Mobile View
Main Search Advanced Search Disclaimer
Cites 12 docs - [View All]
Article 226 in The Constitution Of India 1949
Article 14 in The Constitution Of India 1949
Sanjay Place Group Housing ... vs Agra Development Authority And ... on 24 March, 1992
Bareilly Development Authority & ... vs Ajai Pal Singh & Ors on 17 February, 1989
Hanuman vs State Of Rajasthan on 25 November, 1993

User Queries
Rajasthan High Court
Rajasthan Housing Board And Ors. ... vs Awasan Mandal Parijat Uncha ... on 8 August, 1995
Equivalent citations: AIR 1996 Raj 47, 1996 (1) WLC 10
Author: Palli
Bench: A Ravani, P Palli



JUDGMENT

 

 Palli, J. 

1. These Special Appeals have arisen out of the judgment and order passed by the learned single Judge of this Court dated November 16, 1992 disposing of three writ petitions by a common order.

2. Three Writ Petitions were filed by the allottees of the Rajasthan Housing Board laying challenge to the demand notices issued to them by the Board raising the price of the houses. In all these three Writ Petitions the allottees belong to higher income group.

3. There was a scheme framed by the Board existing earlier and it was known as Kalpataru Scheme. Another scheme was floated known as Parijat Scheme of 1988 and persons who had got themselves registered for allotment in Kalpataru Scheme were given option to convert to Parijat Scheme and this is how in all these three Writ Petitions, it is the Parijat Scheme with which we are concerned and all the applicants in the three Writ Petitions opted and converted their applications into the Parijat Scheme. The petitioners in the Writ Petition No. 1200/92 are in the category of those allotees who applied and were considered in the second quarter of 1988 Scheme. Writ Petition No. 2169/92 is on behalf of those who converted their applications for the third quarter of 1988 Scheme and the petitioners in the Writ Petition No. 3169/ 92 are from the fourth quarter of the 1988 Scheme. This Parijat Scheme of 1988 would hereinafter be referred to as the Scheme.

4. The grievance in all the three Writ Petitions was against the issuance of notices issued by the Board enhancing the price of the houses. There is no dispute as to the allotment and the price of the first quarter of the Scheme. The learned single Judge in view of the common facts and common law points involved proposed to dispose of all these three Writ Petition referred to above by a common judgment and order. The Writ Petitions were partly allowed and the allottees of second, third and fourth quarter of 1988 Scheme were granted relief in so far as the rise in the price in respect of the land was made. So far as the charging of enhanced cost of construction and other incidental charges such as administrative charges were concerned, the claim of the Board was upheld, in respect of the cost of the land, the learned single Judge has held that increased cost of land could not charged from these allottees of second, third and fourth quarters of the aforesaid Scheme and they have to be charged at the same rate at which applicants of first quarter of the Scheme were charged. It was held that the cost of the land had been increased arbitrarily and could not be allowed to stand in view the costing principles framed by the Board.

5. Dis-satisfied with the judgment and order of the learned single Judge, three separate appeals have been filed by the Rajasthan Housing Board. Three appeals have been filed by the petitioners-allottees challenging that part of the judgment whereby relief towards the cost of construction and other charges was declined.

6. In view of the common facts and common questions of law arising in all these appeals the same are proposed to be disposed of by a common judgment and order.

7. In order to meet the acute housing problem the Rajasthan Housing Board came to be established to help the public at large to have built up/semi built up houses at no profit and no loss basis and for that purpose a number of schemes continued to be floated by the Board from time to time. Kalpatru 'Scheme was floated and the applicants who had initially applied under this Scheme were permitted to opt and convert their application into 1988 Parijat Scheme. Initially the price was fixed at Rs. 1,40,000/- which was latter enhanced to Rs. 1,60,354.34. This allotment was made on 28-1-1991. This total cost was for a skeleton house and the applicants in that category of the first quarter paid the price demanded and on that score there is no dispute. The allottees of the second quarter contend that the houses were allotted to them at the same time along with the allottees of the first quarter but they were not given possession of the houses for one reason or the other. The houses for the second quarter were almost ready at that time and in the process the price to be paid by them was enhanced to Rs. 2,14,126/- and with respect to third and fourth quarters the price was enhanced to Rs. 2,40,544/- (Both these price were later on reduced during pendency of the Writ Petition). The admitted position is that the houses to the applicants of the second quarter were allotted some times in the month of December, 1991. The applicants of third and fourth quarter were allotted houses in the year 1992. The grievance raised by the allottees of the second quarter is that since the land had been utilised at one point of time and the houses in their category were also complete simultanes-ouly with the construction of houses in the first quarter of the Scheme, therefore, there could not be made any increase either in the cost of the land or in the cost of construction. There was no explainable reasons for the delay in the delivery of possession and for that the blame has to be on the Board and not on the allottees. All these applicants in the above said Scheme had initially deposited Rupees 10,000/- each as the registration amount and each one of them further deposited an amount of Rs. 20,000/- each towards the first instalment of the Scheme. It was further said by the allottees that under the brochure issued for the purpose of the Scheme an assurance was given that the houses would be provided to the applicants within a period of two years and they would be charged a given price as indicated. This price was composed of the land cost, development cost, other incidental charges, administrative charges and the cost of construction. This is not denied that under the Provisions of the Scheme it was laid down that the Board would calculate the cost when the possession is offered and in case there was increase the allottee would be asked to pay the same. Notifications were displayed in respect of the persons who had deposited the instalments under the Parijat Scheme and objections were invited and, thereafter, a final list was published in respect of the persons who had deposited all the instalments under the Scheme of the first and second quarters and it was thereafter that the Rajasthan Housing Board proceeded towards the delivery of possession of these houses.

