Gujarat High Court
M.P.Mamtora vs State Of Gujarat on 21 September, 2021
Bench: R.M.Chhaya, Biren Vaishnav
C/LPA/508/2014 JUDGMENT DATED: 21/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 508 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 13209 of 2004
With
R/LETTERS PATENT APPEAL NO. 443 of 2014
In
SPECIAL CIVIL APPLICATION NO. 13656 of 2004
With
R/LETTERS PATENT APPEAL NO. 444 of 2014
In
SPECIAL CIVIL APPLICATION NO. 13209 of 2004
With
R/LETTERS PATENT APPEAL NO. 509 of 2014
In
SPECIAL CIVIL APPLICATION NO. 13656 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA sd/-
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV sd/-
==============================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
M.P.MAMTORA
Versus
STATE OF GUJARAT & 3 other(s)
==============================================================
Appearance:
MR CK DIVAKARAN(3052) for the Appellant(s) No. 1
LPA No. 508 and 509 of 2014
Mr. Dhaval Jaiswal Asst. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
LPA NO.443 & 444 OF 2014
Mr. Tirthraj Pandya Asst. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR YN RAVANI(718) for the Respondent(s) No. 2,3,4
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C/LPA/508/2014 JUDGMENT DATED: 21/09/2021
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/09/2021
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)
1. Since all these appeals involve common issues, all the appeals have been clubbed and heard together and are disposed of by this common judgment and order.
2. The facts as narrated in Letters Patent Appeal No. 444 of 2014 are made the basis of this common judgment and order.
3. Feeling aggrieved and dissatisfied with the common judgment and order dated 26.07.2013 passed by the learned Single Judge in Special Civil Application Nos. 13209 of 2004 and 13656 of 2004, the Gujarat Housing Board and others have preferred Appeals being Letters Patent Appeal Nos. 443 & 444 of 2014. After the common judgment and order was delivered, the original petitioners preferred Review Application and claimed interest. The said Review Application filed by the original petitioners came to be rejected vide order dated 11.09.2013, which is impugned before us by the original petitioners being Letters Patent Appeal Nos. 508 and 509 of 2014. The learned Single Judge while allowing the writ petitions filed by the original petitioners was pleased to allow the petitions and came Page 2 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 to the conclusion that the original petitioners fulfilled the criteria and terms and conditions with regard to the full payment before the cut off date of 1.4.2003 and was further pleased to hold that original petitioners are entitled to 25% rebate as per the Resolution No.307 of 2003 dated 18.08.2003 and directed the Gujarat Housing Board to extend the benefit of rebate of 25% and to make actual payment of such benefit within a period of six weeks. Similarly, in two Letters Patent Appeals filed by the original petitioners i.e. Letters Patent Appeal Nos. 508 and 509 of 2014, the original petitioner's claim 12% interest from due date till the actual payment, which was declined by the learned Single Judge.
4. Following facts emerge from the record of these appeals.
4.1. The appellant Gujarat Housing Board is constituted under the Gujarat Housing Board Act, 1961. The Gujarat Housing Board is under the authority to construct the residential dwelling of different type for different category of citizens of Gujarat. The Act of 1961 provides for such powers to the appellant Gujarat Housing Board.
