Punjab-Haryana High Court
Sukh Pal Singh Kang vs Chandigarh Housing Board And Anr. on 24 December, 1993
Equivalent citations: (1993)105PLR580
JUDGMENT V.K. Bali, J.
1. The basic amenities of life include a home stead for which almost the sole repository is either the State or various Housing Boards working under it. An individual, who longs all his life to get a dwelling unit commensurate to his capacity and status is left with no choice but for to try his luck in various Housing schemes floated by the Government or various Housing Boards. Can the Government Housing Boards increase the price of dwelling units, be it a plot or built in flat, at any time and on any ground by merely mentioning in the offer of allotment that the price then settled is tentative, is the only question that has been mooted out and asked for adjudication from this Court by Sukh Pal Singh Kang through present petition filed by him under Article 226 of the Constitution of India. The facts need a necessary mention.
2. The Chandigarh Housing Board advertised Housing scheme for general public in the year 1986 for built-up dwelling units in Sector 45-A & B at Chandigarh. The last date for receipt of applications was fixed as December 4, 1986. Petitioner, in pursuance of the advertisement, applied for a High Income Group category I (here-in-after to be referred to as HIG) flat in Sector 45-A & B, Chandigarh. There was 1300 square feet covered area of the advertised units and the tentative cost was fixed at Rs. 2.25 lacs. The terms and conditions of the scheme, eligibility, mode of allotment, mode of payment etc. were set out in the brochure. An initial deposit of Rs. 11,250/- was required to be made by petitioner which was accordingly made. Request of petitioner for allotment of a dwelling unit was acceded to vide letter dated June 2, 1988 under category-I and he was allocated ground floor dwelling unit in Sector 45-A, Chandigarh, as a result of draw of lots held on May 14, 1988. The Housing Board fixed a schedule of payments and in compliance thereof, petitioner started depositing various instalments on due dates in accordance with the payment schedule. Nearly a year after the acceptance of his application and when he had already paid few instalments, the respondent-Housing Board addressed letter dated April 11, 1989 to the petitioner informing him that it was proposed to improve the design of dwelling units so as to provide better accommodation and more facilities to the allottees. In view of these objectives of the Board, it was decided to increase the plinth area of the flats from the originally advertised 1300 square feet to revised plinth area of 1730 sq. feet. The decision to increase the size of accommodation obviously resulted in refixation of tentative cost of the flats which was then worked out at Rs. 3.78 laces for the ground floor and Rs. 3.4 lacs for first and second floors. It is pleaded that respondent Board while revising the tentative cost of the flats took into consideration various factors including increased plinth area, additional facilities and better specifications being provided and increase in the cost of building material and labour. The mode of payment was also revised as set out in the letter dated April 11, 1989 and at the time of taking possession, petitioner was required to deposit Rs. 55,000/- for the ground floor. This revised plan and increase in the cost of flat were accepted by petitioner and he then started depositing instalments of Rs. 20,000/- each. Vide letter dated February 25, 1992 petitioner was allotted dwelling unit No. 91 of HIG Category I in Sector 45-A, Chandigarh. However, vide the same letter, he was asked to take possession of the flat on payment of Rs. 1,16,079/-as by then the total cost was increased from Rs. 3.78 lacs to 4.95 lacs. It is this increase as evidenced by letter vide which petitioner was asked to take possession that has been challenged by styling the same to be wholly arbitrary.
3. Besides challenging the increase in price on various grounds like delay in construction on account of fault of the respondent-Housing Board, there being no provision in the brochure of information and various other letters of allotment etc. with regard to increase in the price for any reason whatsoever, it has also been pleaded that one Dr. Surinder Sekhon, who was an old applicant of the same scheme as the petitioner, was allotted flat of identical design, size and plinth area in Sector 39-B, Chandigarh. Earlier, the tentative cost of said flat on the ground floor was fixed at Rs. 4 lacs. However, on September 13, 1991 Dr. Sekhon was issued letter of possession for dwelling unit No. 1080 HIG Category I in Sector 32-B, Chandigarh demanding a total consideration of Rs. 3.75 lacs only. As in the case of petitioner, in the case of flats in Sector 39-B also, all the price determining factors were duly considered by respondent-Board while fixing tentative cost at Rs. 4 lacs. However, in the case where the tentative cost has been fixed at Rs. 4 lacs, the Board granted possession at total price of Rs. 3.75 lacs whereas petitioner was asked to deposit an amount of about Rs. 1,17,000/- more, Again one Smt. Veena Kamboj, who applied under the 1986 scheme alongwith petitioner, was issued letter of possession Sated July 30, 1990 vide which total consideration demanded by respondent Board was Rs. 3,78,300/-. It is pleaded that there was no justification for demanding an amount of Rs. 3.78 lacs from Smt. Veena Kamboj and from petitioner an amount of Rs. 4.95 lacs for similar dwelling unit.