8. By impugned notices the applicants of the second quarter of the Scheme were conveyed that the total cost of the houses allotted to them in skeleton shape would be Rs. 2,14,125/- and they were directed to have their possession by 9th March, 1992. They were intimated that the possession could be delivered to them on deposit of the remaining amount found due against them. In respect of the applicants of the third and fourth quarters a notice was issued to them that the total cost of the skeleton houses has been fixed at Rs. 2,40,544/- and they too likewise were asked to deposit the amount due against them in order to enable the Board to deliver possession to them. It was the case of the allottees of the second quarter that an amount of Rs. 38,178/- was charged as cost of the land, Rs. 1,16,972/- was charged as cost of construction and Rs. 5,204.34 as other incidental charges from the allottees of the first quarter but in respect of the applicants of the second quarter of the Scheme the cost of land was raised to Rs. 72,765/- and the cost of the construction to Rs. 1,34,085/- and other incidental and administrative charges were also raised to Rs. 7,275.95.

9. In respect of the allottees of third and fourth quarters the price in respect of land cost remained same, i.e., Rs. 72,765/- but the construction (cost) was raised to Rupees 1,59,985/- and Rs. 7,794/- as other incidental charges. The allottees of third and fourth quarters also allege that the houses allotted to them were also ready along with the houses of first and second quarters and there were no extra charges incurred in respect of the cost of the land or construction and further that there was no justification for enhancing other incidental charges and administrative charges and, thus, this enhanced amount could not be recovered from them. An instance was quoted in respect of the houses allotted in Udaipur and it was said that the price there had been reduced and, accordingly the petitioners were also entitled to be given the same treatment. It was further stressed that contract for building houses of the Scheme was given to the same contractor at the same rates and the land in respect of third and fourth category having been purchased in one go and at the same time and areas covering their houses having been demarcated at one point of time and all these houses being situated in the same locality, no extra amount could be charged from them than what was charged from the allottees of the first quarter. The Schemes floated by the Housing Board were aimed at no profit and no loss basis, the petitioners could not be put to a disadvantageous position and, therefore, the demand raised by the Board was wholly unjust and arbitrary.

10. A contention was raised before the learned single Judge that though in the Brochures issued for the purposes of the Scheme there is a provision for increasing the price of the land at 12% per year whereas in respect of the applicants under the Scheme the price had been raised almost to 90% and the same deserves to be quashed as unreasonable.

11. On behalf of the Board it was argued before the learned single Judge that the allottees entered into individual contracts and one writ petition could not be filed and was not maintainable. It was also said from their side that the houses were complete as per the terms and conditions of the Scheme and what was being charged from them was actual cost calculated by the Board and that there was no element to earn any profit from the allottees. The right to raise additional demand is justified on the strength of the exercise of rights which the Board possesses in the contract. From the side of the Board a further contention was raised that the Board was fully justified in enhancing the rate as it had been laid down in the Scheme itself that the price would be determined differently from quarter to quarter and the same would be taken into account when the houses are actually offered to the allottees. It was pointed out that increased cost of land amounting to Rupees 72,765 /- which was being charged from the applicants of second, third and fourth quarters of the Scheme was on account of some delay in raising the construction of the houses and development of site and in the meantime there was a spurt in the cost of construction and other development charges which had to be paid by the allottees alone under the conditions laid down in the Brochures issued for that purpose.

11-A. The learned single Judge after taking into account the respective pleas raised by the parties has observed that allotment to the applicants of the second quarter could be made along with the allottees of the first quarter since it has come on record in the form of an affidavit of the Deputy Housing Commissioner that the houses for the first and second quarters were almost ready in Feb., 1991. The allottees of the second quarter could be delivered possession along with the allottees of the first quarter and it was not understood as to how and why the delay was caused in the delivery of possession to them and thus, no different price could be charged from them. The contention was raised by the Board that the cost of land had risen beyond proportion and in open market as compared to 1986-87, but the Board had made the increase based on the calculation of development cost only and was entitled to charge the same from the applicants. It has been observed by the learned single Judge that there was a rise in the cost of land from Rs. 100/ - to Rs..385/- during the period of 5-6 years.

