Ashok Kumar Thakur vs State of West Bengal

Jayanta Kumar Biswas, J.—The orgiginal writ Petitioner (now his son is prosecution the case) was aggrieved by the decision of the second Respondent (West Bengal Housing Board) dated May 25th, 1991 cancelling allotment of a house, made in his favour in 1982, on the ground that he had failed to comply with the directions given by the board by letter dated March 12th, 1991.

By a letter dated December 4th, 1982 the house (No. 4-type GB-1 at cluster-VII of Purbanchal Housing Estate in GA block of sector-III of Salt Lake) was provisionally allotted by the board, it was mentioned that in default of complying with the terms and conditions laid down in the brochure concerned, the allotment order would stand automatically cancelled. Possession of the house was to be given after registration of the sale deed.

By a letter dated September 14th, 1983 the board directed the allottee to contact its documentation cell within thirty days for the purpose of execution of the deed. He was informed that he Would be required to make the payments mentioned in the letter. By a letter dated April 3rd, 1984 the allottee requested the board to permit him to transfer the house to another person, on the ground that for financial constraints he was not in a position to purchase it. By a letter dated June 14th, 1984 the board said that here was no scope to permit him to transfer the house. He was directed to act accordingly.

By an order dated January 8th, 1986 a tax recovery officer reqested the board not to refund the sum paid by the allottee towards full price of the house, if the allotment was cancelled. By a letter dated May 19th, 1988 the allottee wanted to know from the sales Manager of the board what amount he would be required to deposit for registration and stamp charges.

By the letter dated March 12th, 1991 the board informed the allottee about the long delay in execution and registration of the deed. It directed the allottee to take steps for the purpose within thirty days, mentioning that on failure to comply with the direction the allotment would be cancelled and the house wold be disposed of. By a letter dated April 9th, 1991 the allottee''s advocate requested the board to defer the execution of the sale deed for eight weeks, on the ground that the allottee was advised rest for eight weeks from that date. The board cancelled the allotment by the letter dated April 25th, 1991. Questioning the action this writ petition dated July 10th, 1991 was taken out.

The orgiginal writ Petitioner (he was the allottee) having died during pendency of the writ petition, his son (Ashok Kumar Thakur), who is prosecuting the proceedings at the present moment, filed an application for substitution. By an order dated September 7th, 1999 that application was allowed and the department was directed to take steps for incorporating the necessary amendments. Before the amendments were incorporated, the writ petition, with the original cause title, appeared for hearingas an old matter, and by order dated September 20th, 2001 it was dismissed for default.

After the writ petition was dismissed, the board published advertisement dated January 30th, 2004 inviting application from person interested in purchasing the house. That advertisement was followed by another dated February 24th, 2004 in which the revised reserved price was mentioned. The added Respondents who applied along with others and offered Rs. 32.40 lakh came out successful in the auction held by the board on March 5th, 2004. The deed was executed and registered in their favour on May 25th, 2004, and possession of the house was given to them by the board on June 3rd, 2004.

On June 8th, 2004 an application for restoration was filed and by order dated January 20th, 2005 the order dated September 20th, 2001 was recalled and the writ petition was restored. It has now come up for final hearing once again as an old matter.

Counsel for the Petitioner submits that on the facts the board abused its discretion for the purpose of cancelling the allotment. He says that according to terms and conditions of the letter dated march 12th, 1991 for failure on the part of the allottee to take steps for execution and registration fo the deed, the board could not have cancelled the allotment. He points out that advocate for the alottee in his letter dated April 9th, 1991 wrongly mentioned the facts about the date at which the period for executing the deed was to expire. His contention is that for such misunderstanding and misinterpretation of the terms and conditions of the letter concerned, the board did not acquire any power to right to cancel the allotment. He argues that for delay in execution and registration of the deed the allottee was not to be blamed, since after issuing the letter dated September 14th, 1983 the board never notified the programme of its documentation cell.

By referring me to the apex court decision in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , and by reading out to me the statements made by the board in its opposition, he argues that the board has sought to supplement its decision by disclosing in its opposition grounds and reasons which wee not stated in the decision itself. According to him there was no reason why the board decided not to extend the time considering the request made by letter dated April 9th, 1991. He rerers to the subsequent events and severely criticises the manner in which the board disposed of the house.

