CIVIL APPEAL 13546 of 2015 on 30 October 1975

1. The State of Bihar

2. The Principal Secretary, Urban Development and Housing Department,Government of Bihar, PatnaGovernment of Bihar, Patna

3. The Bihar State Housing Board through its Managing Director, 6 Sardar PatelMarg, PatnaMarg, Patna

4. The Managing Director, Bihar State Housing Board, null 6 Sardar Patel Marg,PatnaPatna

5. The Estate Officer, Bihar State Housing Board, 6 Sardar Patel Marg, Patna

6. The Revenue Officer, Bihar State Housing Board, 6 Sardar Patel Marg, Patna

... ... Respondent/s

======================================================Appearance :For the Petitioner/s: Mr. Dr. Madan Mohan DubeyFor the Respondent/s: Mr. Rajesh Singh, GP 16

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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGHORAL JUDGMENTDate : 28-01-2019

Heard Mr. (Dr.) Madan Mohan Dubey, the petitioner in person and Mr. R.S. Pradhan, learned Senior Counsel for theHousing Board.

The present writ application has been filed for a direction to the Respondent Housing Board to recalculate theinterest as per the agreement dated 30.10.1975 and to refund theexcess interest amount with 12% interest as the same had beenrealized by the respondent Housing Board on threat of executionof sale deed with regard to M.I.G. House No. 67, Lohiyanagar, Patna. The prayer as stipulated in paragraph 1 of writ applicationreads as:

“That, this is an application for issuance of a writof Mandamus directing/commanding the respondents torecalculate the interest as per the agreement dated 30.10.75and to refund the excess amount which the Respondenthave illegally compelled the petitioner for payment forexecution of sale deed for MIG 67 Lohia Nagar,Kankarbagh Patna-20 with 12% cumulative interest asgiven in L.P.A. No.1943/2011.”

The factual matrix of the case is that prior to creation ofBihar State Housing Board (hereinafter referred to as the Board) in1972, the allotment of land/house/flat used to be done by theHousing Department, Government of Bihar. The HousingDepartment published a notice on 20.3.1965 inviting applicationsfor allotment of houses in Lohiyanagar at Patna on rental basis. Inpursuance to the said notice dated 20.03.1965, the petitionersubmitted application and consequently, the Housing Departmentallotted a house to the petitioner being M.I.G. House No.67, videLetter No. 5373, dated 28.09.1968, on the monthly rent of Rs.107/-. The petitioner was given possession of the house in questionand he started residing therein. The petitioner started makingpayment of the rent to the concerned authority.

Facts

Subsequently, after coming into existence of the Boardon 01.05.1972, applications were invited from public including thepersons who were residing on the rental basis, if interested, forpurchase of the houses/flats on hire purchase basis in pursuance tothe decision of the Board. The Board vide letter dated12.6.1975,communicated the decision to the petitioner to allot himMIG 67, Lohiyanagar at the tentative price of Rs.38,600/- to bepaid in installments. In pursuance to the said decision, thepetitioner entered into the agreement, as contained in Annexure 3,with Respondent No. 3, the Board through its Managing Directoron 30.10.1975 for purchase of said house on hire purchase basis.As per the aforesaid agreement, the petitioner was required tomake payment of interest at the rate of 7%, provided theinstallments of Rs.278/- is paid by 7[th] day of every month, failingwhich the petitioner was supposed to pay interest at the rate of9.5% and the amount of installment at the enhanced rate of interestwould come to Rs.322/- and the agreed amount was to be paid intotal 180 installments. The petitioner claims that in pursuance tothe agreement, he deposited the entire amount in 1979. Thereafter,the petitioner requested the Board to inform whether there is anydue amount to be paid, so that the deed may be registered in hisname. On the request of the petitioner, the Housing Board provided calculation chart showing that the petitioner has to payRs.9159/-. After receipt of the said calculation chart dated30.5.1979, as contained in Annexure 4, the petitioner came toknow that the Board has charged the interest at the rate of 8%instead of 7% on the timely payment of the monthly installmentsand at the rate of 10.5% instead of 9.5% on the delayed paymentof monthly installments. The petitioner also came to know thatenhancement in the rate of interest was made without any properdecision of the Board of Directors of the Housing Board.However, final registration of the said flat MIG 67, Lohiyanagarwas done on 30.12.1996. Thereafter, the petitioner continueddemanding refund. However, vide letter dated 24.9.1996, thepetitioner was asked to pay additional sum of Rs.79,062/- and thesaid demand notice was challenged by the petitioner in a writapplication being CWJC No. 2896 of 2009 wherein the saiddemand was quashed and the petitioner was held entitled to refundof the interest from the Board for the period 1974 to 1996.Relevant portion of the order dated 15.11.2011 passed in CWJCNo. 2896 of 2009 reads as follows:

“This writ petition is accordingly allowed and theorder contained in Annexure 13, dated 24.9.1996demanding payment of sum of Rs.79,062/- is quashed. Thesubsequent order as contained in Annexure 8, dated 5.12.2008 so far as it relates to payment in pursuance of theearlier decision, dated 24.9.1996 is also quashed. Since thepetitioner has already made payment of the entire amount,he would be entitled to refund of interest only charged bythe Board for the period 1974 to 1996.”

