Madhya Pradesh High Court
Madhya Pradesh Housing And ... vs Dr. A.K. Chaurasia on 31 July, 2014
Author: Alok Verma
Bench: Alok Verma
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
W.A. No.1550/2013
M.P. Housing and Infrastructure Development Board
Vs.
Dr. Sudha Jain
W.A. No.1563/2013
M.P. Housing and Infrastructure Development Board
Vs.
Dr. A. K. Chaurasia
W.A. No.1565/2013
M.P. Housing and Infrastructure Development Board
Vs.
B. S. S. Parihar
*********************************************************
W.A. No. 175/2014
M.P. Housing and Infrastructure Development Board
Vs.
Gajanan Kadu
W.A. No.176/2014
M.P. Housing and Infrastructure Development Board
Vs.
Smt. Manisha Jain
2
W.A. No. 192/2014
M.P. Housing and Infrastructure Development Board
Vs.
Arastoo Jain
W.A. No.174/2014
M.P. Housing and Infrastructure Development Board
Vs.
Shaniram Saryam
W.A. No.179/2014
M.P. Housing and Infrastructure Development Board
Vs.
Subhash Bobde
W.A. No.178/2014
M.P. Housing and Infrastructure Development Board
Vs.
Prabhakar Raut
W.A. No.199/2014
M.P. Housing and Infrastructure Development Board
Vs.
Vimla Shrivastava
W.A. No.177/2014
3
M.P. Housing and Infrastructure Development Board
Vs.
Yogeshwar Dharpure
**************************************************
W.A. No.170/2014
M.P. Housing and Infrastructure Development Board
Vs.
Rameshwar Lokhande
W.A. No.103/2014
M.P. Housing and Infrastructure Development Board
Vs.
Nilesh Kumbhare
W.A. No.104/2014
The State of Madhya Pradesh
Vs.
Smt. Shikha Gupta
W.A. No.180/2014
M.P. Housing and Infrastructure Development Board
Vs.
Aniruddha Thakre
W.A. No.171/2014
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M.P. Housing and Infrastructure Development Board
Vs.
Bhaskar Rao Raut
W.A. No.172/2014
M.P. Housing and Infrastructure Development Board
Vs.
Govind Raut
W.A. No.134/2014
The State of Madhya Pradesh
Vs.
Nirpat Singh Tekre
W.A. No.135/2014
The State of Madhya Pradesh
Vs.
R. C. Gupta
W.A. No.136/2014
The State of Madhya Pradesh
Vs.
Smt. Pooja Chawla
W.A. No.137/2014
The State of Madhya Pradesh
Vs.
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Smt. Sheela Patel
W.A. No.138/2014
The State of Madhya Pradesh
Vs.
Smt. Sudha Takre
W.A. No.139/2014
The State of Madhya Pradesh
Vs.
Ku. Tripti Gupta
W.A. No.200/2014
M.P. Housing and Infrastructure Development Board
Vs.
Manish Chourasiya
W.A. No.197/2014
M.P. Housing and Infrastructure Development Board
Vs.
Yogesh Kumar Tiwari
W.A. No.198/2014
M.P. Housing and Infrastructure Development Board
Vs.
Shankar Rao Sakhre
W.A. No.196/2014
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M.P. Housing and Infrastructure Development Board
Vs.
Dinesh Ghogre
W.A. No.111/2014
M.P. Housing and Infrastructure Development Board
Vs.
Lalita Singh
W.A. No.124/2014
M.P. Housing and Infrastructure Development Board
Vs.
Barkha Saryam
W.A. No.114/2014
M.P. Housing and Infrastructure Development Board
Vs.
Lalita Singh
W.A. No.110/2014
M.P. Housing and Infrastructure Development Board
Vs.
Sandeep Kumbhare
W.A. No.112/2014
M.P. Housing and Infrastructure Development Board
7
Vs.
Sahebrao Nimberkar
W.A. No.115/2014
M.P. Housing and Infrastructure Development Board
Vs.
Swapnil Jambolkar
W.A. No.113/2014
M.P. Housing and Infrastructure Development Board
Vs.
Bhaskar Rao Raut
W.A. No.125/2014
M.P. Housing and Infrastructure Development Board
Vs.
Manoj Kumar Mahore
W.A. No.123/2014
M.P. Housing and Infrastructure Development Board
Vs.
Sonali Saryam
W.A. No.121/2014
M.P. Housing and Infrastructure Development Board
Vs.
Chandrabhan Jambolkar
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W.A. No.122/2014
M.P. Housing and Infrastructure Development Board
Vs.
Mangla Kalbande
********************************************************
W.A. No.206/2014
M.P. Housing and Infrastructure Development Board
Vs.
Hukum Chand Jain
W.A. No.203/2014
M.P. Housing and Infrastructure Development Board
Vs.
Smt. Laxmi Rani
W.A. No.205/2014
M.P. Housing and Infrastructure Development Board
Vs.
Smt. Munni Jain
**********************************************
W.A. No.144/2014
Property Officer
Vs.
Smt. Geeta Soni
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Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Shri Alok Verma, J.
______________________________________________________
Shri P. K. Kourav, with Shri R. K. Samaiya, Shri Rakesh
Jain, Shri Vivekanand Awasthy, , Shri Himanshu Mishra, Shri
Piyush Dharmadhikari, Shri Rohit Jain and Shri G. P. Dubey
learned counsel for the appellants.
Shri R. N. Singh, learned Senior Counsel with Shri Vijay
Shukla, Shri Hemant Shrivastava, Shri Jaideep Sirpurkar, Shri
A. Mukhopadhyay, Shri A. K. Singh and Shri Deepak
Raghuvanshi for the respondents.