Mr. Advocate General, appearing for the board, submis that in the facts and circumstances of the case exercise of discretion by the board to cancel the allotment cannot be said to be an abuse of discretion. He says that for reaching a conclusion that the board abused its discretion a much stronger case is needed. He points out that from the very beginning the allottee was in formed about the requirement of execution and registration of the deed, but he never cared to take the necessary steps. He argues that ever after receipt of the letter dated March 12th, 1991, till April 9, 1991 the allottee took no reasonable steps in the matter, when he was supposed to respond within thirty days from March 12th, 1991. His contention is that at this distance of time the writ court being essentially a court of equity should not interfere in the matter, particularly when the allottee could at best sue only for compensation.

Counsel for the added Respondents contends that after a valid title passed on to his clients, no relief can be given to the Petitioner with respect to the property in question. He points out that validity of transfer of the property made by the board in favour of his clients is not in question in the present proceedings. He says that being the bonafide purchasers of the property, his clients cannot be made to suffer any prejudice or loss by any order made in this case. In reply, counsel for the Petitioner refers me to the apex court decision in Vareed Jacob Vs. Sosamma Geevarghese and Others, , and contends that if the cancellation order is found to be bad, then relief can be given to his client even with respect to the property in question.

I, therefore, find that he first question that requires determination is whethere the exercise of discretion by the board can be said to be unfair, arbitrary or unreasonable. If the decision cancelling the allotment is found to be bad and liable to be quashed, then the question regarding what relief can be given to the Petitioner would arise.

After considering all the materials on record, I find that ful payment towards price of the house had been made by the allottee before September 14th, 1983. It is only thereafter that the board directed him to contact its documentation cell within thirty days from September 14th, 1983 for the purpose of executin and registration of the deed. There is nothing to show that within thirty days from September 14th, 1983 the allottee conacted the documentation cell of the board. It is curious that when full payment towards price of the house had been made by the allottee before September 14th, 1983, he wrote the letter dated April 3rd, 1984 seeking a re-allotment permission from the board in favour of his chosen person, on the ground that for financial constraints he was not inclined to purchase the house. He never questioned the decision of the board rejecting his request; such decision was given on June 14th, 1984. Till May 19th, 1988 he did not show any interest in getting the deed executed and registered. In the meantime by order dated January 8th, 1986 the tax recovery officer requested the board not to pay the amount deposited by him towards price of the house, if the allotment was cancelled.

There was no valid reason for the allottee to write the letter dated may 19th, 1988 addressed to the sales Manager of the board. In terms of letters dated September 14th, 1983 and June 14th, 1984 he was to take steps for execution and registration of the deed, and for the pupose he was to pay the charges mentioned in letter dated September 14th, 1983. The letter dated March 12th, 1991 was issued by the board to give the allottee the last opportunity to take steps for execution and registration of the deed. Instead of responding promptly, he chose to respond through his advocate quite belatedly. There was no reason for him not to respond before April 9th, 1991, when he was supposed to act within a month for March 12th, 1991. The letter dated April 9th, 1991 was served on April 10th, 1991.

On these facts, it is very difficults to say that the allottee was all along acting in right earnest to get the requisite sale deed executed and registered. I find substantial force in what Mr. Advocate General says that being a statutory authority the board was not supposed to wait for indefinite period for disposing of the property, it is very difficult to accept that a person of reasonable prudence acting bonafide would not press the statutory allotting authority to execute and register the deed and give possession of the house immediately after full payment towards price is made. The mysterious conduct of the allottee leads me to the conclusion that for his own reasons he was wilfully and deliberately delaying the execution and registration of the deed. I am thus unable to hold that the board abused its discretion in cancelling the allotment. I do not see any reason why action of the board should be held to be unfair, arbitrary or unreasonable.

Having found that there is no reason to inferfer with the cancellation decision, I do not find any necessity to go into the question of the Petitioner''s entitlement to relief in the wake of the subsequent developments. Needless to say that the Petitioner would be entitled to seek refund of the amount from the board in accordance with the terms and conditions of the brochure and the letter of allotment. If such refund is sought, the amount payable shall be paid by the board, if there is no legal bar.

For these reasons I hold that the impugned cancellation decision does not warrant interference by the writ court. I accordingly dismiss the writ petition. There shall be no order for costs in it.

Certified xerox copy of this judgment and order shall be made available to the parties, if applied for.