4.2. The record indicates that the appellants Board floated a scheme of 120 flats of A Type and 40 flats of B Type Page 3 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 in Naranpura Area of Ahmedabad City and the scheme was named Anmol. The record indicates that the scheme as such was for HIG- High Income Group and was multi storied building of 10th Floor. Constructed area in form of flat as far as A type is concerned, was admeasuring 137.08 sq mtrs whereas constructed area of flat B type was 113.78 sq mtrs. The record indicates that the appellants Gujarat Housing Board fixed total cost price of A Type at Rs.8,43,000/- and B Type at Rs. 7,34,000/-. The record further indicates that as per the Rules applicable wide publication of such scheme floated by the appellants was given and information booklet was also published. The record further indicates that the Housing Board could not find buyers for all the flats in the scheme and flats particularly in the scheme as mentioned herein above remained unsold. As per the policy applicable, Housing Board gave a public advertisement in Gujarati daily "Sandesh" dated 23.3.2003 and invited applications by mentioning that it is ready flats and immediate possession. In the said advertisement, both the flats which are subject matter of these appeals were forming part at scheme no.1 being A Type Flat in 880 HIG, Anmol Tower and at no.2 B Type Flat. The petitioners in response to the said advertisement applied for allotment of B Type Flats. After scrutiny of the application so filed by the original petitioners, the appellants Gujarat Housing Page 4 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 Board allotted Flat No.B 801 to the original petitioner of Special Civil Application No. 13209 of 2004 and Flat No.A-2/104 to original petitioner of Special Civil Application No.13656 of 2004 on 11.07.2003. The said allotment letter clearly postulates that the total price of the flat would be Rs.7,34,000/- and the same was on as is where is basis. The allotment letter inter alia provides that date of allotment would be 1.3.2003. The allotment letter further provides in clause no. 14 that if the payment is made within 60 days from the date of issuance of the allotment letter, the allottee would be entitled to 10% rebate (incentive) as per the Resolution of the Gujarat Housing Board. The further condition imposed by the Appellant Board was that the allottee was required to make full payment of the purchase price at one stroke. The full payment was made on 6.8.2003 which is within the time prescribed in clause no.14. Thereafter the deed of conveyance in favour of the original petitioner came to be executed on 4.9.2003. The record indicates that after the conveyance deed was executed, the original petitioners came to know about Resolution No.307 of 2003 of the appellant Board dated 10.11.2003. The said resolution is pursuant to the decision taken by the Board that in cases where the scheme is three years or more old and still the dwelling / premises / flats are vacant, allottee to pay 10% of the purchase price shall be entitled to reduction in purchase price to Page 5 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 the tune of 25% as far as HIG category is concerned. The said circular in clause no.7 inter alia provides for different categories of the houses that are constructed by the appellant Gujarat Housing Board and it is clearly mentioned in the said clause that even those persons who have been given allotment letter and also those persons in whose favour deed of conveyance has already been executed would also be entitled to benefit of this policy decision in form of Resolution No.307 of 2003 and the cut off date would be 1.4.2003. The original petitioners therefore, approached the Appellants Board and raised a demand that they would be entitled to rebate / reduction in price to the tune of 25% instead of 10% and as such request made by the petitioners was declined by the appellant Housing Board, the original petitioners preferred writ petitions under Articles 14 & 226 of the Constitution of India and inter alia prayed as under:
"18.(b) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other writ, order and direction in the nature of mandamus and be pleased to hold and declare that the act of the respondent authorities in not disclosing the petitioner that the petitioner is entitled to a rebate at the rate of 25% on the price of the flat is wrong, illegal, ultravires the provisions of the resolution, malafide and arbitrary and be further pleased to declare that the petitioner is entitled to the rebate of 25% of the price fixed for the said flat and quash and set aside the order dated 21.2.2004 of the respondent."
4.3. Various contentions were taken by the original Page 6 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 petitioners in the petition, which were denied by the respondent Board by filing affidavit in reply, which also was controverted by the original petitioners by filing further affidavit. The appellants have also filed their affidavit in these Letters Patent Appeals also. The learned Single Judge by the impugned judgment and order was pleased to allow the petitions and was pleased to further direct the appellant Gujarat Housing Board as observed herein-above. The original petitioners preferred Review Application and praying for interest at the rate of 12% from the date of judgment till its actual payment. The learned Single Judge by the order dated 11.09.2013 was pleased to reject the said review applications. Both these orders are impugned in this group of four appeals.
5.0. Heard Mr. Y.N. Ravani, learned advocate assisted by Mr. Shah, learned advocate for the appellant Gujarat Housing Board and Mr. C.K. Diwakaran, learned advocate for the original petitioners and Mr. Tirthraj Pandya, learned Assistant Government Pleader and Mr. Dhawan Jaiswal, learned Assistant Government Pleader for the respondent State.