4. On the facts as have been noticed above, learned counsel for the petitioner, Mr. Raina vehemently contends that demand of Rs. 1,16,079/- at the time of taking possession instead of Rs. 55,000/- as fixed earlier within a period of thirty days from the date of issuance of letter is illegal, perverse, violative of Article 14 of the Constitution and against the principles of natural justice and equity. It is argued that the Board did not disclose the reasons for fixation of total consideration at Rs. 4.95 lacs as also that while revising the price of the flat from the advertised price of Rs. 2.25 lacs to Rs. 3.78 lacs, the respondent-Board had considered all relevant price fixation factors, petitioner having made huge deposits in accordance with the rescheduled instalments, could not be now called upon arbitrarily to deposit the amount over and above the one which was fixed then. The Board fixed tentative cost of similar flat at Rs. 4 lacs and allotted the same to Dr. Surinder Sekhon on September 13, 1991 for Rs. 3.75 lacs only five months before the issuance of impugned letter to petitioner and that he (petitioner) was not at all at fault if he could not be allotted a flat in the first draw of lots whereunder Smt. Veena Kamboj was handed over a flat for a total consideration of Rs. 3.78 lacs even though she was an applicant of that very scheme as the petitioner was and there being no distinguishing features between the case of petitioner and Smt. Veena Kamboj, the action of respondent-Housing Board was arbitrary, further contends the learned counsel.
5. The cause of petitioner has been opposed and in the written statement that has been filed on behalf of respondent-Housing Board, by way of preliminary objections it has been pleaded that the writ is not maintainable as it involves dispute which has arisen purely out of a contract which was entered into between petitioner and the Board. Respondent-Board, it is pleaded, floated Housing Scheme for general public in the year 1986 for different categories of three storeyed flats in different sectors of Chandigarh. As it was not possible in the nature of things to fix the price of flats to be constructed over a period of more than three years, respondent-Board always mentioned tentative cost of the flats on the basis of the cost of building material, land etc. prevailent at the time of framing of the scheme. Accordingly, under the scheme, respondent-Board had given tentative cost of category-I flat with covered area of 1300 Sq. feet at Rs. 2.25 lacs. It was further provided in the scheme that the Board reserved the right to make modifications in the design, scope of work, specifications and cost without assigning any reason. Under the heading 'Mode of Payment', respondent Board had given the schedule of payments and the amount of monthly instalments for each of the thee categories of flats for which applications were invited. There also it was made clear that the exact amount of monthly instalments for each category shall be worked out at the time of allotment after the consideration money i.e. the total cost of the flat, was known. It was further provided under the heading 'Handing over of possession' that the allottee shall be entitled to the delivery of possession of the flat only after he/she had completed all the formalities and paid all dues and furnished/executed documents as required. After going through the scheme, petitioner submitted his application on the prescribed form after getting it attested from Oath Commission on November 22, 1986 for the allotment of Category I flat. In the said application he certified that he had gone through and understood the terms and conditions of the scheme and he undertook to abide by the same. He also undertook to pay higher cost due to fluctuations in the prices of the building material or due to any other reason and the price of the flat finally fixed by the Board would be binding upon him. He had further furnished a declaration at the end of the application form that the above information was true to the best of his knowledge and belief and nothing had been concealed therein. This declaration was attested by an Oath Commissioner. The application was accepted and he was allocated ground floor in Sector 45. In order to improve the design and provide better accommodation and more facilities, respondent-Board prepared revised typical house plan and issued letters to all the registered applicants of category-I. The Board vide its letter dated April 11, 1989 wrote to petitioner that the design and accommodation in the flats had been changed. It was further mentioned therein that a room for the attendant with attached W.C., independent covered space for a Car Parking for each flat and one additional W.C would be provided and in addition the central stair case was also being taken to the terrace to provide an access to terrace for use by the first and second floor allottees. It was further stated in the letter addressed to all the applicants including petitioner that in view of the change in design and accommodation, the plinth area of the flat would increase from 1300 sq. ft to 1730 sq. fit. and it was also made clear that in view of the increased plinth area, additional facilities and better specifications being provided to the allottees and increase in the cost of building materials and labour, the tentative cost of the flat as per the new design was expected to be about Rs. 3.78 lacs for ground floor and Rs. 3.40 lacs for first and second floors. It was particularly made clear that the exact cost shall be determined on completion of the work. All the applicants including petitioner were requested to confirm within twenty days of the issuance of letter then-acceptance of revised design with revised tentative cost and the schedule of payment. Petitioner in reply to the letter aforesaid, accepted the condition and enclosed the requisite draft for Rs. 20,000/- regarding second instalment. The dispute in the facts, as narrated above, is stated to be of contractual nature which, it is pleaded, can not be entertained in writ jurisdiction of this Court.