__________________________________________________
O R D E R
(...../7/2014)
Per : Shri Rajendra Menon, J.
By a common order passed on 21.11.2013 the
learned Writ Court disposed of about 43 writ petitions and the
main order was passed in W.P. No.15692/2013 - Dr. Sudha
Jain and others Vs. State of M.P. and others.
2. As the questions of law decided by Writ Court is
identical in nature with slight variation in the facts, all these
writ appeals which have been filed under Section 2(1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko
Appeal) Adhiniyam, 2005, are being disposed of by this common
order.
3. Based on the different areas where the disputed
properties are located and based on some difference in facts the
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cases have been bunched together in five different groups.
However, the only question of dispute in all the cases are with
regard to fixation of price for the land based on the Collector
guide lines for a particular year
a. The first bunch consists of the following Writ
Appeals No.1550/2013, W.A. 1563/2013 and W.A. 1565/2013
and they pertain to allotment of Nice Duplex/ Nice Triplex/ Nice
Duplex (Corner ) in Riviera township, Bhopal. The controversy
in this class of category of cases pertains to price fixation of
land with regard to 36 houses which are either Duplex or
Triples as indicated herein above.
b. The second bunch of cases pertains to
allotment of 8 HIG Senior Houses situated in Chhindwara and
the cases in this category are Writ Appeals Nos.175/2014,
W.A.176/2014, W.A. 192/2014, W.A.174/2014, W.A.
No.179/2014, W.A.178/2014, W.A.199/2014 and W.A.
NO.177/2014.
c. The third bunch of cases pertaining to allotment
of 112 houses under a scheme for the Economic Weaker Section,
in the town of Chhindwara and these cases are Writ Appeal Nos.
170/2014, W.A.103/2014, W.A.104/2014, W.A.180/2014,
W.A.171/2014, W.A.172/2014, W.A.134/2014, W.A. 135/2014,
W.A.136/2014, W.A.137/2014, W.A. 138/2014, W.A.139/2014,
W.A.200/2014, W.A. 197/2014, W.A.198/2014, W.A.196/2014,
W.A.111/2014, W.A.124/2014, W.A.114/2014, W.A.110/2014,
W.A.112/2014, W.A.115/2014, W.A.113/2014, W.A.125/2014,
W.A.123/2014, W.A.121/2014 and W.A. No.122/2014.
d. The 4 th category of cases pertains to allotment
of 25 HIG Duplex houses in Hari Singh Gaur Nagar, Sagar and
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these cases are Writ Appeal Nos. 206/2014, W.A. No.203/2014
and W.A. No.205/2014.
e. The Fifth and last category is a single case
bearing No. Writ Appeal No.144/2014 pertaining to allotment of
a house in the City of Satna.
4. The question of law considered and decided by the
learned Writ Court which have been called in question in all
these writ appeals pertains to fixation of price for the land and
the principle applied by the appellant Board by basing it on the
Collector guide lines issued for the purpose of assessing market
value of a property under the Stamps Act. The main controversy
that was evaluated and decided by the learned Writ Court
pertains to the method adopted for fixing the price of the land
and linking the cost price of the land with the Collector guide
lines prevailing in the year 20112012. The petitioners in each
of the cases had challenged the pricing policy pertaining to the
land mainly on the ground that linking of price of land and
fixing it in accordance to the Collector guide lines which keep
on changing every year is not correct and it was their contention
before the Writ Court that the pricing of the land should be
based on the price of land prevailing when allotment of the
house as was made to them after draw of lottery. It was there
case that in a process for allotment under the Self Financing
Scheme such a procedure cannot be followed. These assertions
of each of the petitioners having been accepted by the learned
Writ Court and mandamus having been issued to the appellant
Board to fix the price as it existed on the date of issuance of
allotment letter, these appeals have been filed by the Board.
5. In each of the appeals it is the contention of the
Board that pricing has been done in accordance to the scheme,
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the rules and the policy of the Board and the so called allotment
said to have been made in favour of the allottees based on
which the learned Writ Court has decided the controversy is not
the allotment but is only a registration granted to them which is
misconstrued to be a allotment by the learned Writ Court.
6. Having crystallized the controversy as indicated
herein above, we now proceed to narrate certain facts which
may be relevant for deciding these appeals and thereafter to go
into the question of law and disputes of fact, if any, involved in
the matter as certain facts which are different in each of the
cases may be relevant to be taken note of.
7. The main feature in all the cases are that the houses
allotted in each of the cases are based on the self financing
scheme and the appellant Board has formulated its own policy
for the purpose of implementing its scheme for allotment of
houses. Annexure P/4 at page 159 of the paper book is the
scheme for allotment of houses under various schemes of the
Board and the procedure and method for allotment of houses
under the self financing scheme is also indicated therein.
8. As the said scheme is very much relevant for deciding
the controversy involved, it may be appropriate to take note of
the peculiar features of the scheme. It is indicated in Annexure
P/4 that for allotment of houses under the self financing scheme
the prospective applicant has to get himself registered, based
on an advertisement which is issued indicating the features of
the project, the price and other particulars of the houses etc.
The advertisement is to be published in the Newspaper, the
prospective purchaser will have to submit the application for
registration and at the time of registration, he will have to
deposit 10% of the sale price as is notified in the advertisement.
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It is further provided in the scheme that after his application is
accepted for registration, the remaining 90% of the price for the
house and land will have to be given in 4 or 5 installments
during the process of construction or as the Board may decide
and finally if in the end there is any difference in the final sale
price determined after evaluating the actual cost of construction
etc. then the difference will have to be given before possession
is handed over and the transfer affected through a registered
instrument. The scheme provides that the applicant will have
an option to deposit the entire cost price of the house in one
installment at the time of registration and if he does so, he will
be entitled to certain interest at the rate of 8% on the amount so
deposited. It is further indicated that transfer of the house and
land shall be affected only after the transfer deed is executed.