6.0. Mr. Ravani, learned advocate for the appellant made following submissions:
6.1. The advertisement dated 23.03.2003 and information Page 7 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 leaflet specifically provided for a rebate of 10% based on which the original petitioners - allottees applied and were allotted flats.
6.2. He would invite the Court's attention to the Resolution No.307/2003 dated 10.11.2003 and submit that the same was applicable only to MIG Scheme of flats at Gorwa Baroda and not to Ahmedabad. (Page No.44 in LPA No.444 of 2014).
6.3. According to the petitioners some purchasers of the flats in the same scheme had been extended the rebate of 25% and hence there was violation of Article 14. To this, Shri Ravani would submit that in the case of such beneficiaries, the letters of allotment were subsequent to the resolution No.307 of 2003 dated 10.11.2003 whereas the petitioner's letter of allotment was before the date of the resolution i.e. 11.7.2003.
Therefore, no violation of Article 14 was made out.
6.4. Even otherwise the original petitioner was bound by a stipulation in the advertisement and the information leaflet which provided for a rebate @ 10% only.
6.5. Mr. Ravani contended that appeals filed by the Housing Board deserve to be allowed and appeals filed by the original petitioners for interest being misconceived, deserve to be dismissed.
Page 8 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 7.0. Shri C.K. Diwakaran, learned advocate for the original petitioners made following submissions:
7.1. The learned Single Judge committed no error in his directions given in the oral judgment dated 26.7.2013 directing the Board to extend the benefit of rebate @ 25%.
7.2. He would invite the Court's attention to the Circular dated 10.11.2003 and letter of the Housing Commissioner dated 19.11.2003. According to Shri Divakaran, both these communications clearly stipulated that all those allottees post the cut-off date of 1.4.2003 were entitled to the benefit of rebate @ 25%.
7.3. The applicability of Resolution No.307 of 2003 as contended by the Board being restricted to the Scheme at Gorwa, Baroda was raised for the first time in the present appeals. No such contention was raised in the affidavit in reply or in the submissions before the learned Single Judge.
8.0. No other and further submissions / contentions / grounds have been made by the learned advocates for the respective parties.
9.0. Bare reading of the Resolution No.307 indicates that it Page 9 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 is based upon a representation for consideration filed by the residents of Housing Board situated at Gorwa, Baroda, however it is policy decision applicable to all schemes of Gujarat Housing Board throughout the State of Gujarat. The Resolution No. 307 of 2003 clearly recites that instead of taking individual decision in a given case, as a matter of policy, decision is taken. It would be appropriate at this stage to refer to relevant contents of Resolution No.307 of 2003.
"Since long time about 11000 houses amongst the Houses constructed by Gujarat Housing Board have remained vacant in which the amount of about Rs.,116 crores of the Board has been blocked. Because of these houses being remained vacant without use, more and more damages occur in them and it causes reduction in the cost. It appears that its disposal can be possible by giving benefit in payment of costs of the houses in different schemes and it appears that the Board will also get financial fund. Under these circumstances, the financial condition of the Board has become weak. Board has to pay Rs.100 crores towards the loan obtained from HUDCO in coming five years. On 5.8.2003 the Hon'ble Chief Secretary has informed the Board to collect the amount of Rs.100 crores in coming six months. Therefore, it is very essential to reduce the cost of these vacant houses for sale so that the blockage amount as aforesaid may be released from which the Board can pay up the loan in HUDCO and can construct new houses from the available fund. For this if the amount which is collected by Board as Development Reserve Fund is decreased or set off or if the cost of the houses is reduced to some extent, then the sale of the houses may get speedy.
Taking into consideration all these facts, for encouragement of disposal of vacant houses and payment of balance cost one package scheme as under is discussed and approved.
In the case where the beneficiary wants to pay up the full 100% sale cost and wants possession of the house such and other who wants to pay up their remaining Page 10 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 installment at a stroke, it is decided to give relief to such beneficiaries as follows.
Category of Houses:-
Category -'A' : Though efforts have been made for disposal of the houses remained vacant since one year or more time, however the same are not disposed of. For such houses their costs have been reduced by Board's Circular Resolution NO.353/2002, however, till this date the same remained vacant. Therefore, taking into consideration the present market situation, still it is necessary to reduce further cost.