12. A further contention was raised before the learned single Judge on behalf of the Board that in respect of the tenders of the houses of the fourth quarter there was an increase in the rate of contract to 33% above the B.S.R. of 1988 and the cost of construction was 65.57% over and above the cost of 1988 and keeping in view the costing principles there was a price rise in respect of second, third and fourth quarters applicants and, there was thus hardly any question of arbitrariness or discrimination. It was further said that though the houses might have been completed but the final costing had to be done at the headquarters level and letters for delivery of possession have been issued after clearance from the headquarters when the houses were ready for delivery of possession. It was denied that the houses of the applicants of the third and fourth quarters were also ready along with the construction of houses of the first and second quarters. There was almost a delay of one year in delivery of possession to the allottees of third and fourth quarters. It was also denied that houses of the second quarter were complete and ready for the purposes of delivery in February/March, 1991 and that there was no delay in the delivery of the houses on the part of the Board and no additional charge has been levied beyond what it has actually costed.

13. A further fact that deserves to be noticed at this stage is that initially the cost of the house amounting to Rs. 2,14,125,90 was the allottees of the second quarter of the Scheme and after giving a secon thought the Board had reduced this amount to Rs. 2,02,498/- only and, thus, a relief of Rs. 12,000/- already stood allowed to the applicants in this regard. Price of third and fourth quarters initially fixed at Rupees 2,40,544/- was also reduced to Rs. 2,25,601 /-which shows that there was no element of making any profit.

14. The learned single Judge after considering the matter came to the conclusion that persons equally situated could not be treated as unequals and the Board could not be permitted to wriggle out of the rules framed by the Board and as the basic cost of the land was never charged the action of the Board in raising the cost of the land was totally unjustified and, therefore, deserves to be quashed. It was further observed that the land which was utilized for the construction of the houses for all the four categories was utilised for the purpose of construction prior to 31-3-1991 and, therefore, no different cost could be charged from the applicants of the second, third and fourth quarters of the Scheme.

15. In respect of the rise in the cost of the construction, the learned single Judge has held that there is a variation in the cost of construction from the applicants of second, third and fourth quarters of 1988 and as per Condition No. 6 of the Scheme this cannot be permitted to be challenged because it has been specifically mentioned that the cost of the house may be varying in view of the rise in the cost of the material, labour and other administrative charges. It was in the knowledge of the applicants that cost of the houses may vary keeping in view the increase in the cost of material, labour and other charges and the petitioners could not make any grievance so far as the price had been increased towards the cost of construction and other administrative charges. This increase was held to be in sequence with the rules framed on the subject and it was further held that same was in accordance with the shape of costing principles laid down in the notification and, thus, on that count the petitioners were non-suited. It was also held that there were disputed questions of fact and accounting had to be gone into and there is a non-statutory agreement, therefore, writ would not lie. It was also held that the Board was free to charge interest from the allottees on account of late payment of the amount in view of Condition No. 12.8 of the Scheme. The petitions were held maintainable and that the petitioners had the locus standi.

16. Challenging the findings recorded by the learned single Judge, Mr. Shishodia, learned counsel appearing for the appellant-Board contends that the learned single Judge has committed an error in splitting the charges into cost of land, cost of construction and other incidental charges. The offer was in respect of a house which includes the cost of land and thus there was no justification in bifurcating the price. It is next contended that the writ petitions as framed and presented by the petitioner was not maintainable as the petitioner is neither a registered Society nor a juristic person nor all the allottees have been joined as petitioners. There is no authorisation on behalf of all the allottees in favour of the petitioner-Society. It is also pointed out that some of the petitioners are not even allottees and have been joined in the petition. The learned counsel proceeds to contend that it was a non-statutory contract and was rightly held so by the learned single Judge and, therefore, no writ petition could be maintained in contractual matters and again the questions involved in the petition were highly disputed and further required appreciation of evidence, besides going into intricate accounting. Learned counsel appearing for the Board proceed to submit that the land cost as arrived at by the learned single Judge would not mean simpliciter as actual cost of the land. In fact, the cost of land is to be arrived at when the same is developed for the purpose and would include all such cost which is incurred towards its development. It is further submitted that under the Scheme the allottees of each quarter are a distinct class and a distinct category and Clause (6) specifically provides that for each such quarter price -would be determined separately. It is further said, that in the Scheme it has been clearly stated that it was the approximate cost and actual cost would be finalised on the completion of the Houses and the difference would be charged from the allottees. The final cost, according to the learned counsel, under the terms and conditions of the Scheme had to be arrived at and then forwarded to the Head Office and after approval the notices are issued to recover the amount as determined for such quarter. The learned counsel submits that the learned single Judge has committed an error in holding that the land for all the four categories had been utilised at one point of time and, therefore, different price could not be charged from the allottees of the second, third and fourth quarters. The learned counsel submits that the recommendation made by the Deputy Housing Commissioner has been taken undue notice of by the learned single Judge. It was only a recommendation and the same could or could not be accepted.

