Allahabad High Court
Ajai Pal Singh And Ors. vs Bareilly Development Authority, ... on 6 February, 1986
Equivalent citations: AIR1986ALL362, AIR 1986 ALLAHABAD 362, 1986 UPLBEC 227, (1986) 12 ALL LR 350, (1986) UPLBEC 227, (1986) 2 CURCC 176
JUDGMENT K.P. Singh, J.
1. In these writ petitions the petitioners claim different categories of flats constructed by the Bareilly Development Authority in Tribhuwan Housing Scheme. The flats in controversy are of four types, namely. Middle Income Group or MIG, Higher Income Group or HIG, Lower Income Group or LIG and Economically Weaker Sections group or EWS. The petitioners are claiming flats on the terms and conditions contemplated in the registration Booklet issued in the year 1980 when the Scheme was launched A copy of the Booklet is on the record The following table will show the necessary details with regard to the various types of fiats projected in the Booklet : --
Type of House Range of Income Cost Initial Payment Interest Approximately monthly Instalments M.I.G. Rs. 1000/- to Rs. 1500/-per month Rs. 64000/-
Rs. 5000/-
12% Rs. 551/- p.m for 15 years.
H.I.G. Rs. I500/- and above per month.
Rs. 1,15000/-
Rs. 7000/-
12% Rs. 1440/- p.m. for 10 years.
LLG.
Rs. 351/- to Rs. 1000/-per month.
Rs. 35000/-
Rs. 2000/-
11% Rs. 345/- p.m for 15 years.
E.W.S. Rs. 350/- p-m.
Rs. 11000/-
Rs. 100/-
7% Rs. 897- p.m. for 20 years.
2. The Samanya Suchna Talika contains the following two relevant conditions : --
(1) ISTAMBH 4 MEN DARSHAYA GAYA MULYA KEWAL ANUMANIT HAI SAMPATTI KE TAIYAR HONE TAK MULYA MEN UTAR CHADHAV KE ANUSAR YAH GHAT BARH BHI SAKTA HAI. YOJNA VISHESH KI BHUMI KE MULYON KE ANUSAR BHI ISME VRIDHI YA KAMI KI JA SAKTI HAI.
(2) UPARYUKT TALIKA MEN VARNIT AANKADON MEN AVASHYAKTA NUSAR SANSHODHAN KIYA JA SAKE GA.
Since the above noted writ petitions raise common question of law and fact, they are being dealt with together in this judgment. For the sake of convenience reference to M.I. group flats is being made in this judgment.
3. In Civil Misc. Writ Petition No. 2274 of 1.984, Ajai Pal Singh and Ors. v. Bareilly Development Authority and Anr., the petitioners 1 to 19 claim M.I.G. Flats. They received information on 19-1-1984 that the price of the flats had been enhanced from Rs. 64000/- to Rs. 127000/- and the interest payable thereon would be increased from 12% to 13% and the amount of each instalment payable at the rate of Rs. 695/- per month would be increased to Rs. 1031.50 per month and further that in the event of allotment the applicants would also be required to deposit a sum of Rs. 35000/- in lump sum. They were also required to give consent by 28th of Jan. 1984 otherwise their claims would not be included in the lots to be drawn on 31-1-1984.
4. The petitioners have approached this Court under Article 226 of the Constitution and challenged the move of the opposite party Bareilly Development Authority, Rampur Bhagh Bareilly and its secretary on the ground that the Bareilly Development Authority was estopped from changing the conditions subject to which the petitioners had applied for registration and had deposited initial amount in the year 1980. According to the petitioners the information received in Jan., 1984 indicates that the conditions have been changed to the prejudice of the petitioners.
5. Second ground of attack by the petitioners is that the instalment of payment after allotment indicated to the petitioners is much beyond the means of the petitioners belonging to the M. I. group. Therefore, the action of the opposite party Bareilly Development Authority smacks of arbitrariness.
6. Thirdly, it has been contended that the total cost of each flat has been arbitrarily fixed. The estimated cost of flat in the Booklet was Rs. 64,000/- while inviting applications from the petitioners and now the demand for that flat is to the tune of Rs. 1,27,000/- which is almost double of the estimated cost. Therefore, the petitioners have prayed for the following reliefs : --
(i) Issue a writ of mandamus, order or direction in the nature of mandamus commanding the respondents to maintain the allotment of the houses in favour of the petitioners on the original terms and conditions as laid down in the registration booklet ignoring the notice dt. 3-2-1984.
(ii) Issue a writ of mandamus directing the respondents to hand over the possession of the houses to the petitioners.
(iii) Issue a writ of mandamus, order or direction in the nature of mandamus restraining the respondents from cancelling the houses allotted in favour of the petitioners.
(iv) Issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case in favour of the petitioners.
(v) Awarding the costs of the petition to the petitioners.
