002 issued under the signature of the Secretary of the respondent Housing Board, annexed as annexure-1 in C.W.J.C. No. 7459 of 2003, whereby the decision of the respondent Bihar State Housing Board taken in its meeting dated 18.10.2002 granting approval for enhancement of price of the residential plots @ Rs. 4800/- per katha (1361 sqft) for different residential plots in the residential colony of Shri Krishna Nagar in the town and District of Patna has been communicated. The petitioners have also prayed for a mandamus directing the respondent Bihar State Housing Board to execute registered deed of lease in perpetuity/conveyance deed in favour of the allottees/petitioners as per the terms and conditions of 3 letter of allotment and/or agreement signed by the parties or alternatively as per the terms and conditions fixed by this Court. 3. It is common case of the parties that for execution of a housing scheme at Mohalla Shri Krishna Nagar in the town of Patna, Department of Housing, Government of Bihar, Patna, a Predecessor Body of the respondent Housing Board, acquired 65.26 acres of lands, out of which 8.72 acres was allotted to Postal Cooperative Society and remaining 56.54 acres of lands were utilized for execution of Shri Krishna Nagar Housing Colony. It is also the common case of the parties that in the year 1972 respondent Bihar State Housing Board was created by an ordinance and all the housing activities, which were being carried out by the Department of Housing, Government of Bihar, Patna ,stood transferred to the newly created respondent Housing Board, with all assets and liabilities. 4. It is the admitted case of the parties that in the year 1971-72, allotment of plots were made to different persons by the then Department of Housing and at that time tentative cost of the allotted plots were fixed. Father of the petitioners in C.W.J.C. No. 7459 of 2003 was allotted 2.058 katha of land by allotment letter dated 5.9.1971(Annexure-2) for a tentative costs of Rs. 4116/- as at that time cost of the land was @ Rs. 2000/- per katha only. Father of petitioners in C.W.J.C. No. 3857 of 2003 was allotted 1.983 katha of land by letter dated 3.2.1971 (Annexure-1 of that case) for total tentative price of Rs. 3966/- only. It is not disputed by the respondents that after issuance of allotment letters, the price of land was deposited by the aforesaid allottees, which was fixed by the 4 aforesaid allotment letters. The deed of agreement dated 31st day of July 1973 (Annexure-3 in C.W.J.C. No. 7459 of 2003) and deed of agreement dated 2.7.1974 (Annexure-A in C.W.J.C. No. 3857 of 2003) have been brought on record by the parties. Admittedly, possession over the lands allotted to the allottees were given by the respondent Housing Board. The petitioners claim to have constructed their residential houses over the allotted area of lands, after payment of the entire dues of the respondent Housing Board. However, it is claimed that despite payment of entire dues fixed by the order of allotment, the deed of lease in perpetuity/ deed of conveyance is not being executed by the Respondent Housing Board on the ground that subsequently the respondent Housing Board enhanced the price of the lands @ Rs. 4800/- per katha by an order dated 23rd July 1975 (Annexure-5) issued under the signature of the Chairman the Respondent Housing Board and interest is to be charged with effect from 1.4.1974 @ 9 % per annum. 5. Learned counsel appearing on behalf of the petitioners submits that the respondent Housing Board was not justified in enhancing the price of the land allotted to them unilaterally and without giving an opportunity of hearing to them. It is also submitted that terms and conditions of the agreement, as also order of allotment could not have been unilaterally changed by the respondent Housing Board. It is further submitted that the order dated 23rd of July 1975 (Annexure-5) issued by the Chairman of the respondent Housing Board was his individual decision and was not ratified by the respondent Housing Board till the year 2002, therefore, in their 5 submission , that order cannot be permitted to be given effect to. By referring to the impugned order dated 24.10.2002 (Annexure-1 in C.W.C.J. No. 7459 of 2003), it is submitted that even if price of the lands has been enhanced unilaterally by the respondent Housing Board in its meeting dated 18.10.2002, then in that case also, they can not compel the petitioners to pay the interest with effect from 1.4.1974. According to them, the order dated 23rd July 1975 has merged with the resolution of the Housing Board dated 18.10.2002 and as such, they would be liable to pay interest, if any, from the date of communication of the aforesaid resolution by an order dated 24.10.2002. It has lastly been submitted that though the order passed by the Chairman and approved by the respondent Housing Board was not justified, yet the petitioners are prepared to pay the enhanced price of the plot in question @ Rs. 4800/- per katha , but they may not be compelled to pay the interest with effect from 1.4.1974, rather they may be asked to pay interest only from the date of approval by a resolution of the respondent Housing Board. 6. Learned counsel appearing on behalf of respondent Housing Board has strongly opposed the prayer made in the present batch of writ petitions. It is submitted that once an order was passed by the Chairman in the year 1975 vide Annexure-5 and once it has been approved/confirmed by the resolution of the Housing Board in its meeting dated 18.10.2002, then the petitioners are liable to pay the interest with effect from 1.4.1974 itself and unless and until the petitioners pay the full amount of the enhanced price of the land along with the interest @ 9% per annum, no deed of lease of 6 perpetuity can be executed either in favour of the petitioners or in favour of any other allottee of the Society in question. 