16-A. In appeal, the appellants have placed on record calculations arrived at by the Board for charging the increased cost of land and it has been stated that the same may be looked into, it would justify the stand of the Board in raising the price of the land. It is next said that the Houses in their periodic quarters were never ready at one point of time and the price was assessed keeping in view the financial years 1990-91 and 1991-92. Mr. Shishodia then points out that the allottees have no vested right in seeking a direction from this Court to obtain a particular house at a particular fixed price. No such right is shown to exist and, therefore, the writ petitions were straightway liable to be dismissed, moreover highly disputed questions were being raised.

17. Mr. Lodha, learned counsel appearing for the allottees in these appeals submits that the cost of the tenement originally assessed for all these houses was Rs. 1,40,171/- and in the reservation letter issued in March, 1989, this price was again confirmed and it was further made clear that the first instalment would be towards the cost of the land. The learned counsel, of course, concedes that this price was only the approximate price, but contends, the same could not be raised disproportionately and that too without any basis. The learned counsel admits that the price in respect of the allottees of the first quarter was raised and they were charged at Rs. 1,60,000/- as per Ex. 15 of the paper book.

18. In the year 1990, fresh brochure was issued under the Scheme and the price was indicated at Rs. 1,65,000/-. A second thought was given and ultimately the cost was fixed at Rs. 1,60,000/-. It is said that the cost of the land in the year 1990-91 was Rs. 202/- per sq. metre and on the basis of principles of costing framed by the Board, the amount could be increased for the next year maximum at the rate of 12%, but in the present case, the allottees were being charged at the rate of Rs. 385/- per sq. metre. This amounts to discriminatory and arbitrary treatment. The learned counsel submits that there is no explanation from the side of the Board as to how the rate has been increased and on that method the same had been arrived at. Mr. Lodha points out that the Board has placed on record of the appeal a statement arrived at by the Board in order to justify the increase, but the same could not be looked into as it has been done to fill up a lacuna. It may be pointed out here that we have as yet passed no order to take these documents on record and we do not propose to look at them.

19. Mr. Lodha submits that the learned single Judge rightly arrived at the conclusion that the allottees of the second, third and fourth quarters are to be treated on the same pattern in which the allottees of the first quarter were treated. Land was utilised at one point of time and no further amount was spent on this. It is said that arbitrary enhancement in respect of the cost could be challenged and this Court will not refuse to interfere even in contractual relations when the authority violates Article 14 of the Constitution of India. According to the learned counsel, the action of the Board in raising the price was unreasonable and unjust and the same was liable to be struck-down.

20. After having given our careful consideration to the arguments raised by the learned counsel appearing for the parties, we find that the judgment and order passed by the learned single Judge cannot be sustained.

The learned single Judge proceeded to nonsuit the allottees in respect of the enhancement in the price regarding cost of construction, administrative and incidental charges on the ground that it was a non-statutory contract and allottees could not be permitted to challenge the variation in the cost because the same involves accounting and for this purpose the writ petition was not the proper remedy. It was further held that the accounting of the cost of construction and other charges raise a number of disputed questions for which a civil suit could be the proper remedy.

21. It is not understood as to how the relief could be split up in respect of the cost of construction and other incidental charges and the cost of land. In our view, the split up could not have been made. The cost of the house would include the cost of the land and all other incidental development charges around and further utilization of land at one point of time which in the present case is not so, but assuming could not be held to be the basis for holding that the Board under no circumstances could increase the price in respect of second, third and fourth quarters. We find from the record that the houses were allotted to the persons coming in category second, third and fourth at different points of time and in different financial years and it was only when the houses were actually ready for delivery of possession, the actual cost had to be processed and worked out and, thereafter, on increase having been found, the same was held to be recovered from the allottees.