Various eventualities in the matter of recovery of penal interest
at the rate of 16% in case of default in paying the installment
and various other factors are indicated in the scheme. A
provision in the matter of options available to the applicant for
withdrawal is also provided in case they do not agree with the
final price fixation.
9. Thereafter at page 162 it is indicated that
advertisement shall be issued in the Newspaper by the Board
and calling for interested persons to submit their application for
registration. The application along with requisite application fee
shall be submitted within the time stipulated, 10% of the
proposed cost price through challan in the notified bank at the
time of registration. It is indicated that if the number of
applications received is equal to the houses to be allotted, the
houses shall be allotted to the applicants as may be eligible, but
if the number of applications received are more than the
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available houses, the eligible applicants will be selected by
draw of lottery and after intimation to them they may proceed
to deposit the installments as may be fixed. It is indicated in
the Scheme that registration is only provisional. It does not
give them any right and the registered allottees has to make
payment of the actual cost price which may be worked out after
completion of work . It is indicated in page 163 that the entire
amount, as indicated in the advertisement, or as may be
determined will have to be deposited before possession of the
house and its transfer is affected. Certain provisions are made
in the scheme to say that the price fixed in the advertisement
and offered at the time of registration is only provisional and is
liable to be changed as and when the work progresses
depending on the cost escalation. In the scheme it is
stipulated that the Board will make endeavor to ensure that the
final pricing does not increase beyond 10% of the proposed
price as indicated in the advertisement. It is based on these
provisions of the scheme that in all the cases, that the
advertisement were issued and the petitioners submitted their
offers and were granted the so called registration. At this stage
it may be indicated that even though in the order passed by the
learned Writ Court, this is treated to be a allotment but in these
appeals, it is the specific case of the appellant Board that this is
only a registration of the prospective allottee and not a final
allotment. This is one of the controversy involved which we
would advert to at an appropriate stage. We have only
indicated the scheme as answer to the disputed question would
depend on the interpretation and consideration of this scheme.
10. Now we may go into the facts of each category of
cases and indicate them as they appear on record. In the first
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category of cases pertaining to Riviera township, Bhopal it is
seen that the land originally belonged to the Veterinary
Department, Government of Madhya Pradesh. A Memorandum
of understanding was entered into between this department and
the appellant Board and about 13.71 acres of land was
transferred by this memorandum of undertaking to the Board
and the cost for this transfer indicated in this memorandum is
10.95 crores at the rate of Rs.1972/ per sq.m. After taking
possession of this entire land in a phased manner its
development has taken place and apart from the 36 houses in
dispute three other categories of houses have been constructed
in this land. 132 flats have been constructed along with the 36
bungalows and construction of these 132 flats started earlier
and the land for both these projects were developed together
and in fact from the map Annexure P/14 available at page 105
of the paper book it is seen that 36 bungalows are not
constructed separately in one lot, but they are constructed in
three different locations and are in between the 132 flats/
houses. Both these 132 flats/ houses and 36 bungalows (in
dispute) are located in Phase I and entire land for this purpose
has been developed together. According to the respondents/
petitioners the value of land collected from the prospective
purchaser of 132 houses is Rs.6410/ per sq.m. That apart, 146
houses have been constructed which have been allotted to the
Members of Parliament, MLA's etc. and according to the
petitioners this allotment made in March 2007 is at a cost of
Rs.7825/ per sq.m of land. So far as land for the 36 Bungalows
is concerned, documents evidencing these as Annexure P/34
page 148, 152 and 153 of the paper book, show that when the
advertisement was initially issued in the year 2007, the cost of
16
the land was shown as Rs.9000/ per sq.m. It was thereafter
increased to Rs.12500/ per sq.m. then to Rs.15000/ per sq.m.
and finally to Rs.30,000/ Sq.m. Be it as it may be, it is the
case of each of the petitioners that originally when the
advertisement was issued and when the offers were called for,
for these 36 houses in November 2007, the cost price of Nice
Duplex as indicated as Rs.40 Lacs, that of Nice Triplex is Rs.45
Lacs and of Nice Duplex Corner at Rs. 53 Lacs and the
construction cost was indicated as Rs.9800/ per sq.m. and the
cost of the land is Rs.12500/ per sq.m. By adding to them
certain supervision charges etc. the total price was fixed. It is
the case of the petitioners that they applied in pursuance to the
advertisement and on 14.12.2007, after drawal of lottery each
of the eligible applicant was communicated on 20 th December
2007 vide Annexure P/9 the fact about their registration for
allotment of a house .
11. According to the petitioners, as they had already deposited
10% of the cost price at the time of registration, they started
depositing the remaining installments in accordance to the
advertisement issued and the demand of the Board made in its
communication dated 20th December, 2007 (Annexure A/9), and it is
the case of each of the petitioners that they have deposited the entire
cost price as indicated in the allotment letter (Annexure A/9) by
December 2009. They say that either in installments or in one
lumpsum payment, the price has been deposited. It is their case that
after they had deposited the amount in the year 2007 and when most
of the amount was deposited, nothing was done for a period of more
than two years, when all of a sudden a communication was received
by each of the allottees on 18.6.2009, by separate letters - Annexure
R/4 available at page 515 of the paper book, to say that the cost price
17
as was earlier notified, has increased and it was indicated that the
price which was earlier notified in the advertisement as 53 Lacs has
now increased to 66.17 Lacs for Nice Duplex (Corner); to 43.95 Lacs
from 40 Lacs for Nice Duplex; and, from 45 Lacs to 55.87 Lacs for Nice
Triplex. In this communication, it was indicated that now the cost
price of the land which was originally notified as Rs. 12500/ per
square meter is increased to Rs. 15,000/ per square meter. It is the
case of the allottees that many of them protested and they have
brought on record certain protest letters for example - one of the
allottees Smt. Kavita Kumar in her communication dated 2.7.2009 has
objected to the increase and she says that in pursuance to the
advertisement the entire amount of cost indicated has been deposited
by her i.e.. Rs. 40 Lacs and now without doing anything for more than
two years and without completing the project within a period of 18
months, as indicated in the advertisement, asking for the difference in
the price is not justified. It is seen from the records that each of the
petitioners protested with regard to the exhorbitant increase in the
cost price of the land.
