Orissa High Court
Satrughan Nayak And Ors. vs State Of Orissa And Ors. on 29 July, 1996
Equivalent citations: AIR 1997 ORISSA 93, (1996) 82 CUT LT 907
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. The petitioners who were applicants for allotment if different types of houses under Gopabandhu Nagar Housing Scheme, Stage-II, Chhond under Rourkela area by the Rourkela Development Authority, have jointly approached this Court, challenging the enhancement in rate and alteration in the size of plots, intimated vide Annexure-4 the letter of provisional allotment made in their favour being illegal and contrary to the stipulations made in the brochure issued to them, a copy whereof is Annexure-1.
2. The main grievance of the petitioners as revealed from the pleadings and submissions made on their behalf is that the erstwhile Regional Improvement, Trust, Rourkela, published an advertisement inviting application for allotment of houses of different categories like, Economically Weaker Section (E.W.S.), Lower Income Group (L.I.G.), Middle Income Group (M.I.G.) and Higher Income Group (H.I.G.)- at Gopabandu Nagar Composite Housing Accommodation Scheme at Chhend in last part of December, 1991. A Brochure was published giving in details, the area of the land, the number of rooms and the size thereof, the price of the house fixed for different categories of houses etc. Petitioners Nos. 1 to 7 made applications for M.I.G. Houses, and made earnest money deposits, petitioners Nos. 8 to 47 made applications for L.I.G. houses and similarly petitioners Nos. 48 to 68 applied for houses under E.W.S. scheme along with required earnest money deposit. The number of applicants being found to be much more than the available houses, the selection for allotment was made on the basis of lottery and the result of lottery was published in the newspaper and provisional allotment letters were received the petitioners, copies whereof are Annexure-4 series. The petitioners to their surprise found from Annexure-4, that the price of houses under EWS category has increased to the tune of 105%, houses under LIG category to the tune of 90% and the price of MIG category houses to a tune of 35% than the price fixed under the Brochure a copy whereof is Annexure-I. The amount of earnest money, security deposit and the amount of instalment had also been enhanced. Furthermore the size of the plot and area has also been altered, behind the back of the petitioners and thus the action in illegal and arbitrary. The minute details of deviation in prices of different category of houses and area have been given in the writ application. , An exhaustive counter affidavit has been filed by the Rourkela Development Authority and its Vice-Chairman, opposite parties 2 and 3. The opposite parties have raised a preliminary objection to the maintainability of the joint Writ Petition filed by several writ petitioners with separate and distinct causes of action inasmuch, as it is pleaded that this petition involves disputed question, of fact, which may not be gone into in a petition under Article 226 of the Constitution of India. The opposite parties 2 and 3 have controvert-ed the allegations made by the petitioners, and further, it is said that in the brochure, it was clearly indicated that the cost factor was approximate and the proposed area was tentative and therefore, if there is an increase in cost due to increase in cost of an land, escallation in labour, materials add tender premium, additional work taken up or increased cost in providing external infrastructure, water supply, road, electricity etc. no exception can be taken to such enhancement or modification made only in M.I.G. category of houses. It is further stated that if any of the petitioners who are applicants for the L.I.G. category of houses, do not want the change of sizes of the plots, then the opposite parties are prepared to revert back to the original position, reduced the plot sizes. However, it is said that the prepared scheme had to be approved by the Urban Development Department of the State Government and further to be cleared by HUDCO and in such circumstance, taking into account the increased cost factor of both land and construction, the plot areas have been fixed and tentative cost has been worked out. It is further stated that HUDCO, which gives advance finance for all these schemes charges different rate of interest and interest tax and fixes different loan slabs to cover, cost of a particular house, including its own construction cost. The general condition of allotment has been filed as Annexure A/2 was also published in the notice board.
3. Mr. D.K. Mohapatra, learned counsel appearing for the opposite parties 2 and 3 has raised a preliminary objection to the maintainability of the writ application. It is his contention that each of the writ petitioners has a separate cause of action, different pleas and aggrieved by individual order of allotment and therefore the present writ application at the instance of 68 petitioners, who are applicants for various categories of houses cannot join together arid file a joint writ application. True it is, as a general rule, two or more persons cannot join in a single petition for a writ to enforce separate claims. Where injury to a class of persons is done by a common order or law, the case has to be treated as an exception to the general rule and in that event, a joint petition can be maintained. In the case at hand, the petitioners are provisional allottees of house sites by the Rourkela Development Authority, they are all aggrieved by the alleged decision of the authority enhancing the price of houses arbitrarily and the alteration of the area of plots in question. A challenge has also been made in the writ application to the competence of the authority for enhancement of the price and the arbitrary and unreasonable magnitude of the hike in prices etc. Thus, all the petitioners have been aggrieved by the decision of the Development Authority in enhancing the prices and altering the area of the plots allotted to several applicants. In that view of the matter, in our considered opinion, the present writ petition is maintainable in law. Viewed from another angle, the objection is otherwise not tenable, since at the time of admission, the petitioners were directed to pay Court-fees for each of the writ petitioners and Court-fee has also been filed accordingly. In that view of the matter, even if a joint petition can be viewed as an irregularity, such irregularity is cured by payment of separate deficit Court-fees in respect of each of the petitioners. In this connection, a reference may be made to the view taken by the Allahabad High Court in case of Chandra Kishore v. State of Uttar Pradesh, reported in AIR 1963 All 301, where it has been held, even if a joint writ petition is not maintainable, it is a mere irregularity which can be cured by requiring the petitioners to pay deficit Court-fees instead of asking them to file separate Writ Petitions.