22. The learned Single Judge has thus gone wrong in using two yard-sticks in respect of a composite unit.

23. It would be useful to make it clear here at this stage that the price of the land worked out for the first quarter was Rs. 38,178/- and the same was increased to Rs. 72,768/- in respect of the allottees of the quarters in dispute. The appellant-Board before us is aggrieved only against the order to the extent whereby the writ petitions were partly allowed in so far as the cost of the land in question is concerned. The learned single Judge has, of course, taken into account the costing principles, but appeal to have overlooked the Rules. The basic analysis for arriving at the cost of the house have to consist of (i) land cost, (ii) development cost, (iii) cost of construction, (iv) direct charges, such as expenditure on establishment, (v) charges on quality control equipment and laboratory management besides other charges of establishment for regular staff deputed for various projects. The learned single Judge appears to have gone wrong in observing that each of these ingredients were independent of each other. Focus was fixed on Rule 4.1 which deals only with the cost of undeveloped land. As we understand this would mean only the cost of land for which compensation is paid against any structure or building works (sic) trees including interest etc. A further amount of Rs. 30% extra is added to cover up legal obligations. Rule 4.1.5 provides that the cost of land for the next year and subsequent years would be arrived at after adding 12% interest per annum and the interest would be calculated and computed annually. We are further of the opinion that the cost of land could not be split up and bifurcated from the cost of construction and other incidental charges because it was the price of the house including of the cost of land which was offered for allotment. It must not be forgotten that the cost of the developed land would also include the cost of roads, water pipes, sanitary lines and electric fitting, which are inseparable and are component units for the purpose of developing the land. For example, we find from the record that installation of water pipe-lines costed Rs. 10/-per sq. metre in 1986 and cost had risen to Rs. 110/- in year 1992. Likewise there was steep rise in the electricity lines and equipment.

24. We also cannot lose sight of the fact that the Scheme provides for various facilities and amenities like provisions of Schools, Hospitals, Dispensaries, Community Centres, Post Office, Police Stations, Open spaces for Parks etc. and the land which is being put to use for these purposes is required to be free and is not available for sale, therefore, to determine the cost of land, these factors have to be noticed. Rule 4.1.2 provides that 50% of the total area is to be left out for services to the public and the rest 50% is converted for use of residential houses.

25. We also find from the record that the second quarter though completed somewhere in Feb., 1991, was not fully developed and it was without electricity and water and, therefore, the cost of the first quarter could not be equated with that of the second quarter and likewise with the third and fourth quarter. Letters for possession were issued in March 1991 in respect of the first quarter and for the second quarter these were issued somewhere in December, 1991. Thus, there was a gap of about 9 months and final costing for the second quarter was done in the financial year 1991-92. The period of final costing was thus different and, therefore, the cost of land at the same rate could not be fixed for these quarters. Again, if we look at the allotment of third and fourth quarter, the draw was held somewhere in November, 1991 and formal letters of possession were issued in February, 1992. It could not thus be said that the land utilised for construction of house for second, third and fourth quarters is to be fixed at the same rate at which the price was calculated in respect of the first quarter.

26. To make the things more clear, the costing principles are reproduced hereunder, which formed factors for the purpose of calculating the cost of land :

"(3) These principles shall be applicable with effect from 1-4-1988, and the costing for the houses allotted after 1-4-1988 or for the houses allotted before 1-4-1988 but for which costing had not been finalised, shall be finalised on the basis of these principles.

(4) Basic Cost/Direct Cost Basic cost of the houses shall consist of the following:--

i) Land cost.

ii) Development cost.

iii) Cost of construction.

iv) Other Direct Charges -- Such as expenditure on work charged establishment.

v) T and P Charges -- Expenditure on Quality Control equipments.

vi) Laboratory Management -- Other than the establishment charges for regular staff deputed for quality control.

(4.2) Cost of Development:

4.2.1. The cost of development shall include the following :--

a) Levelling, dressing of the ground;

b) Construction of bituminous roads;

c) Cost of drains and culverts;

d) Cost of Water Supply Lines;

e) Cost of electric lines;

f) Cost of sewer lines;

g) Cost of street lights;

h) Cost of plantation and arboriculture; and parts

i) Misc.

Besides the above, cost of construction for the following Community Facilities (as per the 137th Meeting of the Board) shall also be included :--

a) Primary School Building;

b) Higher Secondary School Building;

c) Dispensary/ Health Centre; and

d) Community Centre.

4.2.4. Cost of development land Cost of development land shall be the sum total of cost of land and the cost of development as determined in para 4.1.3 and 4.2.3.

4.2.5. Cost of developed land, as determined initially as above, shall be valid up to the end of the particular financial year, in which it has been finalised, i.e. up to the end of the month of March for the particular financial year.

4.2.8. Cost of land and development shall continue to be worked out for three years in the way explained above, from the year for which it was first finalised.

As it was based on the expenditure already incurred and to be incurred in future, as such after three years the land and development cost shall again be worked out with the actual expenditure. If the actual expenditure is more than the rate being charged then the rate for developed land shall be increased accordingly. If there is saving then no general increase shall be made."