12. Similar is the situation with all other allottees and
available on record are certain objection of most of the allottees,
which goes to show that they had communicated that they had
deposited the entire amount i.e. cost price of the house, either in
installments or in one lumpsum payment, much before this notice
was issued on 18.6.2009. The communication made by the
allottees is available on record from Annexure R/5 onwards.
13. However, it is the case of the Board that even though
some protest was received as indicated hereinabove, most of the
allottees agreed for the increase. Be it as it may be, after the
aforesaid action was taken when the construction was completed
18
and the final call was made, each of the petitioners was informed
that apart from increase in the construction cost, now they have
to pay a sum of Rs. 30,000/ per square meter, as cost of the land.
As a consequence thereof, for niceduplex (corner), the cost price
which was initially shown as Rs. 53 Lacs was shown to be 101.02
Lacs. The cost price of a niceduplex ordinary which was
originally show as Rs.40 Lacs was increased to Rs. 73.17 Lacs;
and, that of nice triplex was increased to 79.84 Lacs. The cost of
construction which was originally shown as 9800 per square
meter increased to Rs. 13,000/ per square meter and certain
other charges were also incorporated.
14. A detailed chart indicating the manner in which the
price fluctuation was undertaken by the Board is reproduced by
the learned Single Judge in page 21 of his order, in a tabulated
form, and this goes to show that originally when the
advertisement was issued, the cost of the plot was Rs.12500/ per
square meter in the year 2009, it increased to Rs. 15,000/ per
square meter; and, finally now the claim is for a price of
Rs.30,000/ per square meter. According to the Board, the price
of the land at the rate of Rs. 30,000/ per square meter is fixed on
the basis of the Collector Guidelines issued for the relevant year
201112, and in case of each of the petitioners it is their
contention that this price fixation for the purpose of assessing the
price of land is unsustainable. Applying the formulae laid down in
the Collector Guidelines is not call for. This is an arbitrary and
illegal decision. The petitioners have no objection in paying the
construction cost at the rate of Rs.13000/ per square meter, but
they only object to the recovery of price of the land, on the basis
19
of Collector Guidelines. For the same, the following contentions
have been advanced by them:
(a) The cost price of the land is fixed arbitrarily based on
Collector Guidelines even though there is no increase or
expense incurred by the Board in the matter of
development or upkeep of the land. It is stated that when
the land was purchased from the Veterinary Department,
the Board incurred an expense of Rs. 1972 per square
meter and they have fixed the price of the land at Rs.
12,500/ at the time of issuing the advertisement after
proper costing. Thereafter, they have not incurred any
further expenses in the matter of development or change
of the land, therefore, the arbitrary action for fixing such
an exhorbitant price is unsustainable.
(b) It is their contention that the allotment was made to
them when the registration was accepted and thereafter
the Board is precluded of its power to enhance the cost.
15. The second set of cases pertains to 10 Senior HIG
houses and the third set of cases pertains to 112 houses under
the category of Economically Weaker Section (EWS). Both these
schemes pertain to District of Chhindwara and as the
advertisement and procedure followed in both these cases are
identical, they are being dealt with together.
16. The common advertisement was issued with regard to
both these schemes in the local Newspaper on 20 th of May,
2008. In the advertisement it was stipulated that the willing
applicants should submit their application along with the
requisite fees and it was indicated that the eligible applicants/
allotees would be determined on the basis of the draw of lots
20
through a lottery system. Each of the aspirants submitted their
applications in the prescribed proforma and paid the requisite
fees for registration. In this advertisement the proposed price
for 10 Senior HIG houses was indicated as Rs.15.67 Lacs and the
price for 112 EWS houses was notified as Rs.2.85 Lacs.
Thereafter in the advertisement it was also stipulated that after
draw of lots is over, the eligible applicant will have to deposit
certain amount (10% of the cost price) as indicated in the
advertisement and it was classified as the registration fee.
17. After the advertisement was issued and as large
number of applications were received, it seems that by draw of
lots the eligible applicants/ allotees were determined and after
determination of eligible applicants a communication was made
to them. In the case of 10 HIG houses the communication was
made to them on 11.1.2009, wherein it was indicated that with
regard to the application submitted for registration it is to
inform the applicant that he has been allotted a house in
Chandangaon, District Chhindwara under the Self Financing
Scheme. The proposed cost of the house is Rs.15.67 Lacs and by
the draw of lots through a lottery system, House No. (actual
house number mentioned) has been allotted. It may be noted
that in this communication it is clearly mentioned that a
particular House is allotted. Thereafter a scheme for payment
of installments is indicated and it is stipulated that the first
installment after deducting the registration fee has to be
deposited on or before 28.2.2010 amounting to Rs.3,52,500/.
The second installment on 31.5.2010 amounting to
Rs.3,52,500/ and a third installment on or before 31.8.2010
amount to Rs.3,52,500/ and the final installment before
handing over of the possession also of Rs.3,52,500/.