6. On merits, the facts as given in the petition have not been denied and besides taking technical objections, which shall be mentioned in the later part of this Judgment all that has been stated for asking the petitioner to cough up an amount of Rs. 1,17,000/-, is that the estimate with regard to costs that were to be incurred and consequently charged from petitioner and other, were calculated in the beginning of year 1989 whereas the construction with regard to flats in Sector 45-A inclusive of that of petitioner was taken up in April, 1990 and, therefore, there was an increase in the labour charges and building material etc. The construction of 12 flats in Sector 45-A could not betaken up earlier due to the fact that the land was not free from encroachments and there were labour but raised on the plot of land on which the flats were to be constructed. Again, the land on which the flats were to be constructed, was in a low-lying area and the Board, thus, had to fill in deeper foundations to the extent of 8-10 feet as compared to 4-5 feet in the case of flats constructed in Sector 39-B. All this resulted in additional cost of approximately Rs. 10,000/- per unit. The undertaking given by petitioner in application form under Clause 16, which runs as follows, has also been pressed into service for dismissing the petition:-
"It is certified that:
(a) I have carefully gone through and understood the terms and conditions of the scheme and also gone through the Chandigarh Housing Board (Allotment Management and Sale of Tenements) Regulations, 1979 and do hereby undertake to abide by the same. I also undertake to pay higher cost due to fluctuations in the prices of the building material or due to any other reason and the price of the flat finally fixed by the Board will be binding upon me. I shall abide by the terms and conditions of allotment which may be altered by the Chandigarh Housing Board, Chandigarh from time to time and shall enter into such agreement with the Board as stipulated. I further undertake to accept any dwelling unit on any floor and in any sector which may be allotted to me by the Board."
7. Petitioner filed replication controverting specifically the preliminary objections raised by respondent-Board. It is pleaded that petitioner has not founded his claim against arbitrary enhancement of price of the flat on the basis of any contract. Insofar as the fixation of price at Rs. 3.78 lacs is concerned, the same is admitted and accepted. However, the subsequent enhancement of Rs. 1.16 lacs has alone been challenged. Petitioner has also accepted the revised plan and the price fixed at Rs. 3.78 lacs and that being so he has been depositing the instalments in accordance with the schedule fixed prior to the issuance of letter, Annexure A-3. At the time when the price of flat was worked out, all the price determining factors, such as, the cost of building material and labour and revised design were taken into account while projecting the cost to be about Rs. 3.78 lacs in future. What was contemplated was the price of the flats on the date of completion. In fact a note had been appended in Annexure P-2 at page 16 of the paper book which runs as follows:-
"Since the flats are expected to be completed earlier, the dates of payment of these instalments have been advanced."