7. After having heard the parties at length and after considering the submissions advanced on their behalf, this Court finds that initial price fixed by the then Housing Department for allotment of the land was tentative and, therefore, respondent Housing Board is fully justified in enhancing the price of the plot allotted to the allottees. The petitioners have shown their willingness to pay the price of the lands at the enhanced rate of Rs. 4800/- per katha. Therefore, there is no controversy left to be decided, so far that issue is concerned. 8 However, one important issue has to be resolved and that is regarding the rate of interest and date from which interest is required to be charged by the respondent Housing Board at the enhanced rate of price of the lands allotted to the allottees. From bare perusal of the order dated 23rd of July 1975 (Annexure-5), it appears that the aforesaid order was issued by the Chairman of the respondent Housing Board in his individual capacity and the decision of the Chairman was not approved/confirmed even in the subsequent meetings of the Board of Directors of the respondent Housing Board. The decision of the Chairman came to be confirmed for the first time in the meeting of the Respondent Housing Board held on 18.10.2002. Therefore, it would be construed that the respondent Housing Board passed a final resolution for enhancing the price of the land @ Rs. 4800/- per katha from the date of its resolution dated 18.10.2002. The issues involved in these cases had come up earlier before a Bench of 7 this Court in C.W.J.C. No. 840 of 1990 (Shri Krishna Nagar Vikash Samiti Vs. Bihar State Housing Board ), reported in 1994 (2) PLJR 548 and some directions were issued by this Court and for non- compliance of the order a Contempt proceeding was also initiated. Thus, it appears that the issue involved in these cases could not reach its finality and it was finally resolved by the respondent Housing Board in the meeting dated 18.10.2002. Therefore, this Court is of the considered view that a resolution of the Respondent Housing Board passed on 18.10.2002 cannot be permitted to give retrospective effect with effect from 1.4.1974. Respondent Housing Board, however, would be entitled to charge interest from the allottees on enhanced price of land from the date of resolution of the Housing Board vide Annexure-1. 9. For the reasons recorded above, C.W.J.C. No. 7459 of 2003 and C.W.J.C. No. 3857 of 2003 are hereby allowed. The respondent Housing Board is directed to accept the price of the lands allotted to the petitioners @ Rs. 4800/- per katha. The petitioners are hereby directed to appear before the Managing Director of the Respondent Housing Board with a representation along with a certified copy of this order within one month from today. The Respondent Housing Board is directed to calculate the price of lands @ Rs. 4,800/- per katha along with simple interest @ 6.5% per annum with effect from 18.10.2002 within one month from the date of receipt/production of a copy of this order, subject to adjustment of payment already made by the petitioners or the original allottees. Thereafter, the petitioners shall be obliged to pay the balance price of 8 lands and interest, so calculated by the Respondent Housing Board within one month from the date of communication made by the respondent Housing Board. However, if the payment of entire balance principal amount and the interest amount is not paid by the petitioners within the aforesaid period of one month from the date of communication of calculation, then the Housing Board shall be entitled to realize the compound interest @ 9% per annum with effect from 18.10.2002 till the actual date of payment. On receiving the entire amount, the respondent Housing Board shall be obliged to execute deed of lease in perpetuity/conveyance deed in favour of the allottees or their legal heirs within the period of two months from the date of final payment of the entire amount. However, it is made clear that if the petitioner (s) do not appear before the Respondent Managing Director with a certified copy of this order within one month from today, then it would be construed that the writ petitions, referred to above, have finally been rejected by this court. 10. However, so far C.W.J.C. No. 440 of 2004 is concerned, that has been filed by a Society on behalf of different members/allottees. Name of members of the Society has not been disclosed in the writ petition. Apparently, after allotment of lands/ plots individual allottees have acquired their legal right over the allotted area of land and they are individually liable to pay the principal amount and the interest amount. The petitioner cannot be permitted to raise the issue on behalf of different allottees in the present proceeding, which is in the nature of Public Interest Litigation. Consequently, the present writ petition is dismissed with a liberty to 9 the members of the Society to file their separate representation before the respondent Housing Board to settle their claim also in the light of the present order with regard to the petitioners of C.W.J.C. No. 7459 of 2003 and C.W.J.C. No. 3857 of 2003. If such representations are filed by the other allottees, who are members of the petitioner Society, then respondent Housing Board shall be obliged to consider their claim in the light of present order and pass speaking order. 11. All the three writ petitions are disposed of with the observation and directions made above. No costs. Patna High Court 27th Jan. 2011 Rahman/AFR ( Birendra Prasad Verma, J )