21
Thereafter in the Note of this communication it was indicated
that the exact cost shall be determined after the construction of
the house is over and in Note 3 it was indicated that the price of
the land is determined based on the standard size of the plot
and there is possibility of increasing the price of land depending
upon the size determined after final construction is made.
Similarly in the case of 112 EWS houses also a communication
was made to all concerned in identical manner and they were
also informed that they have been allotted a house under the
lottery system and the amount has to be paid in accordance to
the installments indicated. Even though in their case the exact
particulars of the house allotted to them was not indicated but
all other factors with regard to payment of installments etc. was
communicated to them as was done in the case of 10 HIG
allottees.
18. It is therefore, clear that even though in all the cases
the appellants contend that there is no allotment and there is
only a registration of the applications for considering the
eligibility of a person but the procedure followed which is
termed as registration indicates that certain allotment was
made, installments were fixed and all the aspirants paid the
amount for the houses in accordance to the installments fixed,
some of them seem to have paid the entire amount in one
installment. That apart, in most of the cases house number etc.
have also been indicated at this stage.
19. The fourth set of cases pertains to 25 HIG Complex
situated in Harising Gaur Nagar, Sagar. In this case as was
done in the case of houses pertaining to Chhindwara and
Bhopal, advertisement was issued, registration was done and
after registration only a sum of Rs.1,50,000/ was paid and
22
thereafter the documents available on record goes to show that
various communications were made and it was indicated that for
the purpose of development of land and with regard to land
acquisition also certain formalities have to be completed and the
distinguishing feature in this case is that except for demanding a
sum of Rs.1,50,000/ as initial payment which was paid by the
petitioners, no other installment was fixed and there are
communications to show that with regard to price of the land,
the development activities in the land and assessment of
compensation to be paid on land acquisition was in progress.
20. The fifth category of case is an isolated case being
Writ Appeal No. 144/2014. This pertains to allotment of Junior
HIG house in District Satna. An advertisement was issued in this
case also and based on the same the petitioner was granted a
registration vide letter dated 22.4.2008. The estimated cost of
the house in this communication was shown as Rs. 11.90 Lacs.
However, vide another letter dated 20.10.2008 - Annexure P/3,
the petitioner was informed that the cost of the house is now
assessed at Rs. 15.03 Lacs and, therefore, she should give an
undertaking in this regard. The petitioner is said to have given
the undertaking in accordance to this communication and
thereafter vide Annexure P/4 dated 16.7.2009, the installments
were fixed for payment of the amount of the amount of Rs.
15.03 Lacs and it is the case of the petitioner that she deposited
the entire amount as per the communication - Annexure P/5
dated 7.4.2012, further amount was also deposited by the
petitioner before 20.4.2012. Even though the house was allotted
to various other persons, it was never allotted to her. On the
contrary by the impugned communication - Annexure P/1 dated
4.5.2013, she was informed that now the cost of the house has
23
gone upto to Rs. 20.39 Lacs and, therefore, she should deposit
the remaining amount of Rs.4.6 Lacs.
21. On going through the procedure followed in each of
the cases as indicated herein above, it is seen that except the
cases pertaining to 25 HIG situated in Hari Singh Gaur Nagar,
Sagar in all other category of cases after the right of each of the
applicants was determined by a lottery system, they were
communicated about their registration and allotment, even
though in the form of a registered allottee, installments were
fixed, options were given either for paying the installment as
per the installments indicated or by paying a lumpsum amount
in accordance to the scheme and availing the benefit of 8%
interest. All the applicants/ allottees adhered to the request
made. Some of them paid the entire amount in one installment
and others paid the installments within the schedule time and it
is when they were paying the installments that the impugned
action was taken for informing them that now the price of the
house to be allotted to them has increased in view of the
assessment of the price of the land as per Collector guide lines
issued in the respective district for the year 20112012.
22. In the backdrop of the aforesaid fact, it was the
finding recorded by the learned Writ Court that allotments have
been made to each of the aspirants and once allotment is made
the price of the land fixed at the time of allotment cannot be
changed. The learned Writ Court has held that except for
recovering any actual expenses incurred for the purpose of
development of the land or for any extra cost incurred for
construction, based on the Collector guide lines only the value
of the land on market price cannot be demanded after the
allotments. To this, the argument of the appellant Board is that
24
the learned Writ Court has misconstrued the registration as
allotment, in fact there is no allotment in accordance with law.
What has been done is only a registration, actual allotment is to
be done after the houses are complete and final installment is
paid and therefore, before this stage the price of the land can be
increased. This is the moot question to be answered in these
appeals?
23. That apart, the learned Writ Court has also gone into
the question of tenability of Collector guide lines with reference
to the provisions of Section 47A of the Indian Stamp Act and the
finding recorded is that the Collector guide line is nothing but a
procedure for assessing the stamp duty to be paid on an
instrument. It is only a prima facie assessment of the cost of the
land or the house, for purpose of paying duty on the instrument
is not value of the land and, therefore, cannot be used for
recovering market value.
24. Shri R.N. Singh, learned Senior Advocate, appearing for
the petitioners/ allottees invited our attention to various documents
and material available on record - namely the advertisement dated
9.11.2007 - Annexure P/8, available at page 177; the Brochure -
Annexure P/4 at page 159 to 163; the transfer of land made by the
Veterinary Department; price incurred and calculation of the cost price
made for the land at Rs. 9000/ per square meter vide Annexure P/7;
the declaration made in the Vidhan Sabha with regard to the land; the
selffinancing scheme; the main features of the Scheme and tried to
argue that the fixation of the price for the land based on the Collector
Guidelines is unsustainable.
25. Learned Senior Advocate took us through the reasoning's
given by the learned Single Judge to say that the price of the land
25
fixed by the Board is nothing but an arbitrary decision and the learned
Writ Court has not committed any error.