There were 150 flats in the scheme which were to be constructed. 126 flats were constructed earlier and 12 flats thereafter. Out of 125 flats, petitioner could not be allotted a flat on account of the fact that several flats were allotted out of discretionary quote. In any case, it is pleaded, petitioner was not at fault for not having been allotted a flat when Smt. Veena Kamboj was allotted so. It is further pleaded that word 'tentative' is not a word of art and the respondent-Board could not take shelter of the expression when they themselves admitted in Annexure P-2 that all the price determining factors were taken into consideration while working out the cost of flat at Rs. 3.78 lacs. There is no need to mention other pleas taken in the replication as the same are repetition and reiteration of the pleas raised in the petition.
8. During the course of arguments, Chandigarh Housing Board prayed for an adjournment with a view to explain the delay in construction of flats. The case was accordingly adjourned and Shri S.S. Virdi, Chairman, Chandigarh Housing Board has filed an additional affidavit wherein steps that were taken on various dates culminating into completion of construction of flats, have been detailed.
9. On the facts that have been noticed above, the pertinent question that needs adjudication is as to whether the price of flats initially fixed, which was later on revised on account of revised plan and increased area, was tentative and if so, could the same be increased for any reason at the discretion of the Housing Board even though the increase in construction charges was wholly attributable to the respondent-Board itself. The petitioner also involves the question as raised by respondent-Board as to whether the matter is purely contractual and this Court under Article 226 of the Constitution of India should relegate the parties to their normal remedy of approaching the civil Court. Before any positive answer is given to the crucial questions recorded above, it shall be useful to examine various documents laying down fixing of price of the flats and various clauses vesting in the respondent Board the right to increase the price as also as to on account of what reasons the price could be increased.
10. The respondent-Board on June 2, 1988 issued to the petitioner an acceptance-cum-demand letter under Category-I intimating to him that he has been allotted ground floor of the scheme in Sector 45, Chandigarh as a result of draw held on May 14, 1988. He was asked to deposit the amount as per schedule given in the letter aforesaid through demand draft in the name of Chandigarh Housing Board. In paragraph 2 it is mentioned that "notwithstanding anything contained in this letter, your registration will be regulated strictly in accordance with the terms and conditions already circulated and as per advertisement and brochure and will further be subject to Chandigarh Housing Board (Allotment, Management and sale of Tenements) Regulations, 1979. It is not disputed that in the terms and conditions already circulated in advertisement and brochure, it was mentioned that the cost of category I flat was tentatively fixed at Rs. 2.25 lacs. Vide letter dated April 11, 1989 (Annexure P-2), respondent-Board intimated to petitioner that plinth area of 1300 sq. feet which was to be provided at tentative saleable cost of Rs. 2.25 lacs, has since been increased. It was further mentioned in the letter aforesaid that keeping in view the increased plinth area, additional facilities and better specifications now being provided to the allottees and the increase in the cost of building materials and labour, the tentative cost per flat as per new design was expected to be about Rs. 3.78 lacs for the ground floor and Rs. 3.40 lacs for first and second floors. The exact cost was, however, to be determined on completion of work. The mode of payment was revised as mentioned in the letter aforesaid. It was also mentioned therein that the Board reserved its right to make modification in the design, scope of work, specifications and cost without assigning any reasons. The note appended in this letter runs as under:-
"Since the flats are anticipated to be completed earlier, the dates for payment of these instalments have been advanced."
On February 25,1992, respondent-Board issued letter to petitioner conveying him that dwelling unit No. 91 of High category in Sector 45-A, Chandigarh was allotted to him as a result of draw of lots held on October 2, 1991. It was in this letter that he has been asked to deposit an amount of Rs. 1,16,079/- as enhanced price. Petitioner was asked to file an affidavit on non judicial stamp paper of Rs. 3.50/-. However, as stated above, petitioner instead of paying the amount and complying with the conditions of giving affidavit etc., has chosen to file the present petition.
11. Various documents i.e. information brochure and the terms and conditions laid therein for allotment of flats, the letter conveying increase in price on account of increase in the area, do unmistakably manifest that the price either initially fixed at Rs. 2.25 lacs or later revised at Rs. 3.78 lacs, was tentative.
