IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.266 of 2005 ARJUN PRASAD Versus BIHAR STATE HOUSING BOARD &ORS ----------- For the Petitioner:- Mr.Bamdeo Pandey, Adv. Mr. Arun Kumar Sinha, Adv. For the Housing Board: - Mr. Anil Kumar Sinha, Adv. ----------------- 2. 4.9.2008 Heard learned counsel for the petitioner and learned counsel for the Bihar State Housing Board. The petitioner seeks direction upon the respondent Bihar State Housing Board to replace/mutate the name of the petitioner in the records of the Board in place of Anil Kumar Mukherjee, the original vendee of sale deed executed by the Board. The facts necessary for the decision of this Case is that House No. 39 in Sri Krishna Nagar, Patna was allotted to the said Anil Kumar Mukherjee with respect to which an agreement dated 25.8.1966 was entered into between the said Anil Kumar Mukherjee as the first party and the Housing Board under which certain amount had to be paid immediately and the balance amounts were to be deposited in 24 equal monthly installments. Clause 12 of the said agreement was in the following terms:- “Unless the house is transferred in his name the first party shall not be entitled to saleled (sic) or part with the possession of the transfer in any manner the whole or a part of the house without the previous permission in writing of the second party.” - 2 - Subsequently, the original allottee Anil Kumar Mukherjee having paid the entire amount as stipulated in the agreement dated 25.8.66, the house in question was transferred to him on the basis of the final deed of sale bearing registration no. 2710 dated 29.4.76 and the Housing Board delivered the full and final possession to the said Anil Kumar Mukherjee on 29.4.79 declaring him as the absolute owner of the house in question. Immediately thereafter by a sale deed bearing registration no. 2846 dated 5.5.1976, the said property was transferred by Anil Kumar Mukherjee to the petitioner and the possession of the said property was also handed over to the petitioner. The petitioner informed the Housing Board about the said sale and made a request that his name should be mutated/replaced in the records of the Housing Board. Despite several reminders and several visits to the office of the Housing Board nothing has come out in the matter and lastly by letter dated 15.3.2004 (Annexure- 5) the Estate Officer of the Housing Board demanded from the petitioner proof regarding permission of the Board for making the sale, the death certificate of the said Anil Kumar Mukherjee ( who has since died) and also receipt showing payment of amount of Rs. 8458/- being balance on the basis of the final valuation dated 31.7.1980 and further amount of Rs. 6412/- towards compensation for encroachment as indicated in Letter No. 506 dated 6.5.2003 of the Executive Engineer, Patna Division. The same was duly replied by the petitioner by his letter dated 29.3.2004 (Annexure- 6). Learned counsel for the petitioner submits that in view of - 3 - the aforesaid Clause No. 12 in the first agreement dated 25.8.1966 (Annexure-1) and the subsequent registered sale deed dated 29.4.1976 transferring the house in name of Anil Kumar Mukharjee, there was no occasion for the Board to have raised any such demand regarding obtaining of previous permission of the Board or directing for the production of the death certificate of the original allottee, Anil Kumar Mukherjee. It is submitted that there is no such term and condition in either the agreement dated 25.8.66 or the sale deed dated 29.4.76 and therefore the Board cannot be permitted to demand the same. It is urged that clause 12 of the said agreement clearly provides that once the house is transferred in the name of the first party, that is, Anil Kumar Mukherjee then no such previous permission in writing of the second party would be required for transfer of the house. The same having been done by the subsequent registered sale deed dated 25.8.66, there was no occasion for obtaining any permission of the Board for the sale to the petitioner. With respect to the demand of unearned increase by the Board on account of the transfer, as made in the counter affidavit on the basis of Board’s office order dated 21.2.1994 and 16.6.2001, it is submitted that any such demand not having been part of the agreements dated 25.8.1966 and sale deed dated 29.4.1976 cannot be made on the basis of internal orders of the Board. With respect to the demand of Rs. 8458/- learned counsel states that the same has already been paid by demand draft on 12.2.2007 for which a money receipt (Annexure- 8) has also been - 4 - granted by the Board. Regarding the encroachment, the stand of the petitioner is that as a matter of fact, there is no encroachment over the said land but it is fairly submitted that an enquiry may be made by any competent officer or team of the Housing Board in presence of the petitioner and if any such encroachment is found then the petitioner is prepared to pay the amount demanded by the Board. Learned counsel for the Housing Board on the other hand submits that the claim for unearned increase on a transfer is based upon a circular of the Board. However, he was unable to satisfy the Court as to on what basis the said demand is made contrary to Clause 12 of the agreement dated 25.8.1966. He was unable to meet the other submissions also of the learned counsel for the petitioner on the basis of any term and condition existing in either of the two agreements (Annexures 1 or 2). However, learned counsel insisted that the encroachment having been found, the petitioner would be obliged to pay compensation for the same. On a consideration of the entire facts and circumstances of the case, this Court is of the view that the authorities of the Board have acted in an unreasonable manner in the present matter by not replacing/mutating the name of the petitioner in the records of the Board in place of the original allottee, Anil Kumar Mukherjee, in view of the terms contained in the agreement dated 25.8.1966 read with the registered sale deed dated 29.4.1976 entered into between the Board and the original allottee. The condition laid down in Clause 12 of the - 5 - first agreement was very clear on the basic point and the moment sale deed had been registered on 29.4.1976, the right of the original allottee, Anil Kumar Mukherjee to make a sale or transfer of the said property became absolute without any permission by the Board or payment of any such unearned increase as claimed by the Board. So far as the question of encroachment is concerned, in view of the stand taken by the learned counsel for the petitioner, this Court directs the authorities of the Housing Board to make an enquiry in presence of the petitioner and if any encroachment is found as per the letter dated 15.3.2004 (Annexure -5) of the Housing Board, then the petitioner would be obliged to pay the same within a reasonable period of time. However, if no such encroachment is found on such enquiry, the Board would be obliged to withdraw the said demand. Let the said enquiry be held within a period of three months from today and the authorities of the Board are directed to replace/ mutate the name of the petitioner in their records within a period of four months from today. The writ application is, accordingly, allowed. P. Kumar (Ramesh Kumar Datta, J.)