IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4295 of 2002 RAJENDRA PAL SINGH, SON OF LATE KARTAR SINGH, PRESENT ADDRESS-161-C, RANDHIR SINGH NAGAR, LUDHIANA. ..................... PETITIONER Versus 1. BIHAR STATE HOUSING BOARD, THROUGH THE CHAIRMAN, 6 MANGLES ROAD, PATNA. 2. THE MANAGING DIRECTOR, BIHAR STATE HOUSING BOARD, 6, MANGLES ROAD, PATNA. 3. THE EXECUTIVE ENGINEER, BIHAR STATE HOUSING BOARD, PATNA DIVISION NO.-1, PATNA. 4. ESTATE OFFICER (PRABANDHAK BHOO-SAMPADA) BIHAR STATE HOUSING BOARD, PATNA. ...................... RESPONDENTS ----------- 9. 21.4.2009 Heard Mr. Mrigank Mauli, learned counsel for the petitioner and Mr. Anil Kumar Sinha, learned counsel for Bihar State Housing Board. In this writ application the petitioner has made a prayer to the following effect: “I. For commanding the respondent authorities to deliver the possession of the plot allotted to the petitioner or any other undisputed plot, having the area and value similar to that of the allotted plot, in that locality. II. For commanding the respondent authorities to execute and register the agreement of sixty-six years (66) lease as per their commitment and terms of deed of agreement of hire-purchase in favour of the petitioner. (III) For commanding the respondent 2 authorities to pay interest at the rate of 18% per annum from the date of full and final payment of Rs. 91,500/- (Rupees ninety-one thousand and five hundred only) i.e. 26.12.2000, till the delivery of possession. IV. For commanding the respondent authorities to pay the appropriate compensation, for mental and physical suffering of the petitioner due to action and omission of the respondent authorities and the litigation cost.” The Board has filed a counter affidavit in response to the aforementioned relief and the facts mentioned in paragraphs 5 to 12 therein would go to show that there is some sort of serious dispute as to who is at fault, whether the Housing Board or the petitioner, in the execution of agreement. Paragraphs 5 to 12 to the counter affidavit reads as follows : - "5. That with regard to the statements made in paragraphs 4 and 5 of the writ application under reply, it is stated that a commercial plot no. 1/RC-5 at Bahadurpur, Patna was allotted to the petitioner as a highest bidder on a sum of Rs. 91,500/- as per the auction held on 29.4.1984. The allotment order was communicated to 3 the petitioner vide Board's letter No. 2962/AA dated 7.8.1984 containing therein certain terms and conditions of allotment. As per Clauses 3, 6 and 7 of the allotment order, the petitioner was required to enter into agreement with the Board after depositing required amount. The petitioner thereafter was required to take delivery of possession. 6. That with regard to the statements made in paragraph 6 of the writ application under reply, it is stated that the petitioner was not complying the aforesaid terms and conditions of the allotment therefore the respondent Board vide its letter no. 3963/AA dated 6.11.84 requested the petitioner is execute the Hire Purchase Agreement till 10.11.1984. It is relevant to mention here that the answering respondent vide their letter no. 5180/AA dated 17.12.1984 informed the petitioner regarding change of Boundary and again by their letter No. 1719/AA dated 26.8.1986 issued notice to the allottee/petitioner is execute agreement positively till 15.9.1986 and is take possession of the allotted plot. But the petitioner instead of entering into an agreement submitted an application dated 24.9.1986 to the Manager Estate Bihar State Housing Board. 7. That the respondent Board in pursuance of the application dated 24.9.1986 of the petitioner called for a report from the concerned Executive Engineer of Bihar State Housing Board Division I vide letter no. 2565/AA dated 16.11.89 and letter No. 1145/AA dated 11.5.1990. 8. That with regard to the statements made in paragraph 7 of the writ application under reply, it is stated that the same are misleading. The Board in reference to the earlier letter again served 4 a last notice vide letter no. 1136/AA dated 10.5.1990 to the petitioner is execute agreement within one month from the date of issuance of letter and to take possession from Executive Engineer Division I, Bihar State Housing Board, Patna and to make payment of due instalments. In the said letter the respondent Board had also mentioned that if petitioner would not comply the direction within time then it would be presumed. That the plot no. 1/RC-5 was not required to the petitioner and the Board shall proceed to cancel the allotment and shall forfeit the entire deposited amount. 9. That lastly the writ petitioner as per his own sweet will entered into an agreement with the Board on 22.12.2000 after a gap of 16 years from the date of allotment which is clear from Annexure 2 of the writ application under reply. 10. That with regard to the statements made in paragraph 8, 9 and 10 of the writ application under reply, it is stated that as per information of Executive Engineer, Division I, vide his letter no. 2007 dated 26.4.2002, the Allottee/petitioner deposited Rs. 22,075/- before allotment and then Rs. 33,000/- on 18.2.1999 and Rs. 38,625/- on 21.5.2001. 11. That with regard to the statements made in paragraph 11 and 12 of the writ application under reply, it is stated that the petitioner was informed on 26.12.2000 by the Board about delivery of possession to him punishment/execution of the said agreement on 22.12.2000. The Executive Engineer also reported that as per the statement of the Assistant Engineer/Junior Engineer concerned, physical measurement and pegging was done in presence of the petitioner but the petitioner did 5 not sign the possession register and did not take any step is construct the boundary wall while the plot was vacant. Therefore due to latches and negligence on part of the writ petitioner, the allotted plot was encroached. It is stated that despite repeated request by the Board to the petitioner, as steps whatsoever was taken by him to take possession from the board and it was the duty of the petitioner is approach the concerned authority of the Board for this purpose. In this connection the Clauses No. 14, 8 and 21 of the Hire Purchase Agreement (Annexure-2 of writ petition) are relevant which may be referred upon. 12. That without prejudice is the above it is relevant to mention here that the petitioner has not availed the