12. The finding with regard to the first part of question having gone against the petitioner, it is now time to examine the validity in increase of price on any count whatsoever. This Court, after hearing learned counsel for the parties at considerable length, is of the considered opinion that the increase in the price, even though tentatively fixed, if challenged being arbitrary, has to be justified by the State or the Housing Boards which are undertaking the activities of the State in providing dwelling units to the citizens. Whereas there may be complete justification in increase of price if, for instance, the price for acquiring the land itself increases on account of land references filed by the land-owners who have been ousted while acquiring the land or for any other reason like increase in the cost of construction, hike of labour charges by those who are engaged in the construction work and various other factors, there would be no justification whatsoever for increasing the price for any reason which might have nothing at all to do with the increase in the cost of either acquiring the land for constructing the flats or houses, as the case may be or any other cogent ground. By simply mentioning the price to be tentative, as is now almost universal practice adopted by all the Housing Boards or even for that matter by Haryana Urban Development Authority, which is. almost the exclusive authority in the State of Haryana having undertaken the work of allotment of residential, commercial and industrial plots as also the built in flats or industries, as the case may be, respondent-Board can not increase the same without justifiable reasons. The price while making such allotments is always mentioned to be tentative. Even though it is tentative price which is mentioned, those who apply for allotment cannot imagine that the same would be increased many folds, sometimes to the extent of even 3-4 times than of that already fixed. A citizen may be, at the most, conscious of slight variation that may be within his reach. Be that as it may, if the tentative price is permitted to be increased many folds for the reasons not attributable to the increase of price of land or construction material and the same is on account of the reasons for which it is the Housing Board that is to be blamed, the citizen can not be penalised for that.
13. Coming to the case in hand, it is the case of respondent-Board itself that whereas the construction work was undertaken and completed with regard to 1988 flats including the one which was allotted to Dr. Sekhon immediately after the same was estimated at Rs. 4 lacs, there was almost no difference between the estimated price and the actual cost of construction whereas in the case of 12 flats constructed in Sector 45-A including House No. 91 allotted to petitioner, the price was estimated in the beginning of the year 1989 and the construction was taken up in August, 1990 and, therefore, there was increase in the labour cost, price of building materials etc. It is further the case of respondent-Board that construction work of 12 flats in Sector 45-A could not be taken up earlier due to the fact that the land was not free from encroachments and there were labour huts raised on the plot of land on which the flats had to be constructed. It is also stated that the area of 12 flats was low-lying and this resulted in additional cost of about Rs. 10,000/- per unit. In the additional affidavit that has been filed by Mr. S.S. Virdi, Chairman, Chandigarh Housing Board it has been pleaded that a meeting was held on March 10, 1986 in which 51 acres of land was earmarked in Sectors 39 and 45-A/B to be acquired. However, the scheme was floated and applications invited and the last date for submitting applications for allotment was fixed as December 4, 1986. By the time the scheme was floated, the land had not been even acquired. On February 6, 1987 letter was written to Chandigarh Administration for allotment of land and supplying layout plan. Reminder of the same was given to the Chandigarh Administration by the respondent-Board on May 7, 1987. Once again a letter was written to Chandigarh Administration for allotment of land on June 25,1987. It was only on December 11,1987 that the land was allotted in Sector 45-A by the Estate Officer to the Housing Board. It is, thus, clear that before the land could have been allotted to the Housing Board, the scheme had since already been floated and applications invited and even initial money was got deposited from those who aspired to get a flat. On December 14, 1987 a letter was received regarding supersession of layout plan dated November 16, 1987 and due to encroachments in the form of hutments (JHUGGIES) the area could not be earmarked. The Board started revised layout plan then. On September 23, 1988 revised layout plan was forwarded to the Chandigarh Administration for supplying area list and Non-Encumbrance Certificate. On February 2, 1989 the matter was referred to the Chandigarh Administration for allowing cutting of the trees standing on the site. On March 28, 1989 cutting of four trees was allowed and revised layout plan was forwarded to Chandigarh Administration for issuing revised area list. On December 9, 1985 Chandigarh Administration issued revised area list. On May 10,1990 the Chandigarh Administration clarified about the area list due to modification in the size of some blocks in the layout plan. Tender was invited for construction of houses on May 23,1990 and on August 6, 1990 works for construction of houses were allotted. On September 20, 1990 a letter was written to Chandigarh Administration for removal of the encroachments of hutments. On January 25, 1991 letter was written to the contractors for resuming construction as encroachments stood removed. The draw for allotment of houses was held on October 2, 1991, and construction was completed on October 31, 1991. Prices were refixed for allotment and letter was accordingly issued on February 25, 1992.
