Re: I.A. No. 01 of 2019
1. Heard Shri Ajay Prasad, learned counsel for the appellant and Shri T.N. Mattin, learned senior counsel for the respondent-petitioner.
2. We have considered the affidavit filed in support of the delay condonation application and we find that sufficient cause has been shown to condone the delay in filing the appeal. The delay is condoned and the appeal shall be treated to be within time.
3. I.A. No. 01 of 2019 stands allowed accordingly.
Re: L.P.A. No. 605 of 2019
This appeal questions the correctness of an interim observation made by a learned Single Judge in the impugned order dated 9th April, 2019 in C.W.J.C. No. 12061 of 2012 in a dispute relating to the execution of a deed of a plot that was allotted by the Housing Board in the name of late Parwati Devi who is the maternal grandmother (Nani) of the respondent-petitioner Sweta Kumari and is also the mother-in- law of the appellant who is stated to have been separated by a judicial order from his wife on 22nd March, 1997.
2. The facts lie in a very narrow compass, and even though a preliminary objection has been raised with regard to the maintainability of the appeal, we find it expedient and in the interest of justice to entertain the same as would be evident from the narration hereinafter.
3. There are certain facts which are undisputed namely that the appellant Nitya Nand Prasad Gupta was married to Dr. Kiran Kumari who is the mother of Respondent No. 9. The appellant, therefore, admittedly is the natural father of the Respondent No. 9.
4. It appears from the facts brought on record that Parwati Devi had applied before the Housing Board for a plot of land that was allotted to her and she had made the initial payments for such allotment. Not only this, the allotment application and the deposits made are on record and against Column 11 the following declaration by way of nomination has been made by Parwati Devi:
5. The respondent-petitioner in Paragraph 21 categorically states that Parwati Devi admittedly died on 23 rd of October, 1993. The appellant claims that he has succeeded to the estate of late Parwati Devi under a Will dated 29th of January, 1993.
6. In Paragraph 19 of the writ petition it has been categorically stated that the mother of the respondent-petitioner divorced the appellant for which a decree was passed on 22 nd March, 1997. This fact which has been stated in Paragraph 19 has not been denied and rather it is stated that the said paragraph is a matter of record. Apart from this, in Paragraph 20 a clear assertion has been made that the mother of the respondent- petitioner started residing separately since 1991 and this fact also has not been denied by the appellant in his counter affidavit.
7. It is in this background that the respondent writ-petitioner asserts that by virtue of the nomination she inherited the property in question and was entitled to get her name entered in place of her late maternal grandmother. It is also asserted by the respondent-petitioner that she moved a representation before the Housing Board whereafter certain deposits were made but the Housing Board did not execute the deed of transfer in her name.
8. In between the appellant has alleged to have filed an objection before the Housing Board on 10 th of March, 2014 in relation to the claim of nomination by the respondent- petitioner. The appellant also instituted probate proceedings on the basis of the Will on 5th of March, 2010. The said probate proceedings after contest has been converted into a Title Suit and is pending consideration before the court of competent jurisdiction.
9. It is in this background of the relationship of the parties as also the transaction of the property that the respondent-petitioner filed the writ petition giving rise to this appeal praying for a direction to the Housing Board to execute the deed in favour of the respondent-petitioner over Plot No. 2H/109, Bahadurpur, Patna.
10. A counter affidavit was filed by the appellant and the learned Single Judge made the impugned observation which is under challenge in this appeal whereby the learned Single Judge directed the Board to take appropriate steps and file a counter affidavit and also observed that the Court did not find any impediment in the execution of the deed in favour of the petitioner as there was no restraint or stay order in the probate proceedings/title suit. Admittedly, the Housing Board has now executed the deed in favour of the respondent- petitioner and an affidavit to that effect has been filed.
11. Shri Ajay Prasad, learned counsel for the appellant contends that this being a private dispute with regard to transfer of property, the writ petition itself was not maintainable and no such observation could have been made that too even at the interim stage without there being any final order being passed by the Court. He submits that in spite of the fact that the affidavits had been exchanged between the parties, the learned Single Judge instead of finally disposing of the matter made an observation on the basis whereof the Housing Board has now executed the deed and the action according to him stands vitiated as no such direction had been issued by the learned Single Judge and even otherwise the Housing Board could not have passed the order or executed the deed in the wake of the pending probate proceedings. For this, Shri Prasad has relied on the circular of the Bihar State Housing Board dated 27th April, 2009 that has been filed along with the supplementary counter affidavit of the Respondents No. 2 to 8. Clause 2 of the said circular is extracted hereinunder:-
12. It is, therefore, submitted that according to the circulars no such transfer could have taken place and the deed could not have been executed in the wake of the pendency of the probate case.
13. He also submits that this transfer of property by way of an interim mandamus also cannot be sustained as a writ cannot be issued for the transfer of a property from one private person to another.