Clause of arbitration as laid down in paragraph 24 of the Hire Purchase Agreement before filing the present writ application." It must be noted that though a reply to the counter affidavit has been filed by the petitioner none of the aforesaid factual assertion has been specifically controverted by him. Normally for a resolution of this type of dispute the petitioner having entered agreement dated 21.12.2000 (Annexure-2) containing a clause of arbitration, was required to invoke arbitration before filing of this writ 6 petition, which reads as follows : - “That on matters not specifically stipulated in the agreement or provided for in the relevant rules and regulation of the Board or in case any dispute doubt or question arises between the settlee and the Board in such event every such case shall be referred for arbitration to the Managing Director of the Board acting an such at that time his decision in these regards shall be final and binding on both the parties and shall not be liable to be agitated or questioned in any manner.” Mr. Mauli, however, would invite attention of this Court to an earlier order of this Court dated 22.5.2008 to contend that the subsequent events with regard to allotment of an alternative plot was brought to the notice of this Court, whereafter the Board was directed to file a supplementary counter affidavit. Counsel for the Board has produced before this Court an office order No. 2837 dated 15.10.2005 to suggest that the Board had taken the decision to allot commercial plot no. 1 RC-13 in place of commercial plot no. 1 RC-5 earlier allotted to the petitioner. The said decision had received post facto approval in the meeting of the Board dated 28.11.2005. Counsel for the 7 petitioner produces a subsequent communication of the Board through its Estate Officer contained in letter no. 781 dated 9.5.2007 communicating the decision of the Board to the petitioner that plot of land, commercial plot no.1 RC-13 would cost the petitioner a sum of Rs. 13,89,300/- and the Board would hand over the said plot provided the petitioner deposits the aforementioned amount. The petitioner has a grievance that he should not be charged this amount of Rs. 13,89,300/- as he was allottee of the year 1984 and stood deprived from the plot as originally allotted to him in the year 1984 due to fault of the Board. On the other hand, counsel for the Board with the help of original file and records produced before this Court as also the counter affidavit would put the entire blame for delay in allotment squarely on the head of the petitioner. Obviously these aspects of the matter could be more effectively gone into if the petitioner had invoked arbitration proceedings in terms of the agreement entered into by him with the Board. 8 However, at a stage when the subsequent events have taken place after filing of the writ petition in the year 2002, this Court would leave the parties to enforce their rights against each other and in that view of the matter, it would be open for the Housing Board to make a fresh demand after giving the reasons for any additional amount and in the event the petitioner is aggrieved by such demand the petitioner will have to take recourse of arbitration proceedings. This Court has to only note that the conduct of either of the party in resiling from the terms of the agreement or putting blame on each other being essentially a question of fact requiring leading of evidence, the same can be more effectively gone into before the arbitrator in terms of the agreement. That being so, when one of the relief of the petitioner, namely, allotment of any other plot has already been allowed by the Housing Board and its possession is sought to be delivered to the petitioner on payment of amount as demanded in the notice, the purpose of this writ application has 9 become academic rendering this application to be infructuous, inasmuch the execution of registered agreement can only be made after the petitioner fulfils the conditions in the agreement including payment of consideration amount. The question of payment of interest of 18% on a sum of Rs. 91,500/- deposited by the petitioner on 26.12.2000 or compensation demanded by the petitioner from the Housing Board can again be more effectively gone into in an arbitration proceeding after it is held that the demand of the Board against the petitioner for a sum of Rs. 13,89,300/- was itself illegal. For the moment this Court having looked into the original record is satisfied that the Board also has a case for putting its defence against the case of the petitioner of delaying in delivery of possession and/or execution of agreement. The petitioner infact having not controverted the specific averment made in paragraphs 4 to 9 of the counter affidavit, by filing a rejoinder affidavit and without addressing to the aforesaid categorical statement therein cannot be heard to say that the Board alone was responsible for the 10 delay in allotment execution of agreement and delivery of possession of plot. The other plea of the petitioner, that the Board in the year 2002 will be deemed to have waived of its rights, is equally untenable. Infact it would be a wholly premature conclusion at this stage specially when the issue of the Board’s offering an alternative plot in the year 2005-07, as noted above, is yet to be accepted by the petitioner. What would be the offer of the petitioner in the light of the subsequent event will be a matter which can initially be gone into through agreed recourse of arbitration as per agreement but then to say that the Board alone is sinner would amount to putting the cart before the wheel. That being so this court would direct the petitioner to file his reply to the offer of the Board in its letter no. 781 dated 9.5.2007 within a period of three months from the date of receipt of this order and the Board is directed to pass an order on the same within next one month. In the event the Board would hold the 11 petitioner liable to pay any amount the petitioner may pay the same and get the delivery of possession of plot. If however the petitioner would deny his liability to pay such amount to the Board, he will have to take recourse to arbitration as agreed by the parties in Clause 4(a) of the agreement dated 21.12.2000 (Annexure-2). With the aforementioned observation and direction, this writ application is finally disposed of. (Mihir Kumar Jha,J.) Surendra/