7. The learned counsel for the opposite party has submitted that the projected Scheme in the Registration Booklet is not a promise to provide houses at the then estimated cost. According to him it is only a projection liable to change with the cost at the time of completion of the Scheme. According to him in the circumstances of the present case the petitioners have got only option to participate in the lottery for allotment of a completed scheme. The petitioners have only a general right to claim damages from the Bareilly Development Authority. They cannot insist to take the flats according to the terms projected in the Booklet Scheme. In this connection term No. 8 of the allotment or Avantan in the booklet has been emphasized which reads as below : --
"PANJIKA RAN AVEDAKON KE PASS AVANTAN KE PURV AVANTAN PUSTIKA JISME PURN VIVRAN HOGA BHEJI JAYEGI. VIBHINNA COLONIYON MEN TAIYAR KIYE GAYE BHUKHANDON/BHAVANON KE VIKRAY AVANTAN KE SAMBANDH MEN PATRA KE MADHYAM SE VIGYAPTI BHI PRASARIT KI JAYEGI.
LOTTERY KE DRAW MEN KEWAL UN PANJIKARIT AVENDAKON KE NAAM SAMMILLIT KIYE JAYENGE JO AVANTAN PUSTIKA MEN DIYA GAYE NIRDHARIT AVEDAN PATRA KO BHAR KAR PRESHIT KARENGE.
BHAVANO/BHUKHANDO KA AVANTAN NIYAMO KE ADHEEN HOGA "(item No. 8 at p. 6 of the Booklet).
8. Second submission made on behalf of the opposite party is to the effect that Clauses 12 and 13 of the Booklet on the record at pages 6 and 7 provide that the Bareilly Development Authority had discretion to change, alter or modify any term or condition of the lottery allotment given in the booklet and its decision will be final with regard to any matter concerning registration and allotment. The Bareilly Development Authority has the right to relax any condition in its discretion.
9. The learned counsel for the opposite party has also emphasized notes 1 and 2 mentioned above and appended to Samanya Suchna Talika of the Booklet on the record and has contended that the opposite party 1 could vary the terms of the table as well as could increase the price. Further, he has submitted that some of the petitioners have consented to the notice of Jan. 19, 1984. On the basis of that consent their names were admitted to the lottery draw, therefore, they are not entitled to the reliefs claimed in the writ petition. He has also emphasized that increase in the cost and the interest demanded from the petitioners is neither arbitrary nor excessive, therefore, the petitioners' claim in this regard is ill-founded. He has stressed that this Court is not the proper forum for examining in detail the proper terms regarding payment and instalments when the escalation in the cost is justified in the circumstances of the present case. According to him if the change in plot area and plinth area was not indicated in the notice, the petitioners can at the most resile from their consent but they cannot attack the allotment of the flats on the cost demanded and instalments indicated as payable. Because of the consent given by the petitioners they are estopped from challenging the cost. The learned counsel for the opposite party has frankly admitted that there are some discrepancies in Annex. 4(1) attached with the counter-affidavit and he could not explain the discrepancies as the officials have all changed. According to him the mistakes are only clerical mistakes and cannot be characterised as arbitrariness in fixation of the price.
10. As regards the petitioners' claim that the contesting opposite parties are estopped from changing the conditions subject to which they had applied for registration and had deposited the initial amount in the year 1980, we think that the petitioners cannot successfully attack the move of the contesting opposite parties on this score.
11. Notes 1 and 2 appended to SAMANYA SUCHNA TALIKA of the registration Booklet on the record as well as Clauses 12 and 13 of the Avantan mentioned in the Booklet at pages 6 and 7 do indicate that the contesting opposite parties could change and modify the conditions and the decision of the Authority would be binding on the petitioners. The learned counsel for the petitioners has referred to the ruling reported in AIR 1979 SC 621. Motilai Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and has emphasized that on the basis of promissory estoppel the contesting opposite parties could not change the terms and conditions represented to the petitioners at the time of registration in the year 1980. We think that when, the petitioners had agreed that the contesting opposite parties could change and modify the terms and conditions, they cannot take shelter behind the principle of promissory estoppel in the facts and circumstances of the present case. Their claim in this regard is negatived in view of Clauses 12 and 13 of the Allotment or Avantan in the Booklet as well as Notes 1 and 2 appended to SAMANYA SUCHNA TALIKA. Clause 12 of the AVANTAN READS AS BELOW:--
"lootery SE AVANTAN KE LIYE SAMANYATAYA UPROKT SHARTON TATHA PUSTIKA MEN DIYE GAYE NIYAMON KA PALAN KIYA JAYEGA KINTU VIKAS PRADHIKARAN KO APNE VIVEKANUSAR JAB BHI AVASHYAK HO UNME SE KISI SHART AVAM DASHA ME PARIVARTAN PARIVARDHAN AVAM SANSHODHAN KARNE KA ADHIKAR HOGA."
Similarly Clause 13 also reads as below : --
"PANJIKARAN AVEDAN ADI SE SAMBANDHIT KISI BHI MAMLE MEN VIKAS PRADHIKARAN KA NIRNAYA ANTIM HOGA. UNHE APNE VIVEKANUSAR KINHI BHI SHARTON KO SHITHIL KARNE KA ADHIKAR HOGA. VIBHINNA YOJNAON KE MADHYAM AVAM UCHCHA AAY VARG KE PLOTON/BHAVANO KE KISI SAMOOH YA ANSH KA NEELAM DWARAVIKRAY KARNE KA ADHIKAR BHI VIKAS PRADHIKARAN ME NIHIT HOGA."