26. On the contrary, it was the case of the Board represented
by Shri P.K. Kaurav, Advocate, that what was intimated to the
petitioners vide communication dated 20.12.2007, (in the case of
Revera Township) is only a fact about their registration; learned
counsel pointed out that there was not allotment of the house as
canvassed by the petitioners/ allottees. Applications were called for, a
process of registration was undertaken and when the registration was
done, it was clearly brought to the notice of each of the prospective
purchaser/ allottees that the price fixed at the time of registration is
provisional and tentative, it is not final and is subject to increase based
on the escalation in the cost of construction etc, including the
escalation in the land price. It is his contention that from time to time
the cost price for construction and the price of the land increased and,
therefore, ultimately when the construction was completed and
possession was to be handed over after execution of the requisite
deed, the construction cost and the cost of the land was assessed, this
was done in accordance to the statutory powers of the Board and,
therefore, in demanding the price of the land based on the Collector
Guidelines, it is emphasized by Shri P.K. Kaurav that the Board has not
committed any error.
27. Shri P.K. Kaurav, learned counsel appearing for the
Board, invited out attention to the MP Griha Nirman Mandal
Act, 1972; its amendment Chapter IV of the same; Section 47,
50 and the powers of the Board to fix the cost price; so also MP
Housing Board Accounts Rules, 1991, the provisions of Rule 5.0
to 5.11 thereof; and the costing scheme stipulated in the
statutory rule to say that under Rule 5.7.4, it is clearly
stipulated that the Board is authorized to determine the sale
26
price of its houses, based on the actual determination of amount
incurred and the appreciation in land value can be included for
determination of the sale price. Based on these Rules, Shri
Kaurav tried to emphasize that the petitioners cannot claim
payment of land price contrary to something which was
prevalent at the time when the sale was to be executed after
construction. Learned counsel invited out attention to Circular
dated 24.10.2008, to canvass a contention that it is clearly
indicated in this Circular based on the decision of the Board that
for the purpose of transfer of land, the Collector Guidelines
would be made applicable; and in demanding the same the
Board has not committed any error. Learned counsel took us
through the Circular and scheme in detail to say that it clearly
contemplates that the price fixed at the time of registration is
not the final price; the final pricing is done by the Price Fixation
Committee, which is determined at the time of completion of
construction and it is at that time that the costing of the actual
land price is undertaken. It was the case of the Board and Shri
P.K. Kaurav vehemently argued that the Board has only
demanded for the price as per the terms and conditions agreed
upon and has not committed any error. It is his case that the
Board is well within its right in demanding the price of the land,
based on Collector Guidelines as that is the actual value of the
land, when transfer of the land is to be undertaken after
construction is completed.
28. Shri P. K. Kourav, who appeared for the housing
board along with Shri R. K. Samaiya, Shri Himanshu Mishra,
Shri G. P. Dubey who represented the appellant Housing Board
in various appeals argued that in each of the case final
allotment has not been made. What was communicated to the
27
respondents was that they have been provisionally selected for
allotment and therefore, their name has been registered, they
have paid certain amount towards confirmation of their
registration, allotment is to be made after the final call is given
and before the final call for allotment and payment of the
actual cost price of house and land is not made, the Board has a
right to seek the actual market value of the land as determined
at this stage along with actual construction cost of the house. It
is their case that as per the scheme and the communication
made, each of the respondents had agreed to this proposal of
the Board and now they cannot go back on their acceptance. It
is the case of the appellant in each of the case that the learned
Writ Court misconstrued the registration to be allotment and
applied the law laid down in various cases which pertains to
questions determined by the Supreme Court in the matter of
enhancement of price after the actual allotment is made. It is a
specific case of the Board that in all these cases, no allotment
has been made, only registration has been granted. That apart,
it is their contention that as the land is being transferred to the
allottees on a particular day, the value of land and its market
value as on that day can be claimed by the Board, as this is the
value of the land being transferred to the aspirants and
therefore, the Collector guide lines is applicable.
29. Learned Counsel appearing for the appellants in
support of their contentions placed reliance on the following
judgments : Ramesh Chand Bansal Vs. District Magistrate -
(1999)5 SCC 62; R. Sai Bharthi Vs. J. Jayalalitha - (2004)2
SCC 9; Jawajee Nagnatham v. Revenue Divisional Officer
(1994)4 SCC 595; Land Acquisition Officer Vs. Jasti Rohini -
(1995) 1 SCC 717; UP Jal Nigam Vs. Kalra Properties -
28
(1996) 3 SCC 124; Lal Chand Vs. UOI - (2009) 15 SCC 769;
V. N. Devadoss vs. Chief Revenue Control - (2009)7 SCC
438; Kaliaperumal Vs. Rajagopal - (2009)4 SCC 193; Delhi
Development Authority Vs. Pushpendra Kumar Jain - (1994)
Supp (3) SCC 494; MP Housing Board Vs. Anil Kumar
Khiwani - (2005) 10 SCC 796; Indore Development
Authority Vs. Sadhna Agrawal - (1995) 3 SCC 1; Nisha
Singhal Vs. MP Housing Board, AIR 1996 MP 212; DDA Vs.
Joing Action Committee - (2008) 2 SCC 672; Bareilly
Development Authority Vs. Ajay Pal Singh - (1989) 2 SCC
116; Delhi Development Authority Vs. Pushpendra K. Jain -
(1994) Supp.3 494; S. Srinivasa Murthy Vs. Karnataka
Housing Board - (2012) 8 SCC 424; T.N.Housing Board Vs.