14. Letter, Annexure P-2 increasing the tentative price from Rs. 2.25 lacs to Rs. 3.78 lacs had a note appended to it saying therein that since the flats are anticipated to be completed earlier, therefore, the dates of payment of these instalments have been advanced. By the time letter aforesaid was written and the note appended, the encroachments had since not been cleared. The respondent-board, thus, had knowledge of the fact that there were encroachments and some area of the land on which flats-were to be constructed. Irrespective of that the scheme was floated, applications invited, initial money got deposited, plan revised and in consequence thereof revised instalments were also got paid by the allottees. For the first time on September 20, 1990 a letter was issued to the Chandigarh Administration for removal of the encroachments. This process, as per the affidavit filed on behalf of the respondent-Board, took about five months and after these five months, it is stated, the cost of construction became far more than it was earlier fixed. The facts that have been noticed above, do tend to raise an accusing finger towards the Housing Board but this Court would rather choose to refrain from giving any finding on the ground that the preliminary objection raised by the respondent-Board with regard to non-maintainability of the present petition as the matter pertains to contractual liability, is going to be up-held. In these circumstances any definite opinion expressed by this Court would obviously prejudice the case of respondent Board before the Civil Court. However, on one count petitioner is certainly entitled to the relief which, of course, shall be granted to a limited extent in the present petition. The facts narrated above do unmistakably disclose that it was a smaller area on which there were encroachments on account of illegal hutments constructed there. Therefore, whereas some flats could be constructed earlier, there was delay in constructing 12 flats inclusive of that of petitioner. In those circumstances, was the respondent Board justified in recovering the enhanced cost of construction from only the allottees of these 12 flats or that amount ought to have been split upon the allottees of the scheme as such, the Court is of the considered view that it is the latter course which ought to have been adopted and burdening the petitioner and eleven others alone is wholly unjustified as also arbitrary. It is an accepted position that when cost of acquiring the land increases on account of enhancement of compensation by the Courts or for any other reasons, it is all the plot owners who are asked to cough up the increase in the price of the land proportionate to their holdings and the money that they had already paid. This is the only justifiable way in which the increased price could be recovered. The increase has been in completing a scheme and not in completing a particular dwelling unit. For example, if big area of land is acquired for public purpose i.e. developing the same into residential, commercial for industrial area, only a few land owners who own only about ten acres of land, make reference under Section 18 and are able to get enhanced compensation, can it be said that the allottees of that ten acres only shall pay the increased price. This Court is of confirmed view that it is the allottees of the scheme who shall have to pay the proportionate increase and if only those who are allottees of that piece of ten acres are asked to give the entire enhanced compensation the same would be arbitrary, thus, violating Article 14 of the Constitution of India. Admittedly, in Sector 45 A & B, 158 houses were to be constructed and, therefore, the allottees of all the houses should have been asked to pay the increase in constructing some of the houses, construction of which could start only when encroachments were removed.