26-A. It would be useful to make a mention of the conditions as they are contained in the Scheme in question. The relevant conditions are 4, 6, 12.4 and 12.8, which are reproduced hereunder:--

4&iathdj.k    v& ikfjtkr ;kstuk ds vUrZxr iathdj.k dHkh Hkh djk;k tk ldrk gS A edku dh ykxr izR;sd =Sekl ds fy, r; dh tk;sxh A 1988 ds izFke =Sekl esa yxus okyh ykxr ifjf'k"V&2 esa nh tk jgh gS A vosndksa dks blh ykxr dks ns[kdj ykxr ewY; tek djkuk gksxk A    c& ikfjtkr ;kstuk ds vUrxZr izFke fd'r % ikfjtkr izFke ds vkosndksa dks vk; oxZ fuEukuqlkj jkf'k ifgyh fdLr ds :i esa nsuh gksxh %& mPp vk; oxZ                                        20]000:-

e/;e vk; oxZ&c                                     10]000 :-

e/;e vk; oxZ&v                                     5]000 :-

mijksDr jkf'k rFkk iwoZ esa tek djkbZ xbZ iathdj.k jkf'k ds lek;kstu ds ckn vkosnd }kjk ifjf'k"V&2 ds vuqlkj 'ks"k jkf'k pkj v/Zkokf"kZd fd'rs tek djkbZ tk;sxh A    6- bl ;kstuk ds varxZr iathdj.k iwjs o"kZ [kqyk jgsxk rFkk izR;sd =Sekl ds fy, edku dh ykxr dk fu/kkZj.k vyx ls fd;k tkosxk A vkosnd ds edku dh ykxr ogh yh tk,xh] tks ml =Sekl ds fy, ftlesa fd mlus vkosnu fd;k gS r; dh xbZ gS A ;g blfy, Hkh vko';d gS fd fuekZ.k lkekxzh ,oa etnwjh dh njs fujUrj c< jgh gS vr% edku dk eqY; yEcs le; ds fy, iwoZ esa fuf'pr ugha fd;k tk ldrk gS A    12- vU; 'krsZ    12- 4 vkokl dk dCtk lkSaius ls iwoZ vkokl dh vfUre :i ls r; dh x;h ykxr ij vo/kkfjr 's"k ewY; tek djkuk gksxk ftlds fy, vkoVau dCtk i= eaMy }kjk tkjh fd;k tk,xk A vkoaVh bl jkf'k dks vkoaVu@dCtk i= tkjh gksus dh rkjh[k ds ,d ekg ds vUnj tek djk;sxk A tkjh fd;s x;s vkj{k.k i= esa Hkqxrku dh fuf'pr frfFk;ksa ds ckjs esa lwpukk nh tk,xh A**    12- 8 eaMy ;Fkk laHko edkuks dh ykxr mijksDr ;kstuk esa nh xbZ ykxr ds vUnj j[kus dk iz;kl djsxk] ijUrq fQj Hkh ;fn bl ykxr esa dksbZ c<ksrjh gksrh gS rks eaMy bl c<h gqbZ jkf'k ij mPp vk; oxZ ds fy, 16 izfr'kr ,oa e/; vk; oxZ ds fy, 15 izfr'kr dh nj ls C;kt ysxk A ;g C;kt cukus essa yxus okys le; ds vuqikr esa c<h gqbZ ykxr ds vuqlkj fy;k tkosxk A

27. Condition No. 4 provides that the price of the house shall be calculated and fixed after every quarter. Condition No. 6 makes fully clear that the cost of the house cannot be given much in advance as the cost is ever rising and thus the same will be calculated at the time when the houses stand completed. Again, the Condition No. 12.4 provides that it would be at the time of making the delivery of possession of the House that the final cost of the house would be determined and the remaining amount, if any, shall have to be deposited by the allottees and only thereafter possession letters will be issued by the Board.

28. In view of this position, the allottees just could not be heard to say that they were not prepared to pay the enhanced cost and seek a mandamus that they too be equated and charged at the same price at which the allottees of the first quarter were charged.

29. We also cannot lose sight of the fact that these Institutions have been established to help the citizens of this country to have houses at no profit and no loss basis. Nothing has been brought on record to show that there is any element of profit at any stage in the calculation of cost, rather on the other hand, the prices were reduced during the pendency of the writ petition, which shows that the attitude and conduct of the Board was not to earn profit out of the Scheme. Again, the weaker sections of the Society have also to be provided houses sometimes at subsidised rates. In such a situation, if the allottees in the higher income group have to pay a little more, the same cannot be held to be discriminatory or arbitrary. How can a mandamus be granted that a particular house has to be allotted at a given price, which according to the petitioner, has to be calculated in the manner he desires. The Board is charging only the additional cost. Under the terms of the contract, the Board, is authorised in exercise of its powers to enhance the price after the calculations are finally arrived at. It is not a case where the Board has concealed anything or committed fraud on the applicants or that there was a mistake in the publication of the Brochure or they were kept in dark. These Housing Board Institutions have no funds of their own and to build houses they have to raise heavy loans from Banking and other Financial Institutions at very heavy rate of interest. These Institutions, as we see, are always deficit ridden. Unless something could be pointed out which would make the decision of the Board highly arbitrary this Court would not interfere.