4. Sri N. P. Parija, learned counsel appearing for the petitioners, referring to An-hexure 1, the Brochure issued by the erstwhile Rourkela Regional Improvement Trust (hereinafter called "the R.R.I.T.") for Gopabandhunagar Composite Housing Accommodation Scheme at Chhend, Stage-II, Phase-II area, Rourkela, has contended that the erstwhile R.R.I.T., during the last part of December, 1991 made an advertisement inviting application for allotment of sites at Gopabandhuhagar Composite Housing Accommodation Scheme arid according to the Brochure for different categories of schemes, different amount was fixed towards cost of land and for EWS category cost of the land and building was fixed at Rs. 22,000/- for sizes of plot 13' x 35' having one room, kitchen room and outside toilet, whereas the provisional allotment letter in Annexure-4 series indicates that the tentative cost of the house has been fixed at Rs. 45,000/- and further the cost is subject to revision as per the actual cost of its completion and thus, according to the contention of the petitioners, the price has been enhanced to the tune of 105%. For LIG houses, the initial price as per annexure-1 was fixed at Rs. 50,000/ -, whereas in Annexure-4 it has been enhanced to Rs. 90,000/- thus an increase to the tune of 80%. Similarly, for the MIG houses, as per, the Brochure Annexure-1, the price indicated was Rs. 1,50,000/-, whereas in the provisional allotment letter, the same has been enhanced to Rs. 1,99,500/-, thus an increase to the tune of 33%. The learned counsel has given a comparative table of different categories of houses along with its cost of land and building, earnest money deposit amount payable by instalments and the sizes of plots in details in terms of Annexure-1 and the revised and enhanced price as per the provisional allotment letter under Annexure-4 series at paragraph 24 of the writ application. Mr. Parija further submits that not only the cost of land and building has been enhanced arbitrarily, the earnest money deposit as well as the monthly instalments has also been increased in geometrical progression arbitrarily without any reason or rhyme. Thus, it is the contention of the learned counsel that such enhancement to the tune of 105% for the economical weaker section applicants, 80% for the lower income group applicants and 33% for the middle income group applicants are highly arbitrary and absolutely has no rational basis. Mr. Mohapatra, learned counsel for the opposite parties has brought to our notice Clause III(2) of Annexure-1 of the Brochure and contends that it has been clearly stipulated in the Brochure that the cost of houses with plot is tentative and in case of actual increase in cost of the houses, than the tentative cost as indicated in Table III-1, due to increase in cost of land, escalation in labour, materials and tender from time to time, additional works taken by or increased in providing external infrastructures, like water supply, road, electricity etc., the allottee shall pay such excess amount over and above the tentative cost in lump sum or instalment as may be determined by the then RRIT. It is the further submission that the Brochure clearly indicates that the authorities reserved the right to modify the type and design of the house and the lay out plan etc. and therefore, in the facts and circumstances of the case, it cannot be faulted.
Mr. Mohapatra submits that the mere allotment does not vest a right on the allottees for allotment at the price obtaining on the date of calling for application or the date of drawing the lots and since the right to the houses in question arises only on the letter of allotment, the price of rates prevailing at the time of such communication is applicable unless otherwise provided in the Brochure. In support of this contention, Mr. Mohapatra has referred to a decision of the Hon'ble Supreme Court reported in 1994 AIR SCW 3985 (Delhi Development Authority v. Pushpendra Kumar Jain). It appears that a large number of intending purchasers had made applications in terms of Annexure-1, the Brochure and the applicants being large in number, the Development Authority adopted the method of allotment by drawal of lots and the petitioners' name having been so selected, they were allotted house sites and they were intimated vide Annexure-4 series. The scheme was introduced and thereafter, applications were invited in the year 1991 and the petitioners pursuant to the scheme made their applications. Lots have been drawn in the year 1995 to select persons for allotment in view of large number of applicants and limited available sites. Tentative, allotments have been made in favour of the petitioners in 1995 asking them to deposit the first instalment by 21st December, 1995 at the enhanced rate. It is stated in the counter affidavit and also submitted by Sri Mohapatra that before any housing project was taken up by the then R.R.I.T. subsequently Rourkela Development Authority, a scheme has been prepared and approved by the Urban Development Department and for implementation of the scheme, clearance of HUDCO was required for categorisation of the houses to be built under the said scheme and the respective advance involving construction of those particular houses including the infrastuc-tural development of the concerned area has taken considerable time inasmuch as after approval and sanction by the State Government, the concerned authority had to apply . for obtaining the loan from various financial institutions, like Housing and Urban Development Corporation (HUDCO), Commercial Banks and State Government for construction of various category of houses in the approved scheme. It is further submitted that the scheme also includes provision for clearance, park, play ground and number of such other amenities including water supply, drawing water from the sources and to provide water to the houses under the scheme etc. It is submitted that under such circumstances and taking into account the increased cost of the building materials and lands broad areas have been fixed and proportionate tentative cost have been worked out. Therefore, the cost so fixed by the Development Authority cannot be stated to be unreasonable, arbitrary or without any foundation.
