Orissa High Court
Prabhanjan Mohapatra And Others vs State Of Odisha And Others on 21 October, 2021
Author: B.P. Routray
Bench: B.P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.764 of 2020
(From the judgment dated 9th November, 2020 of the learned Single
Judge passed in W.P.(C) No.4114 of 2020).
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Prabhanjan Mohapatra and others ...... Appellants
Versus
State of Odisha and others ...... Respondents
Advocate(s) appeared in this case:-
For Appellants : Mr. P.K.Rath, Advocate
For Respondents : Mr.N.K.Sahu, Advocate
(For Respondent Nos.2 & 3)
Mr.M.S.Sahoo, AGA
(For Respondent No.1)
CORAM : THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
21st October, 2021 B.P. Routray,J.
1. The judgment of the learned Single Judge dated 9th November, 2020 passed in W.P. (C) No. 4114 of 2020 is challenged in the present writ appeal.
2. The Appellants along with others filed the writ petition challenging unilateral enhancement of the cost of the housing project by the W.A. No.764 of 2020 Page 1 of 6 // 2 // Respondents. Their grievance is that, Berhampur Development Authority (Respondents 1 to 3) initially advertised for different categories of houses in the year 2008 under the scheme, namely, Vivek Vihar Phase-II Housing Project near Ambapua level crossing at Berhampur. The Appellants accordingly applied for and deposited the initial amount as per the scheme. Thereafter the authorities did not proceed in the matter and the project was delayed. Subsequently on 21st November, 2013, the Appellants were asked to pay the enhanced cost of the plot in the respective category within a fixed time, failing which their original applications shall be rejected.
3. Being aggrieved by the same, the Appellants preferred the writ petition. Their main contentions of challenge are that, initially the project was for land along with house, whereas the enhanced demand of price is for the land only. Further, when it was earlier stated for allotment on lottery basis, later it was decided to make allotment through auction.
4. The Berhampur Development Authority (BDA) stated in its response that, the Appellants were some of the applicants for allotment of different categories of houses in the initial housing scheme published in the year 2008. The project was delayed as no response was made from any contractor for construction of the housing complex and there was lack of building materials within the price as per the brochure. So the authorities decided not to construct any house and to work out the alternative to provide plots only to the applicants, who express their explicit intention of purchasing the lands of different sizes at the price fixed by the authority. It is also contended that the cost of the housing W.A. No.764 of 2020 Page 2 of 6 // 3 // complex so fixed in the earlier brochure of the year 2008 was provisional and tentative, which was subject to change/increase depending upon various factors including the cost of land, cost of construction and the expenditure for other infrastructural facilities. Clause 18 of the brochure also stipulates for charging the additional cost arising out of special infrastructural development and escalation. The delay was unintentional and the enhanced price was for the increased cost of special infrastructural development.
5. The learned Single Judge held that the contract between the Appellants and the BDA was incomplete and not a valid contract, and the price fixed in the brochure was tentative and subject to further increase depending upon various factors. The learned Single further held that no arbitrary and whimsical action on the part of the BDA could be substantiated and as such, no illegality has been committed by the BDA. The writ petition was dismissed.
6. It is submitted on behalf of the Appellants that, the learned Single Judge has failed to appreciate the bench mark valuation of the locality to justify the enhancement of price made by the BDA and it is incorrect to hold that the contract was incomplete for want of valid acceptance of the offer. It is also submitted that, after the initial deposit received by the BDA for a long period of eight years, their decision to demand the enhanced cost at the rate of ten times more than the cost prescribed in the initial brochure, is completely illegal and arbitrary.
7. Admittedly, no allotment order was issued in favour of the Appellants by the BDA. Clause-18(ii) stipulates that the authority W.A. No.764 of 2020 Page 3 of 6 // 4 // reserves the right to alter or modify the lay out plan, the size and shape of the assets due to exigencies arising out of site condition and other contingencies or due to force majeure. Further, Clause 18(x) stipulates that any additional cost arising out the special infrastructural development and escalation shall be paid by the allottees before execution of lease-cum-sale deed. Clause 19 also prescribes that the BDA reserves the right to alter any term or condition of the allotment in the event of any such contingencies and if the circumstances are beyond the control of the authority it may defer or suspend the scheme for such period as it may consider expedient.
8. Some important factors to constitute a valid contract as per the provisions of the Indian Contract Act are, there must be a valid offer, unqualified acceptance and agreement of the parties to abide by the terms and conditions to perform their respective part of contract. The issuance of the brochure in the year 2008 was an invitation for offers and the offers made by the Appellants was yet to be accepted unconditionally by the BDA. The legal position has been explained by the learned Single Judge by referring to various decisions reported in 2007 (Supp.-1) OLR-811 (Saubhagya Ranjan Kanungo Vrs. Smt.Prafulata Mohapatra), AIR 1998 SC 1400 (Tarsem Singh Vrs. Sukhminder Singh) and Vol.60 (1985) CLT 514 (Sri Sri Narayan Gosain represented by Prafulla Kumar Nayak and others Vrs. The Collector, Cuttack and others). Thus upon perusal of the terms and conditions prescribed in the brochure, the finding of the learned Single Judge that no concluded contract was there between the parties cannot be faulted with.
W.A. No.764 of 2020 Page 4 of 6// 5 //
9. The contention of BDA that despite publication of tender notice by it inviting applications from eligible contractors for construction of the housing complex no response was received, is not disputed by the appellants. Under such compelling circumstances the decision of BDA to not construct houses cannot be said as arbitrary. As stated above, the stipulations made in the brochure is manifest that the prices fixed in the year 2008 are tentative and subject to enhancement depending upon various factors.
10. The other aspect relating to enhancement of the cost appears to be a part of pricing policy which comes within the executive capacity of the BDA. In the facts of the present case, the prices mentioned in the brochure for different categories were tentative and subject to increase in future. Neither any hostile discrimination nor any arbitrariness is noticed on the part of the BDA in such action and the Appellants have not produced any material on record to satisfy the action of the BDA as arbitrary. In the case of Shelly Lal v. Union of India, 2021 SCC Online SC 22, it is held :
"5. Several provisions of law confer statutory rights on purchasers of real estate and invest them with remedies enforceable at law. These include the Consumer Protection Act, 1986, the Real Estate (Regulation and Development) Act, 2016 and the Insolvency and Bankruptcy Code, 2016. Parliament has enacted a statutory regime to protect the rights of purchasers of real estate and created fora which are entrusted with decision making authority.
6. A decision of a public authority which is entrusted with a public duty is amenable to judicial review. But it is quite another hypothesis to postulate that the decision making authority should W.A. No.764 of 2020 Page 5 of 6 // 6 // be taken over by the court. The latter is impermissible. It would be inappropriate for this Court to assume the jurisdiction to supervise the due completion of a construction project especially in facts such as those presented in the present case. This will inevitably draw the court into the day to day supervision of the project, including financing, permissions and execution- something which lies beyond the ken of judicial review and the competence of the court. The court must confine itself to its core competencies which consist in the adjudication of disputes amenable to the application of legal standards. We, consequently, leave it open to the petitioners to pursue the remedies available in law."
11. A careful perusal of the impugned judgment does not make out any ground for interference with the impugned judgment of the learned Single Judge.
12. In view of the discussions made above, the contentions of the Appellants are found without merit and accordingly, the writ appeal is dismissed.
(B.P. Routray) Judge ( Dr. S. Muralidhar) Chief Justice C.R.Biswal, Secy.
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