12. In view of what has been said above we are unable to accept the contention of the learned counsel for the petitioners based on the principle of promissory estoppel. Thus the first contention raised on behalf of the petitioners fails.
13. The second ground of attack by the petitioners appears to have some force. The monthly income of the petitioners belonging to MI group is Rs. 1,500/- per month utmost. The instalment of Rs. 695/- was estimated to be paid per month after allotment. Now, the demand by the contesting opposite party is to the tune of Rs. 1,031.50 per month. To us it appears that the petitioners belonging to MI group cannot reasonably pay the amount demanded by the contesting opposite party as monthly instalment in the facts and circumstances of the present case. In AIR 1979 SC 1628, Ramana Dayaram Shetty v. International Airport Authority of India vide para. 12, the following observation need be mentioned at this place :
"..... It must therefore, be dealing with the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts or quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
In para 20 of the above ruling the following observations have been made : --
"Now, obviously where a corporation is an instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance."
14. In the circumstances of the present case the fixation of monthly instalment to the tune of Rs. 1031.50 from the petitioners of MI group whose income is hardly Rs. 1500/-per month appears to us smacking of arbitrariness and unreasonableness on the part of the contesting opposite party. The learned counsel for the contesting opposite party has not been able to satisfy us that the demand of monthly instalment at the rate of Rs. 1031.50 is justified in the circumstances of the present case. We do not agree with the contention of the learned counsel for the contesting opposite party that this Court is not the proper forum for examining in detail the proper terms regarding payment and instalments once the escalation in the cost is accepted. It has not been disputed that the contesting opposite party is included within the term "other authority" mentioned under Art. 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the petitioners and its action must be in conformity with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness.
15. As regards the third contention of the learned counsel for the petitioners it is noteworthy that the estimated cost of a MIG. FLAT was Rs. 64000/- and now after completion, the amount demanded for a flat is Rs. 1,27,000/- which is almost double of the estimated cost. The learned counsel for the petitioners has invited our attention to Paras 11 to 18 of the supplementary affidavit to demonstrate that the contesting opposite party has acted arbitrarily in fixing the cost of the flats allotted to the petitioners. In this connection it has been urged that the authority has charged interest unreasonably and has committed errors in calculating the interest. He has also indicated that the cost of N ALAS has been included but not a single Nala has been constructed. Similarly, the cost of Kharanja has been shown but there has been no Kharanja at all. It has also been stressed that interest for Oct., 1982 has been charged twice and similar other allegations have been made in various paras of the supplementary affidavit. The learned counsel for the contesting opposite party has not been able to controvert the contentions raised on behalf of the petitioners satisfactorily. Since the demand for each M.I.G. flat is double of the estimated cost, the burden lay upon the opposite party to establish that its demand was not arbitrary and was based on some valid principle which in itself was not irrational and unreasonable. In the circumstances of the present case we are not satisfied that the contesting opposite party has succeeded in establishing its demand of double the estimated cost by facts and figures. The end of justice demands that the authority should refix the cost of the petitioners's flats after hearing their grievances. The petitioners are entitled to the relief at item Nos. (ii) and (iii) mentioned before subject to their readiness for paying redetermined instalments and cost of their flats.
16. The contention of the learned counsel for the contesting opposite party that the petitioners had given consent before their names were included in the lottery draw, therefore, they were estopped from seeking the reliefs mentioned in the writ petition, we think that the consent obtained from the petitioners was also not reasonable act on the part of the contesting opposite parties. In the notice dt. 19-1-1984, it was not indicated that the plinth area was also reduced and that the petitioners were required to send their consent by 28-1-1984 failing which they were threatened that their names would not be included for the lots which were to be drawn for allotment of the flats on 31-1-1984. Therefore, we are unable to accept the plea of the learned counsel for the opposite party that the petitioners are estopped from seeking reliefs mentioned in the writ petition due to their consent on the basis of which their names were included in the lottery draw.
17. In view of the above discussions, we think that the petitioners are entitled to the reliefs claimed at items Nos. (ii) and (iii) in the writ petition and that the contesting opposite party should redetermine the cost , of the petitioners' flats and the instalments payable by them after hearing the petitioners. The contesting opposite party should fix the instalments at such a figure that the petitioners may be able to maintain their families. The cost of each flat should also be fixed after meeting the grievances of the petitioners in that regard.
18. On the reasonings mentioned above and the facts involved in the above noted writ petitions, the petitioners of each petition are entitled to writ of mandamus for refixation of the cost of their flats and the monthly instalments payable by them.
19. In the result, all the above mentioned writ petitions deserve to be allowed and we accordingly allow them and direct the contesting opposite party to redetermine the cost of the petitioners' flats and instalments payable by them after hearing their grievances. Parties are directed to bear their own costs.