1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3382 of 2004 Smt.Sunita Gujadhur W/o Shiv Kumar Gujadhur daughter-in-law of late Smt. Indu Gujadhur, resident of Road No.4, Patel Nagar next to Pandui House, Patna -1. 2.Shiv Kumar Gujadhur S/o late Jagdish Gujadhur Resident of Road No.4, Patel Nagar next to Pandui House, Patna -1. ……. …….. Petitioners Versus 1.The Chairman of Bihar State Housing Board, Patna 2.Land Collector Officer, Bihar State Housing Board, Patna 3.Managing Land Controller-cum-Joint Secretary, Bihar State Housing Board, Patna 4.Officer-in-charge, Bihar State Housing Board, Patna ……. …….. Respondents ---------- For the petitioners: Mr.Sharda Nand Mishra Mr. Deepak Kumar For the Housing Board: Mr. Anil Kumar Sinha ----------- 3. 27.6.2011. Heard learned counsel for the petitioners and learned counsel appearing on behalf of the respondent- Bihar State Housing Board, Patna The prayer made in the writ petition is for quashing of letter dated 23.12.2000 as contained in annexure-7 to the writ petition whereby and whereunder the petitioner was allotted MIG Flat No.3-MF-7/40 and was directed to make payment of rest of the amount to the tune of Rs.1,47,782/- in terms of Regulation 33(1) of the Bihar State Housing Board (Management and disposal of Housing Estates), Regulation, 1983 (hereinafter referred to as “Regulation”), by way of Bank Draft in favour of Bihar State Housing Board, Patna Division-2. Further prayer of the petitioners is for directing the respondents to allot M.I.G Flat as per agreement made in the year 1981. The alternative prayer of the petitioner is if 2 the allotment of flat is not made as per the agreement made in the year 1981, the amount so deposited in the year 1981 should be returned with compound interest at the rate of 18%. The petitioners have filed a supplementary affidavit in this case in which in para-5 statement has been made that he would have no objection if Board shall pay entire deposited amount with compound interest till date. Originally one Jagdish Gujadhar was applicant before Bihar State Housing Board, Patna (hereinafter referred to as the „Board‟) for allotment of a flat. Jagdsih Gujadhar is father-in-law of petitioner no.1 and father of petitioner no.2. He died on 10.3.1976 leaving behind his widow Indu Gujadhar and his son petitioner no.2 as his heirs and legal representatives. Smt. Indu Gujadhar, mother of petitioner no.2, also died on 19.2.1987. The main writ petition was filed by Smt. Sunita Gujadhar, wife of petitioner no.2. However, subsequently by order dated 18.3.2011 Shiv Kumar Gujadhar was allowed to be impleaded as petitioner no.2 in the present proceeding. The fact of the case is that on 12.12.1972 late Jagdish Gujadhar got registered as an applicant for allotment of MIG flat by depositing Rs.50/-. Thereafter, late Indu Gujadhar deposited Rs. 6,500/- as earnest money for allotment of MIG flat in Patna on 7.9.1981. On 23.12.2000 a lottery was held by the respondent-Board in which the petitioner was allotted MIG Flat No.3MF7/40 and, accordingly an intimation in this regard was issued to late Indu Gujadhar, who was required to deposit Rs.1,47,782/- by 31.1.2001 in terms of Regulation33(1) in favour of Bihar State Housing Board 3 by way of bank draft. It was made clear that if payment would not be made within the stipulated period, 20% of the deposited amount would be forfeited in terms of the provisions prescribed under Regulation and rest of the amount would be refunded and the applicant would have no claim in future for allotment of flat against the Board. The petitioners have filed the present writ petition in 2004 with a prayer as mentioned above. Learned counsel for the petitioners have categorically made submission at Bar that the petitioners do not want allotment of flat. What they want is simply refund of amount together with compound interest at the rate of 18%. In reply learned counsel for the respondent-Board submits that prayer made in the writ petition is misconceived on the ground that the petitioners claim themselves to have entered into an agreement with the respondent-Board whereas the fact of the matter is that no agreement was ever executed between the parties. It was simply a registration and payment of earnest money by the original applicant and his wife and the Board has never entered into an agreement either with the petitioners or with the original applicant or his wife. Hence, he submits that the claim of the petitioners in the writ petition that allotment of flat be made in terms of the agreement is thoroughly misconceived. He further submits that the Board held a lottery on 23.12.2007 for the purpose of allotment of flat/house/plot and Smt. Indu Gujadhar was allotted MIG Flat No. 3MF7/40 at Bahadurpur, Patna and a communication in this regard was sent to her address by letter no.2 dated 23.12.2000. The allottee 4 was requested to deposit Rs.1,47,782/- as per Regulation 33(1) of the Board within 31.1.2001. He has further stated that in the aforesaid letter of the Board it has been mentioned that after payment and after execution of registration of agreement possession of the said flat would be taken from the Executive Engineer, Division No.2, Patna. He has further submitted that the letter clarified that if the said amount is not deposited within the stipulated period the allotment itself would be automatically cancelled and the allotment would be made to other applicants. He further submitted that in terms of Regulation 33(3) of the Board if the applicant fails to deposit the amount within the specified period, the allotment shall be cancelled and sum of money equal to 20% of the deposit shall be forfeited and the balance shall be refunded. Learned counsel for the respondent-Board submits that the applicant and/or her legal heirs and representatives never deposited the amount specified in the letter dated 23.12.2000 of the Board and failed to comply the conditions specified therein and after four months from the date of issuance of the letter the writ petition was preferred before this court. He further submits that money deposited by the original applicant can be refunded to the petitioners in accordance with law specially in terms of Regulation 33(3) which prescribes that after deducting 20% from the deposit amount by the allottee, rest of the amount would be refunded. In view of the rival submissions made on behalf of the parties, I am of the view that prayer made on behalf of the petitioner either for allotment of flat in terms of price quoted at the time of 5 original advertisement or the prayer for refund of the amount deposited by the original applicant with a compound