XXX XXXX XXXX Category - "A" :- The houses are vacant since one year or more and efforts have been made, however, they are not disposed of, in the stable cost of such houses, following reduction is suggested. (For beneficiaries who wants to pay up 100% amount) EWS LIG MIG HIG
1. In the cost of the houses under 35% 39% 25% 20% scheme which started before one year and within three years 2 In the cost of the houses which 45% 35% 30% 25% allotment started for the period of more than three years XXX XXX XXX This Scheme will continue in force till 31.12.2003. It is decided that till the continuation of this scheme i.e. till 31.12.2003 the prevailing costs of all the vacant houses are suspended. The benefits of this scheme will be given on the prevailing costs. For payment of full amount at a stroke, the application for joining the scheme shall be made within 15.12.2003 and the amount to be paid within 31.12.2003. If during this time the amount is not paid then the benefit of this scheme will automatically cancelled. In proper case for payment of the amount installments shall be given for the period upto 31.03.2004. But for that the applicant will have to pay interest at the rate of 10% for three months. In the continuing scheme of first allotment, the applicant who has paid up full amount and got registered the sale deed Page 11 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 or has paid up the amount the same shall be given benefit of this reduction. For this the cut-off date will be treated 1.4.2003."
10. Bare reading of the Resolution No.307 of 2003 clearly speaks of entitlement of 25% rebate in HIG category. Clause 14 clearly stipulates that even in cases where allotment letters have been issued and even in cases where conveyance deeds have been executed in favour of the respective allottees, the benefit of additional rebate would be applicable with a cut off date 1.4.2003. In light of such factual position and the applicability of Resolution No.307 of 2003, it is not restricted only to Gorwa Scheme but it is applicable to all schemes of Gujarat Housing Board throughout State of Gujarat. The feeble attempt made by Shri Ravani, learned advocate for the appellant to give restricted meaning is nothing but an erroneous and a convenient reading of the Resolution No.307 of 2003. On the contrary, in opinion of this Court, clause 14 has given retrospective effect of the benefit enshrined in the said Resolution by providing cut off date as 1.4.2003. The purpose and object also flows from the very resolution. The Housing Board is public authority and hence cannot afford any commercial loss and hence it provides further rebate in its commercial wisdom. On the contrary the appellant Board to see that the properties so constructed by the Housing Board is sold off, if not making any profit much less to Page 12 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 match cost price, the argument put forward Mr. Ravani, learned advocate for the appellant is contrary to the their own policy and the contention that the Resolution No.307 of 2003 would not apply in case of the original petitioners, is misconceived and such contention deserves to be negatived. In order to appreciate further whether the original petitioners would be entitled to the benefit of rebate to the tune of 25% as per the Resolution No.307 of 2003 is concerned, it would be appropriate to refer to date on which allotment letters were issued to the original petitioners. On perusal of the record of the appeals, the same reveals that in Letters Patent Appeal No. 443 of 2014, which arise out of Special Civil Application No.13656 of 2004, the following details are there:
LPA No.443 of 2014 (SCA No.13656/2004):
Date of advertisement: 23.3.2003
Date of Allotment: 11.7.2003
Date of Full Payment: 6.8.2003
Date of Conveyance Deed: 4.9.2003.
10.1. Similarly, in case of Letters Patent Appeal No. 444 of 2014, the following dates are there:
◦ LPA No.444/2014 (SCA No.12309 of 2004):
◦ Date of advertisement: 23.3.2003
◦ Date of Allotment: 13.5.2003 / 20.5.2003
◦ Date of Full Payment: 2.6.2003 / 4.7.2003
◦ Date of Conveyance Deed: 5.6.2003 / 18.7.2003
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11. Even on conjoint reading of the Circular No.353 of 2002 dated 31.5.2002, same inter alia provides that rebate at the rate of 10%. It would be profitable to refer to the letter of the Housing Commissioner of the Appellate Housing Board dated 19.11.2003 (Free English Translation from original Gujarati to English) wherein it is averred as under:
"As per Resolution No. 307/2003 of Board regarding vacant houses.