5. Having heard learned counsel for the parties and after going through the materials on record, we find that since the scheme was first introduced and applications were invited in the year 1991, whereafter various steps were to be taken by the Rourkela Development Authority to obtain approval, finance and other necessary requirements and there-after, the applicants being more than the available sites, lots were to be drawn to select the allottees, which was done only in the year 1995, whereafter the allotments have been made. It can be noticed that there has been steady rise in the cost of construction and material and the price of the land in last several years and thus if the authorities have fixed prices taking into consideration the cost factor as on the date of allotment, it cannot be faulted or said to be arbitrary or unreasonable. The opposite parties have indicated in the Brochure, Annexure-1 that the prices are tentative and subject to change depending upon the increased cost of the land, escalation of the cost of labour, materials, additional work and increased cost in providing external infrastructure like water, supply, road, electricity etc. in which event the allottees have to pay the extra amount over and above the tentative cost and therefore, the present escalation and enhancement of the cost in the facts and circumstances of the case, cannot be said to be without authority or without any material basis.
6. The Hon'ble Supreme Court in 1994 AIR SCW 3985 (supra) relied on by Sri Mohapatra at para 8 thereof have observed as follows:
"Now coming to the other ground, we are unable to find any legal basis for holding that the respondent obtained a vested right to allotment on the drawal of lots. Since D. W. 8, is a public authority and because the number of applicants are always more than the number of flats available, the system of drawing of lots is being resorted to with a view to identify the allottee. It is only a mode, a method, a process to identify the allottee, i.e. it is a process of selection. It is not allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of drawal of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, Clause (14) thereof says that "the estimated prices mentioned in the brochure are illustrative and are subject to revision/modification depending upon the exigencies of lay out, cost of construction etc. "it may be noted that registration of applicants under the said scheme opened on September 1, 1979 and closed on September 30, 1979. About 1,70,000 persons applied. Flats were being constructed in a continuous process and lots were being drawn from time to time for a given number of flats ready for allotment. Clause (14) of the scheme has to be understood in this context -- the steady rise in the cost of construction and of land. No provision of law also could be brought to our notice in support of the proposition that mere drawal of lots vests an indefeasible right in the allottee for allotment at the price obtaining on the date of drawal of flat arises only on the communication of the letter of allotment, the price or rates prevailing on the date of such communication is applicable, unless otherwise provided in the scheme. If in case the respondent is not willing to take or accept the allotment at such rate, it is always open to him to decline the allotment. So we see no unfairness in the above procedure."
In view of the ratio of decision in the aforesaid case and what has been discussed earlier, the decision at the Rourkela 'Development Authority in enhancing and fixing the price of the allotted houses cannot be said to be wholly illegal or without any rational basis, calling for our interference in a writ jurisdiction.
7. It is next contended by Sri Parija that the opposite parties have illegally changed and modified the lay out plan and the area of the plots and houses and have also revised the carpet area of the houses under the scheme, contrary to the specifications given in the Brochure in Annexure-1 unilaterally, while at the same time enhancing the rate of such buildings, which should have been decreased since the area of the plots with constructions have been reduced. The opposite parties in their counter have stated that under Clause III of the Central Conditions stipulated in Annexure-1 the Rourkela Development Authority had the authority to modify the type and design of the house and lay out plan etc., inasmuch as it has been stated in paragraph 8 of the counter-affidavit that if the petitioners are really aggrieved by the alteration in plot sizes, the opp. parties are prepared to reduce the plot sizes so as to be in conformity with Annexure-1. In that view of the matter, the alterations made in the areas cannot be termed as without authority and that cannot be a ground to interfere in the matter. Since the opp. parties have agreed to reduce the area, it is open for the petitioners to make such applications to reduce the plot sizes in confirmation with Annexure-1, if they so like.
In the result, the writ application is devoid of any merit and as such we dismiss the same. There shall be no order as to cost.
Susanta Chatterji, Actg. C.J.
8. I agree.