14. Replying to the aforesaid submissions, Shri Mattin, learned senior counsel submits that the learned Single Judge had only made an observation and even otherwise the deed executed itself recites that the transfer deed would be subject to the outcome of the litigation between the parties. He, therefore, contends that firstly there is no vested right or even an accrued right in favour of the appellant which gets affected and consequently the direction and the observation made by the learned Single Judge does not call for interference. He further submits that the rights of the parties are preserved by the doctrine of lis pendense and consequently the deed which has been executed cannot be faulted on that count.
15. Shri Mattin has further relied on the Bihar State Housing Board (Management and Disposal of Housing Estates) Regulation, 1983 to contend that the writ petition was very much maintainable for a direction to the Housing Board keeping in view the fact that the definition of the word "Nominee" under Regulation 2 (xxiii) and in view of the specific nomination of the respondent-petitioner which remains unchallenged from 1993 to 2014, the Housing Board was under an obligation to have carried out the effect of nomination made by late Parwati Devi. He, therefore, submits that the circular as relied on by the learned counsel for the appellant would not be applicable, inasmuch as, the appellant is yet to obtain a declaration of his title on the basis of the alleged Will which has not yet been proved nor any relief has been granted by the Probate Court. It is, therefore, submitted that the circumstances in which the deed came to be executed in no way prejudices the rights of either of the parties and rather the interim observation amounts to the issuance of a direction that is statutorily protected. Consequently, no interference is called for with the impugned order and even otherwise in view of the aforesaid background the writ petition itself can be disposed of on the basis of these pleadings.
16. We have considered the submits raised. The first issue with regard to the maintainability of the writ petition deserves to be taken notice of. It is correct that a writ purely for the enforcement of private rights particularly with regard to succession and property may not be maintainable straightway before this Court before having approached the appropriate forum and which in the instant case has already been availed of by the appellant by approaching the competent court for a declaration in his favour, but at the same time, a writ for the enforcement of a statutory obligation cast upon a Government Corporation or a body like the Bihar State Housing Board which is governed by statutory provisions would definitely be maintainable. In the instant case, the prayer made by the respondent-petitioner to the Housing Board was for giving effect to the nomination in terms of the regulations referred to hereinabove. We are, therefore, of the opinion that a writ petition to that limited extent for a direction to the Housing Board to consider the request for execution of the deed on the basis of nomination was maintainable.
17. The next question is with regard to the objection raised by the learned counsel for the respondent- petitioner about the maintainability of the present Letters Patent Appeal. It has been urged by Shri Mattin that the impugned order is a mere observation and is not a final adjudication and, therefore, it does not fall within the definition of the word "Judgement" as used in Clause 10 of the Letters Patent of the Patna High Court.
18. We are unable to agree to this proposition for the reason that it is settled by now that a writ if filed for a particular relief is sought to be disposed of at the interim stage by granting almost what is claimed as the final relief then a Letters Patent Appeal would be maintainable and such an exercise by a learned Single Judge would definitely fall within the definition of the word "Judgement" to make the appeal maintainable under Clause 10 of the Letters Patent of the Patna High Court. The order dated 9th April, 2019, which is impugned herein, the learned Single Judge after exchange of affidavits made an observation that he did not find any impediment in the execution of the deed and also called upon the Housing Board to execute the deed. This, in our opinion, was virtually granting the final relief as claimed by the respondent-petitioner by way of an interim observation and consequently, this appeal is very much maintainable.
19. Now coming to the question as to whether the execution of the deed ultimately by the Housing Board can be faulted with, we find force in the submission of Shri Mattin that the 1983 Regulations as framed are bound to be adhered to by the Housing Board. We can gainfully extract Regulation 2 (xxiii) hereinunder which clearly indicates that a nominee is a person who is nominated by the hirer to be the hirer.
"2(xxiii) "Nominee" means a person who has been nominated by the hirer to be the hirer and to be the person to whom rights and liabilities in the property shall be passed on in the event of his demise or similar contingencies."
20. The nomination of the respondent-petitioner by Parwati Devi in her declaration remained undisputed for long, rather an objection was taken by the appellant late in the year 2014 on the said nomination. Consequently, the document executed under the signatures of Parwati Devi nominating the respondent-petitioner on record therefore, has to be accepted subject to, however, any decision in dispute about the said property by the appellant.
21. So far as the claim of the appellant that the circula
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r of the Board of the year 2009 would be applicable, we find that the said circular is in relation to a property which is subjected to probate proceedings. In the instant case, it is the appellant himself who has approached the Civil Court for grant of probate and so long as a probate is not granted or any restraint order is passed, the statutory obligation of the Housing Board to give effect to a nomination cannot be impeded with. We, therefore, find that the execution of the deed pursuant to the nomination does not suffer from any legal infirmity, but it shall remain subject to the outcome of the litigation between the parties before the Civil Court. It is worth mentioning the appellant is contesting the rights of his own daughter who was nominated to receive the property on the death of her own maternal grandmother. 22. In the background aforesaid, and for the reasons recorded hereinabove, we find it necessary that the curtain on the proceedings deserve to be drawn and, therefore, the writ petition filed by the respondent-petitioner also deserves to be disposed of simultaneously along with this appeal. 23. We accordingly dispose of this appeal as well as the writ petition subject to the directions and observations hereinabove. A copy of this order be placed on the record of the writ petition.