Sea Shore Apartments - (2008)3 SCC 21; Bareilly
Development Authority Vs. Vrida Gujarati - (2004)4 SCC
606; Chief Administrator vs. Shabnam Virk (2006)4 SCC
74 ; BSNL vs. BPL Mobile - (2008)13 SCC 597; Central
Inland Water Transport Corporate Limited Vs. Brojo Nath -
(1986) 3 SCC 156; Tamil Nadu Housing Board Vs. Service
Society - (2011)11 SCC 13; Premji Bhai Parmar vs. DDA -
(1980) 2 SCC 129; Bareilly Development Authority Vs. Ajai
Pal Singh - (1989)2 SCC 116; Naseem Bano Vs. State of U.P.
AIR 1993 SC 2592; State of Punjab Vs. Dhanjit Singh
Sandhu - Civil Appeal No. 56985699/09 and State of UP Vs.
Chaudhari Ranbeer Singh - (2008)5 SCC 550.
30. Shri P. K. Kourav took us through each and every
judgment as indicated herein above and submitted that the
learned Writ Court has relied upon these judgments and he tried
to distinguish each and every case by contending that the
application of the case and the principles laid down therein, in
29
the facts and circumstances of the present dispute is wholly
unsustainable. He refers to the scheme for allotment of house
under the Self Financing Scheme, the Rules of 1994 and argued
that all these provisions permit the Board to fix the price of the
land at the time when the final allotment is made after the
house is contructed and as the respondents in each of the cases
has agreed to this scheme, they are now estopped from going
back on the same. In the case of 30 houses pertaining to Revera
Township, Bhopal, it was specifically emphasized by him that
when communication was made for increase of the price, the
applicants/ allottees give their consent for payment of the cost
of the land as per Collector guide lines and that they are now
estopped to wriggle out from the same. He has given a written
note, in support of his contention.
31. Shri R. N. Singh, learned Senior Counsel who has
represented most of the respondents, Shri Jaideep Sirpurkar,
learned counsel who appears for the respondents in Chhindwara
case and Shri Hemant Shrivastava and Shri Vijay Shukla,
learned counsel appearing for the respondents submitted that
what is termed as a registration by the Board is in fact a
allotment and once the allotment is made, the law does not
permit the Board to increase the price of the land. That apart, it
was emphasized by them that in each of the case, they have no
objection in paying the actual cost incurred by the Board due to
increase in the cost of the construction or any expenses incurred
for development of the land etc. but they say that merely
because the Collector guide lines has come into force, without
any extra cost being incurred for the purpose of development of
land, demanding the land price as per Collector guide lines is
not feasible as it is nothing but undue enrichment by a Statutory
30
Board created for public welfare. They submit that under the
Self Financing Scheme, this is not permissible and further
contending that the arbitrary decision has been taken by the
Board in fixing the price of land as per Collector guide lines,
they sought for interference. It was submitted by taking us
through the judgment of the learned Single Judge in detail that
the learned Writ Court has dealt with each aspect of the matter
in accordance to law and therefore, no indulgence be made into
the matter. Learned counsel for the respondents also relied
upon the same judgments as are mentioned in para 28 above in
support of their contention.
32. We have considered the rival contentions and we find
that the moot questions which warrants consideration in these
appeals are : (a) As to whether in fact and in law in each of
the cases allotment of houses was made or the procedure
followed as contended by the Board is only a process of
registration and not allotment ? (b) Whether the Board is
entitled to claim the price of the land as per Collector guide
lines without incurring any extra expenditure on its
development or otherwise ? and (c) Whether under the Self
Financing Scheme the market value of the land can be
determined in the manner done by the Board which has a result
of there being total uncertainity in the price of the land which
fluctuates from time to time?
33. We have considered the contentions advanced by
learned counsel for the parties at length. All the cases before us
are cases pertaining to allotment of residential accommodation
under the Self Financing Scheme. The scheme has been filed
by the parties and already indicated herein above. It is
Annexure P/4 at page 159 of the paper book.
31
34. The concept of Self Financing Scheme and its salient
features have been laid down by the Supreme Court in the case
of Anil Kumar Khiwani (supra). In the aforesaid case it has
been held that under the Self Financing Scheme cost plays an
important role. The various units of the building scheme are
self financed. The buyer of the unit has to fund the cost of
construction. Under such a scheme the buyer is not entitled to
buy a unit at a price which is less than the cost of construction.
It is held by the Supreme Court that under the Self Financing
Scheme pricing is generally based on the cost of construction
unlike outright sale made of a house after the construction is
complete, where pricing is market related. That being so, the
Supreme Court itself has held that in a Self Financing Scheme a
cost is determined on the basis of cost of construction and the
price is not market related as is generally the case of transfer in
other housing schemes. The only restriction on a buyer in a Self
Financing Scheme is that he does not have a right to purchase
any unit at a price lower than the actual construction price.
Another feature of the Self Financing Scheme is that even if
there is a failure on the part of one contributor to pay the cost,
this cost difference is distributed amongst the other stake
holders. If we go through the aforesaid judgment and Self
Financing Scheme as laid down by the Board, it is clear that the
Board may be entitled to recover the entire actual cost spent by
them in making the purchase of the land but by introducing a
concept of market valuation or market price, they are not
entitled to enhance the cost and claim escalated price without
there being any actual escalation in the price paid by the Board
or expenses in the matter of construction or purchase of land or
its development. It is this aspect of the matter which has been
32
taken note of by the learned Single Judge while dwelling to
consider the question involved in the matter. In para 32 of the
judgment rendered by the learned Single Judge, he has found
that the Board has to establish that they had incurred extra cost
for the land and therefore, they are charging market value.
That being so, we are of the considered view that once it is an
established position that the transfer of the property in the
present case and the entire scheme was based on a Self
Financing Scheme, recovering market value for the land
without there being any actual expenses incurred by the Board
was not correct.