30. After looking at the record, terms and conditions of the Scheme and the costing principles, we do not find that the allottees have been able to make out any case for interference in the writ jurisdiction.

31. It may also be observed that there is no difference in the land cost in so far as the allottees of second, third and fourth quarters are concerned. The enhancement is only in respect of the cost of construction and other incidental charges.

32. A few decisions on the point also need to be noticed.

33. In Premji Bhai v. Delhi Development Authority, AIR 1980 SC 738, which is almost the first decision on the subject, the question raised was that the Authority was bound to offer flats income group wise according to same price formula in respect of situation, location and price fixation. Their Lordships of the Supreme Court held that the price of land, building material, labour charges and cost of transport, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation. Their cost varies timewise, place-wise and availability-wise. All these uncertain factors cannot be overlooked for the purpose of classification. It was ruled in this case that while determining price of flats, the Authority acts purely in executive capacity. In contractual field, relations are not governed by constitutional provisions. There was thus no question of violation of the provisions of Article 14 of the Constitution of India and the writ jurisdiction was not intended to facilitate avoidance of obligations voluntarily incurred.

34. Hon'ble Supreme Court of India in Bareilly Development Authority v. Ajay Pal Singh, AIR 1989 SC 1076 held that the State while entering into non-statutory contract, rights of the parties inter se are governed by the terms of the contract and not by constitutional provisions. In that case also, there was increase in the cost of house by the Development Authority and by looking into the Brochure, which indicated estimated costs and other terms of allotment, it was found that under the conditions the actual cost would increase or decrease as indicated in the Brochure and increase in the cost of houses by the Development Authority could not be labelled as arbitrary or discriminatory by applying Article 12 of the Constitution of India.

35. In Tarun Kumar Chhabra v. U. P. AwasEvamVikas Parishad, AIR 1991 All 99, the Division Bench of the Allahabad High Court while dealing with the identical question has held that the applicants for allotment were given the Brochure containing terms and conditions relating to allotment of House. A contract thus came into existence on allotment and it was a non-statutory contract. Price was enhanced and challenge was made by way of writ petition and after giving a line of decisions, it was held that the matter was purely contractual and the rights are governed by the terms of the contract, as such, no writ or order could be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple.

36. In a very recent decision the Hon'ble Supreme Court, in Delhi Development Authority v. Pushpendra Kumar Jain (1994) 6 JT (SC) 292, has held that there was no provision of law that mere drawl of lots vests an indefeasible right in the allottee for allotment at the price obtaining on the date of drawl of lots. The price or rates prevailing at the date of communication of the allotment letter is applicable unless otherwise provided in the Scheme and in case the allottees were not willing to accept the allotment at that rate, it is always open to them to decline the allotment. The revision in the land rates in that case was held to be valid.

37. In Sanjay Place Group Housing Association v. Agra Development Authority, AIR 1992 SC 1598, the Hon'ble Supreme Court was dealing with the demand of additional expenditure being raised by the Agra Development Authority in respect of flats and it was found that the additional demand was valid. It was only the profit part of the additional demand which was held to be without any logic.

38. A Full Bench decision of the Andhra Pradesh High Court in Sri Konaseema Coop. Central Bank Ltd. v. N. Seetharama Raju, AIR 1990 Andh Pra 171 has also been brought to our notice. In that case, while dealing with the scope of writ petition in contractual matters, it was held that such a matter could not be enforced by way of writ petition. It was specifically held that a contractual obligation which is not statutory cannot be enforced by way of a writ petition under Article 226 of the Constitution of India.

39. A decision of the Calcutta High Court in Sand Carrier's Owners' Union v. Board of Trustees for the Port of Calcutta, AIR 1990 Cal 176 also needs to be noticed, where in the petition challenge was laid to the enhancement of dock permit fee in respect of vehicles operating inside dock area. That petition was filed by an Association claiming to be Association of truck owners. It was held by the Division Bench of Calcutta High Court that legal personality means persons who are regarded under the law as person being capable of exercising right or having duty have locus standi to move writ application. Unincorporated associations are not legal persons and writ petition is not maintainable at their instance. The Members of such Association may be affected by common order and may have common grievance, but for the purpose of enforcing the rights of the Members, writ petition at the instance of such Association is not maintainable. In law the Association is a different juristic person than that of the individual owner.