In pursuance to the order dated 15.11.2011 passed inCWJC No. 2896 of 2009, the Board recalculated the excessinterest amount realized and refunded to the petitioner Rs.26081/-vide Board’s letter contained in Memo No. 5701 dated 21.6.2012,as contained in Annexure R-5 to the counter affidavit filed onbehalf of Respondent nos. 3 to 6. The petitioner, thereafter, againfiled another writ application being CWJC No. 12804 of 2012which was disposed of by a Bench of this Court vide order dated13.5.2013 with a direction to the Managing Director of the Boardto consider the representation of the petitioner alleged to have beensubmitted on 4.6.2012. The said representation was disposed ofby the Managing Director vide order dated 22.7.2013 whereby,after deducting the amount to the tune of Rs.26081/- already paidto the petitioner, the balance amount was calculated as Rs.44011/-and the Managing Director vide letter contained in Memo No.6153 dated 26.7.2013, as contained in Annxure R-8 to the counteraffidavit, also refunded Rs.44011/- to the petitioner.

It is submitted by the petitioner, in person, that the rateof interest was enhanced from 9.5% to 10.5% without any suchdecision of the Board. Consequently, the learned Senior Counselappearing for the Board was granted opportunity to bring onrecord the decision of the Board since it was initially claimed bythe counsel that decision was taken by the Board but no suchdecision was brought on record and ultimately a supplementarycounter affidavit was filed by Respondent Nos. 3 to 6 dated12.4.2018 wherein it was admitted that from July, 1974 to January,1979 the petitioner deposited Rs.27205.79 on the basis of whichinterest was calculated at the rate of 10.5% but if the interest atthe rate of 9.5% is calculated, the amount which the petitioner wasliable to pay, comes to Rs.25528.14. Hence, the petitioner madeexcess payment of Rs.1677.64, moreover, an excess amount ofRs.618.41 was also deposited, hence the total excess amountdeposited by the petitioner was Rs.2,296.06. Paragraphs 4 and 5 ofthe supplementary counter affidavit dated 12.4.2018 read as follows:

“4. That in view of the said direction of theHon’ble Court, the matter of interest has been re-examined by the Revenue Section of the Office of theBoard and after reverification and calculation, it hasbeen found that from July 1974 to January 1979 andagain from January 1985 to January 1989, the interesthas been charged at the rate of 10.5%. However, on calculation of the amount payable by the petitionerfrom July 1974 till January 1979, the petitioner madedeposit of Rs.27,205.79/- in which interest wascalculated at the rate of 10.5% but, if interest at therate of 9.5% is calculated, the amount payable by thepetitioner comes to Rs.25,528.14/- and if the saidamount of Rs.25,528.14/- which was at the rate of9.5% is deducted from Rs.27,205.79/-, excessamount at the rate of 1% comes to Rs.1,677.64/- andin that way, the Board issued letter as zero dues in1988. Thereafter, an excess amount of Rs.618.41/-was also deposited. In this way, the allottee depositedRs.1,677.64/- + Rs.618.41/- i.e. total excess amounton account of interest was deposited by the allotteewhich comes to Rs.2,296.6/-. The Office has alsoprepared computerized detail calculation chart monthwise. A photo copy of the calculation chart monthwise is annexed herewith and is marked as Annexure-R10 to this affidavit.

5. That, thus, it is stated that the excessamount on account of interest deposited by thepetitioner i.e. Rs.2,296.6/- has been worked out andcalculated in the chart which is based on calculationof interest at rate of 9.5% and according to the saidcalculation, an excess amount of Rs.2,296.6/- on thebasis of interest at the rate of 10.5% for certainperiod comes as per the calculation chart as annexedabove in the present third supplementary counteraffidavit.”

Mr. R.S. Pradhan, learned Senior Counsel for the Boardsubmits that the Board is ready to refund the excess paid amountto the petitioner. Mr. Dubey, the petitioner in person, submits thateven the present calculation made by the Board is wrong, however,taking into account the fact that the matter has remained pendingsince long and the petitioner, due to his old age, is not inclined tocontinue with the litigation and accepts the present calculatedamount with interest. However, no affidavit with regard to theaforesaid acceptance has been filed by the petitioner. It issubmitted by the petitioner that the entire payment was made in1980, hence the refund of admitted excess payment be made withinterest.

Considering the rival submissions of the parties, sincethe Housing Board admits that excess amount to the tune ofRs.2296.06 has been realized from the petitioner due tocalculation of interest at the enhanced rate without proper approvalof the same by the Board of Directors and the petitioner is ready toaccept the calculated amount, the Managing Director of the Boardis directed to refund the said amount with interest of 4% to becalculated from 1[st] of January, 1981 till the date of actual payment.It is expected that the whole exercise be completed within threemonths.

9/9

Accordingly, this writ application is allowed to theextent indicated above.

Amrendra/-Anil/(Dinesh Kumar Singh, J)

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