1.For vacant house if the full amount is paid then only relief should be given in hire-purchase cost.
2.If the allotment is made after 1.4.2003 and the tenant wants to pay up the whole amount or after 1.4.2003 if the whole amount is paid to the Board and document is executed in such case, relief be given by Resolution No. 307/2003."
12. In light of the aforesaid therefore, the contention raised by Shri Ravani, learned advocate for the appellant that promise which was given by the Housing Board in its advertisement dated 23.03.2003 was only to the tune of 10% and that Resolution No.307 of 2003 dated 10.11.2003 would not be applicable to the case of the original petitioners is an erroneous reading of the same. The learned Single Judge has read Resolution No. 307 of 2003 correctly. The learned Single Judge has also referred to the aspect of promissory estoppel on the part of the appellant Board and relying upon the judgment of the Hon'ble Supreme Court in the case of Mahabir Auto Store vs. Indian Oil Corporation reported in AIR 1990 Page 14 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 SC 1031 has observed thus:
"12. Therefore, if the policy / scheme has been moved by the authority like Respondent No.2 Board, and with full consciousness and awareness, to achieve some object for increasing the booking of the flats and to have the reserve funds or the liquidity by disposal of such flats, it cannot then back out from such promise held out to the respective parties / allottees like the petitioners, who have applied and who have been allotted the flats and have also made full payment of consideration fulfilling the criteria laid down by such a scheme.
13. The guidelines have been laid down by catena of judicial pronouncements with regard to the principle of estoppel and promissory estoppel. It is well accepted that when the benefit is sought to be conferred by a policy, it has to be extended uniformly and cannot be denied to anyone if the terms and conditions of such policy are fulfilled as discussed above.
14. Therefore, as the petitioners have fulfilled the criteria, and the terms and conditions with regard to the full payment, before the cut off date of 1.4.2003, would definitely be entitled to the scheme of enhanced rebate at 25% as per their own Resolution No. 307/2003 dated 18.8.2003. Therefore, the Respondent No.2 Board is estopped from backing out from such promise and denying the benefit to the petitioners. Accordingly, the present petitions deserve to be allowed and accordingly stands allowed. The prayer in terms of paragraph 18(B) in the both the petitions is granted. The Respondent No.2 Board is directed to extend the benefit of rebate @ 25% and shall make the payment within a period of six weeks. Rule is made absolute."
12.1. We are in complete agreement with the observations so made by the learned Single Judge while allowing the petition. The learned Single Judge has thus committed no error in coming to the conclusion that as the cut off date is 1.4.2003, both the original petitioners would be entitled to benefit of Resolution Page 15 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021 C/LPA/508/2014 JUDGMENT DATED: 21/09/2021 No. 307 of 2003 and was pleased to allow the respective writ petitions. The contention raised by the appellant Housing Board deserves to be negatived. We find that there is no error much less any error which requires interference of this Court in its appellate jurisdiction. The appeals on the contrary are misconceived and same deserve to be dismissed.
13. Now upon examining the prayers prayed for by the original petitioners in the review petition, the learned Single Judge has rightly come to the conclusion that there is no error apparent on the face of record which would call for such review. Award of interest in this set of facts, is a matter of discretion of Court and the learned Single Judge while dismissing the review petition filed by the original petitioner has correctly observed that if the grant of rebate is granted with interest as canvassed by the original petitioners substantial portion of the amount of cost price will have to be refunded. We are in total agreement with the conclusion arrived at by the learned Single Judge. Though feeble attempt is made by Shri Diwakaran, learned advocate for the original petitioners that considering the age of the original petitioners some interest be awarded, it does not carry the case of the original petitioners - appellants herein any further. In light of the aforesaid, appeals are meritless and deserve to be dismissed.
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14. In light of the aforesaid observations, all the appeals fail and are hereby dismissed. However, there shall be no order as to costs.
sd/-
(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J) sd/-
(BIREN VAISHNAV, J) KAUSHIK J. RATHOD Page 17 of 17 Downloaded on : Wed Sep 22 00:11:36 IST 2021