40. Mr. Lodha, learned counsel appearing for the allottees has also pressed in service several decisions to support his view point.

41. In Indore Development Authority v. Sadhana Agarwal (1995) 3 SCC 1: (1995 AIR SCW 1613), the Hon'ble Supreme Court has held that arbitrary enhancement of cost was open to Court's interference. We have already held that unless and until something could be pointed out from the record that the action of the Board was arbitrary, the matter could not be looked into. We have already observed that the action of the Board in raising the price does not appear arbitrary or discriminatory. This judgment with utmost respect does not advance the case of the allottees.

42. The next decision cited by Mr. Lodha is reported in Hanuman Prasad v. Rajasthan Housing Board, 1994 (1) WLC (Raj) 255 where the learned single Judge of this Court has held that the Rajasthan Housing Board being a statutory authority if acts in unreasonable or arbitrary manner or against the public interest, the action was liable to be struck down on judicial review. There is no quarrel with this proposition. The name of the petitioner in that case had been wrongly excluded from lottery and thus after appreciating the contention a direction was issued to the Board to allot one house to the petitioner on the same pattern and at the same cost at which the other similarly circumstanced were allotted the sites and it was under that situation it was held that the Board would not charge the increased cost as estimated against the defaulter. This case has thus no application to the proposition at hand.

43. Another decision cited by Mr. Lodha is reported in Vadi and Patwa v. Union of India, AIR 1993 Guj 100. In that case also the action of the State had arisen out of the contractual rights and obligations and it was held that the action of the State has to be just fair and reasonable from the stage of entering into contract to its conclusion. That was a case of a contract given by the Government of India for construction of telephone exchange to the contractor by inviting tenders.

44. Some other decisions have also been cited by the learned counsel for the allottees. These decisions need not to be noticed as there was an element of statutory contract in those cases and it was in that situation it was held that the State action in contractual matters could be reviewed under Article 14 of the Constitution of India.

45. We are further of the opinion that the costing principles could not be made a matter of interference under Article 226 of the Constitution of India. Again, the writ petition could not be filed by the self styled Society jointly as there was a different cause of action to each of the allottees and the petitioner neither being a registered Society nor a juristic person, the petition filed by it was thus incompetent and not maintainable.

46. The jurisdiction vested in the High Court under Article 226 of the Constitution of India is to be used only sparingly and that too only in exceptional cases where there is a violation or infringement of rights of the citizens and further where there is no other adequate, alternate or specific remedy. No case of infringement of any right of the petitioner has been made out.

47. The matter can be viewed from another angle. How would a writ lie in respect of non-statutory contract. The Scheme containing the terms and conditions was too well known to the allottees before they put in the applications for the purpose of registration. It was indicated sufficiently well that the price that was being fixed tentative and approximate and that the final costing would be made at the completion of the houses and the increased amount would be charged from the allottees.

48. We are of the view that the writ petition in the present case was neither maintainable nor competent. We further hold that the petitioner had no locus standi to challenge the action of the Board. We also find that highly disputed questions of fact and accounting were involved in the matter, which just could not have been permitted to be raised in the extraordinary writ jurisdiction of this Court. We also hold that since it was pure and simple a non-statutory contract, the parties to the lis are governed by the terms and conditions laid down in the Scheme. The same could not form a subject matter for interference under Article 226 of the Constitution of India. It is also held that no writ of mandamus could be issued to the Board to allot a particular house to an allottee at a given price or to reduce the price that was being asked for.

49. The writ petitions in our view could be dismissed on these grounds alone without entering into other questions. But since the learned single Judge entertained these petitions and proceeded to examine the matter on merits and partly allowed the petitions, we had to deal with the merits of the case to negative the conclusion drawn on merits by the learned single Judge. Arguments before us were also raised on merits by the learned counsel appearing for the parties and therefore in all fairness we have dealt with their submissions.

50. In view of what has been said above, the judgment and order passed by the Learned single Judge is set aside. The Special Appeals filed by the Board are allowed and the Special Appeals filed on behalf of the allottees are dismissed. Consequently, the Writ Petitions are ordered to be dismissed.

51. Parties to bear their own costs.

52. After the pronouncement of the aforesaid judgment, Mr. N. M. Lodha, learned counsel appearing for the original petitioners requested that the implementation of the judgment and order passed by this Court be stayed for a period of one month.

53. Heard the learned counsel appearing for the parties on this point.

54. In facts of the case, such omnibus relief cannot be granted.

55. However, it is directed that the allottees, who may be required to make payment of any amount to the Board as a consequence of the judgment of this Court, shall not be obliged to pay the same for a period of one month from today i.e. up to Sept. 10, 1995. In other words, time to make payment of the amount to the Board by the allottees concerned is extended up to Sept. 10, 1995.

56. Request to the aforesaid extent is granted.