interest at the rate of 18% cannot be allowed. However, in view of the fact that money has been deposited long back and there has been failure on the part of legal representative of the original applicant to deposit the amount in terms of the allotment made by the Board, the amount deposited by original applicant must be refunded to the petitioner after deducting a sum of money equal to 20% of the deposit within one month from the date of receipt/production of a copy of this order in terms of their own Regulation which is Regulation 33 (1) and 33 (3). Learned counsel for the petitioner relies upon decisions reported in 2003 (3) PLJR 45 (Ram Keshwar Choudhary Versus The State of Bihar & Others), 2010 (3) PLJR 241 (Shakuntala Devi Versus The Managing Director, Bihar State Housing Board, Patna & Ors.) and 2011 (2) BBCJ 660 (Mahendra Prasad Singh Versus The Bihar State Housing Board, Patna through its Managing Director & Ors.) in order to substantiate his submission. Learned counsel appearing on behalf of the respondent- Board submits that the judgment relied upon on behalf of the petitioner are not applicable to the facts of this case. He further submits that in those cases barring the case reported in 2011 (2) BBCJ 660 the facts were quite different. Those judgments would not be applicable to the facts of the present case. So far as the judgment relied upon on behalf of the petitioner as reported in 2011 (2) BBCJ 660, learned counsel for the petitioner submits that 6 Regulation 33 of the Board clearly stipulates following : “33. (1) immediately after decision on allotment of dwelling units/flats/sites has been taken, the applicant under High Income Group and Middle Income Group shall be required to pay/deposit equal to 30 per cent of the disposal price, but the applicants under Low Income Group and Economically Weaker Section, shall be required to pay deposit equal to 20 per cent of the disposal price. Such deposit shall be non-interest deposit. (2) An applicant to whom a dwelling unit or flat/site has been allotted have to pay the balance amount of the disposal price (i.e. after adjusting the deposit) within such period as may be determined by the Board and specified in the allotment order/letter. (3) If the applicant fails to pay the amount within the said specified period, the allotment shall be cancelled and a sum of money equal to 20 per cent of the deposit shall be forfeited and the balance refunded. (4) In the case of such applicants as have not been finally allotted any dwelling unit/site the deposit specified in sub.regulation (1) shall be refunded. (5) The Board shall have the sole and exclusive right over the deposit till it is adjusted or refunded with or without deduction as provided in these regulations.” He further submits that Regulation 45 would not be applicable in this case. He submits that in case the Board fails to provide allotment of flat/house/plot to an applicant then in that case the Board shall be liable to pay simple interest at the rate of 5% as 7 per Regulation 45 but in a case where failure to deposit the amount is on the part of the applicant then in that case Regulation 33 (3) would apply and Regulation 45 would not be applicable. Regulation of Bihar State Housing Board was made under the provision of section 115 of the Bihar State Housing Board Act, 1982 (hereinafter referred to as the „Act‟ for the sake of brevity) and was held and was duly published in the Bihar Gazette (Extra-ordinary) dated 24.5.1983 for the purpose of giving effect to the provisions of the Act. Regulation 45 of the said Regulation reads as follows:- “45. Simple interest at the rate of 5 per cent will be payable on the amount of earnest money deposited by the applicants, after the date of enforcement of this regulation. No interest will be payable on deposits made hereinbefore.” Hence, the said regulation clearly and emphatically provides that simple interest at the rate of 5% per annum will be payable on the earnest money deposited by the allottee and thus the rate of interest cannot travel beyond the interest regulated by the said statutory regulation which fixed it at 5% per annum. The said Regulation being self contained and the interest payable being regulated by the statute under the Regulation, I am of the view that compound interest at the rate of 18% as prayed for on behalf of the petitioners cannot be allowed. Since the petitioners have relied upon a judgment reported in 2011(2) BBCJ 660 (Mahendra Prasad Singh Vs. The Bihar State Housing Board, Patna through its Managing 8 Director and others), I find that facts of that case are more or less identical to the facts of the present case. In that case it has been held that since the petitioner himself is a defaulter, he cannot claim refund of 100% of earnest money and is entitled to get refund of earnest money after forfeiture of 20% of the said amount. It has further been held in that case that under Clause 45 of the Regulation the simple interest at the rate of 5% will be payable on the earnest money deposited by the applicant. In that case it has been held that the respondent-Board would pay simple interest at the rate of 5% per annum on the amount payable to the petitioner. In view of the aforesaid judgment, I direct the respondent-Board to refund the amount so deposited by the petitioners as earnest money after forfeiture of 20% of the said amount with simple interest at the rate of 5% per annum from the date of deposit of the amount of earnest money till the date it is refunded. The petitioner is thus directed to make representation in this regard before the Managing Director, Bihar State Housing Board within a period of six weeks and in case such representation is made before the Managing Director of the Board he would ensure refund of earnest money after calculating simple interest at the rate of 5% per annum on the amount payable to the petitioners in the light of observation made hereinabove within a period of one month thereafter. In case refund of the amount is not made within the aforesaid period, the due amount shall carry interest at the rate of 9% per annum from that date. Learned counsel for the respondent-Board submits that it should be clarified as to in whose favour the amount refunded is to 9 be paid. Learned counsel for the petitioners submits that payment can be released in favour of either of the petitioners. In that view of the matter, the respondent-Board shall make payment within the stipulated period in the name of any of the petitioners of the present writ petition. With above observation and direction, the writ petition is disposed of. Md.S. (A.F.R.) ( Ashwani Kumar Singh, J.)