JUDGMENT :

Apurba Sinha Ray, J. :

1. The Housing Board commenced a project under the name and style of Eastern High, New Town, at Kolkata, which offered allotment of flats on the basis of a lottery. The respondent No. 1 Smt. Saroj Shah applied for allotment of a type C flat at Eastern High at New Town and paid a sum of Rs. 2,00,000/-as application money. A provisional letter of allotment dated 23.04.2008 for one HIG-C Type flat was issued in favour of the respondent No. 1 Smt. Saroj Shah on certain conditions. On 24.07.2008 the appellant issued a letter informing the writ petitioner/respondent that there would be a delay in completion of the said project and the same is expected to be completed by December, 2009 instead of December, 2008 as proposed earlier. On 20.10.2009 the appellant issued a letter to the writ petitioner/respondent no. 1 asking her to inform whether she had submitted payment particulars to the office of the appellant. On 06.11.2009 the writ petitioner/respondent submitted a representation before the Appellant Board requesting the Board to allow her to deposit the allotment money with penal interest if any. The appellant Board cancelled the provisional allotment in favour of the writ petitioner for non-payment of allotment money and informed the same to her by sending a letter dated 11.12.2009. The writ petitioner made a representation on 23.12.2009 to the Appellant Board for recalling the cancellation letter dated 11.12.2009. On 29.03.2010 the Appellant issued a memo refusing to allow the petitioner to deposit the allotment money. On 14.05.2010 the writ petitioner filed Writ Petition no. 672 of 2010 and after hearing the parties the Learned Single Judge allowed the writ petition on 10.06.2022.

2. In allowing the writ petition, Learned Single Judge has been pleased to hold, inter alia, that the contention of the Appellant Board regarding issuance of the letter dated July 24, 2008 erroneously in favour of the writ petitioner cannot be sustained in law as the same is clearly an outcome of afterthought. The Learned Single Judge has further held that as by the letter dated July 24, 2008 the Appellant Board extended the time for completion of the construction in the project and waived the payment of penal interest on default of the stage wise payment, the time became no more essence of the contract for making payment of consideration for said flat. The Learned Single Judge was also pleased to hold that as the writ petitioner had the scope of paying the balance amount with penal interest after 120 days from the scheduled date of payment, and as the said communication dated July 24, 2008 in fact altered and/or modified the original terms under the contract entered into by and between the parties, therefore the Housing Board could not take the plea that time was the essence of the contract any further. The Learned Judge has also pointed out that when the writ petitioner by her letter dated November 4, 2009 had agreed to pay penal interest on the allotment money, the cancellation of allotment at the instance of the Appellant Board on 11.12.2009 even before the expiry of the extended period for completion of the project as stipulated in the said communication dated July 24, 2008, was clearly wrongful and arbitrary. According to the Learned Single Judge, the Writ Court sitting in equitable jurisdiction while adjudicating a writ petition should also balance the equity between the parties, in an appropriate case. Had the allotment of the said flat not been cancelled, the petitioner would have had to pay the entire consideration in or about December 2009 for taking possession of her flat.

Even though the Housing Board had waived the payment of penal interest, it could have received the entire consideration from the petitioner at least in or about December 2009 or contemporaneously immediately after completion of the housing project. Accordingly, the writ petitioner was directed to pay the balance consideration in terms of all