15. Insofar as preliminary objection raised by respondent-Board with regard to maintainability of petition as the same endeavours to relieve the petitioner of his contractual obligation arrived at, is concerned, the same deserves to be up-held. Learned counsel for the respondent-Board with a view that the aforesaid contention is up-held, relies upon Har Shankar and Ors. v. The Deputy Excise & Taxation Commissioner and Ors., A.I.R. 1975 S.C. 1121; Radha Krishan Agarwal and Ors. v. State of Bihar and Ors., 1977(3) S.C.C. 457; The Divisional Forest Officer v. Bishwanath Tea Co. Ltd., A.I.R. 1981 S.C. 1368 (All Judgments of Supreme Court) and the Judgment of Division Bench of this Court in Chandigarh Housing Board v. Baldev Singh Dhanju and Ors., A.I.R. 1992 Punjab & Haryana, 15. It shall be seen that in Har Shankar and Ors. case (supra) the appellants of the said case i.e. Har Shankar and Ors. had given bids and on such acceptance, the contract between the bidders and the Government became concluded and a binding agreement came into existence between the parties. The conditions of auction had become the terms of contract and it was on those terms that licences were granted to the successful bidders. It was held that Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred and that a writ is not an appropriate remedy for impeaching validity of contractual obligations. In M/s. Radha Krishana Agarwal and Ors. case (supra) the petitioner of the said case had filed a petition under Article 226 of the Constitution of India which was directed against the orders of the State Government revising the rate of royalty payable by them under the lease granted to them to the Forest Department. Question of breach of contract was raised and it was stated that the action of the respondents was malafide. It was held by the Supreme Court in the aforesaid case that the discrimination complained of must be involved right at the threshold or at the time of entry into the field of contract regarding consideration of person with whom the Government would contract. At this steps, no doubt, the State acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Articles 14 or of any other constitutional provision when the State or its agents, purporting to act within the field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract." In Bishwanath Tea Co. Ltd.'s case (supra) the Company had tried to enforce through writ petition the right to remove timber without the liability to pay royalty. It was held that the Company was not enforcing its right under Rule 37 of the Assam Land & Revenue and Local Rates Regulation but was seeking to enforce a contractual right under the specific terms of contract of lease agreed to between the Company and the Government and such contractual right, therefore, could not be enforced in writ petition. In Chandigarh Housing Board v. Baldev Singh Dhanju's case (supra) a Division Bench of this Court held that when the contract assumes finality i.e. a complete contract comes into existence, no order or writ can be issued for refixing price of flats.
16. Mr. Raina, learned counsel for the petitioner has endeavoured me to take a different view on the basis of Judgments of Supreme Court in Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., A.I.R. 1979 S.C. 1628 and Sanjay Place Group Housing Association and Ors. v. Agra Development Authority and Ors., J.T. 1992(2) S.C. 361. The first case pertained to eligibility of person/persons to obtain a contract. It was in the aforesaid circumstances that it was held that pre-requisites for obtaining a contract had to be taken into consideration and the one who would not have eligibility as prescribed under the advertisement could not have a contract in his favour. It was not a case of concluded contract where one party was complaining of enforcement of contractual obligation from the others. In the latter case it was only the additional demand which pertained to profit which was adversely commented upon by the Supreme Court. The aforesaid demand was held not consistent with the agreement and no rational basis to support the same was even suggested by the counsel appearing for the other side. Insofar as the additional demand with regard to actual costs was concerned, the same was upheld. As has been mentioned above in the earlier part of the Judgment, there is a concluded contract between the parties. No case of any infringment of either constitutional provisions or violation of any , Statute or rule has been pointed out. The petitioner in the matter of concluded contract has necessarily to approach the Civil Court, which might relieve him of the liability by either holding the contract to be void or on any other grounds that may be available to the petitioner under the Contract Act. In the present case as well it is open for the petitioner to take up the matter before the Civil Court to claim the desired relief on the ground that even though the price initially fixed or later revised was tentative, yet the increase so disproportionate to the initial price fixed, is wholly unjustifiable or attributable to the faults of the Housing Board itself and shall not be binding upon the petitioner. The petitioner may even press into service other known grounds under the Contract Act with a view to relieve him from the increase asked for from him. However, no relief can be granted to him in the writ proceedings when the matter pertains pure and simple to the concluded contract. The view that I have taken in this case has also been taken by me in Civil Writ Petition No. 2509 of 1991 titled as "Parekh Plantinum Private Ltd. v. National Fertilizers Ltd., "decided on November 20,1992.
17. For the reasons recorded above, this petitioner succeeds partially. The notice asking petitioner to pay the additional price as mentioned in the earlier part of the Judgment, is quashed to the extent that it is only the proportionate increase in the price that may come to the share of petitioner if such increase is split upon all the allottees of the scheme i.e. all the allottees of all the houses numbering 158, that the petitioner can be asked to pay. This relief can be granted to petitioner as it was no where mentioned in any of the advertisement, brochure or various letters mentioned above, that increase in constructing an individual house or a group of houses, like 12 in the present case, shall have to be paid by the allottees of the said houses only. No such or similar clause is discernible from the documents aforesaid and the action of the respondents in asking the increase in constructing the 12 houses from petitioner and 11 other allottees has already been held to be violative of Article 14 of the Constitution of India. This petition thus, is allowed partly in the manner indicated above. There shall, however, be no order as to costs.