BISWANATH SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 11th September, 1986 passed by the learned trial Judge disposing of the writ petition relating to Civil Rule No. 1 1338 (W) of 1982. By the aforesaid order, the learned trial Judge dismissed the writ petition and consequently discharged the Rule.

(2.) THE case of the writ petitioner is that the petitioner at the relevant time had been living with his old parents and three unmarried sisters who are dependant members of the family of the petitioner. The Calcutta metropolitan Development Authority (C. M. D. A.) had undertaken a scheme for. enlarging and improving Prince Anwar Shah Road and adjoining areas and due to the said scheme of the C. M. D. A. , the residential area in which the rented premises of the petitioner was situated had been affected and the landlord of the said house had been asking the petitioner and the members of his family to quit and vacate the same. The petitioner was, therefore, under a dire need of searching an alternative accommodation. It was the further case of the petitioner that under such pressing circumstances, the writ petitioner made an application to the West Bengal Housing Board for allotment of a flat of w 2a/r, type at Golf Green Urban Complex, Phase iv. Such application for allotment was numbered as 3792 dated 20th April, 1981 and the same was registered under No. GG/iv/w 2a/210/off. The petitioner had also deposited Rs. 7,500/- as application fee on 20th April, 1981 by a cheque drawn on the United Bank of India, Tolly gunge Branch in favour of the West Bengal Housing Board against receipt granted therefor. After due enquiry made by the Housing Board, the respondent No. 5, Sales Manager, west Bengal Housing Board, was satisfied about the eligibility of the petitioner to get allotment of a fiat being flat No. 15/2 of W 2a (B) type on the ground floor at Golf Green for. a price of Rs. 73,529/- and the petitioner was intimated about the allotment of the said flat by allotment letter No. 1252 5/hb/golf/ph/iv dated 7th August, 1981. The petitioner was asked to deposit a further sum of Rs. 21,911. 60 being 40% of the balance sum of the price of the said flat within 60 days from the date of the said letter of allotment. The petitioner deposited a sum of Rs. 22,399. 06 by a cheque drawn on the United Bank of India, Tolly gunge Branch on 2nd December, 1981 for the said 40% of the balance sum together with interest and a receipt for such payment was also granted by the West Bengal Housing Board. The petitioner married Sm. Manika Sengupta on 16th August, 1981. Sm. Sengupta, the wife of the petitioner, was an employee of the West Bengal Housing board at that time and at the time of presenting the writ petition she was also an employee of the West Bengal Mousing Board. Before her marriage on 16th August, 1981, Sm. Manika Sengupta (nee Sarkar) also got allotment of a flat by West Bengal Housing Board in 1979. The petitioner was, however, not aware of the said fact before his marriage. After the marriage, the petitioner came to know that the petitioner's wife had submitted an application to the West Bengal Housing Board for allotment of a flat of W2cs type in the Golf Green Urban Complex on 26th July, 1979 jointly with her father and the said application was registered and the wife of the petitioner got allotment of a flat No. CS/8/8 of type W2cs on the third floor in the golf Green Urban Complex for a price of Rs. 79,100/- under allotment dated 12th October, 1979. The Sales Manager, West Bengal Housing Board by a letter dated 14th January, 1980 informed the said Mrs. Manika Sengupta that the aforesaid fiat was ready for possession and permission from competent authority was also obtained under the Urban Land (Ceiling and Regulation.) Act 1976 and she was asked to deposit further sums of money on different heads and to take possession of the said flat by 31st January, 1980 and Sm. Sengupta having complied with the same, received possession of the said flat on 6th May, 1980 after execution and registration of the deed of conveyance in her favour. It was the case of the writ petitioner that the said Sm. Sengupta applied for the said flat for residence of herself and members of her family consisting of her old parents and unmarried dependant susters.

(3.) THE writ petitioner by his letter dated 21st May, 1982 requested the said Sales Manager for delivery of possession of the said flat No. 15/2 allotted to him in terms of the allotment letter in view of the fact that the landlord of his tenancy was creating pressure upon him to quit and vacate the same. The petitioner also offered by the aforesaid letter to pay further money towards price of the said flat. The petitioner. unfortunately did not get any reply to the said letter and thereafter he personally caused enquiries at the office of the West Bengal Housing Board on 14th June, 1982. The sales Manager, however, on the said date handed over a letter to him whereby the allotment of the said flat No. 1. 5/2 of W 2a (R) Type in Golf Green Urban complex, Phase IV was purported to be cancelled on the ground that his wife Sm. Manika Sarkar was already in possession of a flat at the Golf Green urban Complex and according to the Board's Rule, only one flat could be allotted to one person or more than one person jointly belonging to the same family and the family would mean husband, wife dependent parents and children. The petitioner has contended, that the terms and conditions for allotment of the flat by the West Bengal Housing Board appear in Chapter II Rule i. A. printed and published in the Brouchure of the West Bengal Housing Board. The said rule runs as follows : -