35. The board is a creation of the statute, it is an organ of
a State and primarily established for providing housing facility
to the citizens of the State on terms and conditions as are
financially viable and within the reach of the common man. The
Board is not a commercial business venture of the State
Government like other builders or estate agent and is not
expected to be a profit earning venture. It is only required to
get such profit which is reasonable and which is required for its
functioning and adequate enough for its maintenence. The
amount required for carrying out the activities of the Board are
calculated while implementing a particular scheme or project
and it is never the intention of the legislature to permit the
Board to engage in commercial activities which is detrimental to
public interest. The decision of the Board has to be reasonable
and in public interest. If the act of the Board in the present case
in the matter of fixing the price of land is evaluated, it would be
seen that this is not in confirmity with the aims and objects of
the Board and therefore, we have to term it as an arbitrary and
illegal decision, which is unsustainable. The increase in price of
33
land is exorbitant and is not justified. The only reason that
came forth at the time of hearing was that the Board is facing
financial crisis and loss and is trying to make it up, due to
which the impugned actions seems to have been taken.
Mismanagement of Board which resulted in financial crisis,
cannot be a ground for acting in a manner so as to cause undue
harassment and financial burden the consumer and saddle them
with additional financial liability which is not warranted in the
given set of circumstances. This is also a reason which compels
us to hold that the action of the Board in applying the Collector
guide lines in the present set of case is not proper.
36. The next question which warrants consideration is as
to whether the allotment in question which is claimed to be only
a registration by the appellant Board is in fact a allotment and
therefore, once the allotment is made the Board is debarred
from raising the construction cost or claiming enhanced price of
the land.
37. From the judgment rendered by the Supreme Court in
various cases which were read during the course of hearing and
on a perusal of the order passed by the learned Writ Court, we
find that from para 33 onwards the learned Writ Court has gone
into the question and has held that once the allotment is made,
the price cannot be increased and for holding so, the principles
laid down in various cases including the case of Tamil Nadu
Housing Corporation (supra) and Delhi Development
Authority (supra) case has been relied upon. Learned counsel
for the appellant Shri P. K. Kourav also admitted this position,
but he argue that in the present case, the learned Writ Court has
misconstrued the registration granted to be an allotment which
according to him is a perverse finding.
34
38. If the Scheme for allotment as contained in Annexure R/4
is considered, it would indicate that in the Scheme a provision is there
for issuance of advertisement; calling for applications; drawing of lots
and fixing the allottees; registering their names; simultaneously
getting them to pay 10% of the cost price; and, thereafter fixing the
installments for payment of the remaining amount; the amount to be
fixed in each installments is fixed; thereafter the allottee is given an
option either to give the entire amount in one installment in which
case he is granted a benefit of 8% interest. There is nothing in the
Scheme which goes to show that at the time of registration and when
the entire schedule for payment of installment and the cost is
determined, there is any other procedure for allotment. The only
requirement thereafter is final possession and execution of the
document. It is, therefore, clear that neither in the Scheme - Annexure
P/4 nor in the actual procedure followed by the Board in each of the
case, is there anything to be done after the draw of lottery and
registration is completed, which can be termed as a process for
allotment of the house to a prospective allottee. Infact the process of
registration is a process of allotment itself and in the procedure
contemplated, it also provides for entering into an agreement at that
point of time, but there is no agreement executed in any of the cases
in hand.
39. The contention of Shri P.K. Kaurav, learned counsel for the
appellants, that the process followed initially in each of the case is
nothing but a registration and is not an allotment cannot be accepted
by us. The procedure followed even though termed as registration by
the Board is a process of allotment and in holding the same to be
allotment the learned writ Court has not committed any error.
40. It is clear from the scheme that for allotment of
houses under the Self Financing Scheme, the appellant Board
35
issues an advertisement, in the advertisement a fees is fixed
which is to be deposited along with the application, the price of
the house is indicated and the interested person is required to
deposit 10% of the cost price at the time of registration. If the
applications received are equal to the number of house available
or less, allotment is made to eligible candidate and if the
number is more than the available houses, then the prospective
allottee is determined by draw of lot through a lottery system.
After the lottery system is followed and the allottee is finalized,
even though the communication (as available on record)
information is given to the registered allottee, but along with
this communication he is given a schedule for payment of
installments and installments have been collected as per this
schedule and in some cases an option for one time deposit on
payment of interest at the rate of 8% is granted. Thereafter,
when the construction is over only the remaining price is
recovered and the instrument of transfer registered. Once the
draw of lottery takes place and when the schedule for payment
is indicated, it is not known as to what further process is
required for issuing any allotment order. Even though the
appellant Board terms this procedure to be only registration of
the prospective allottees but in fact and in law we have no
hesitation in holding that this procedure is nothing but a
procedure for allotment of the house, because once the allottee
is determined, he is communicated the installments to be paid,
the period and schedule for installment is also given. An
option to deposit the entire amount in one go and thereafter, if
the construction cost and after the construction, the difference
in cost is worked out and after recovery of the same, the
transfer is effected. That being so, the learned Writ Court has
36
not committed any error in holding that in all of these cases
allotment has been done and once the allotment has been done,
the Board is denuded of its power to seek enhanced cost of land
based on Collector guide lines. Cost of the land was determined
by the Board based on the various factors and other aspects at
the time of allotment/ registration itself and thereafter the
Board cannot recover any cost of land on the ground that at the
time of handing over the possession and registration of
instrument, the land price has increased due to coming into
force of new Collector guide lines. This action of the Board
was clearly unsustainable and therefore, the learned Writ Court
has not committed any error in holding that once the allotment
has been done, no enhancement or recovery is permissible. This
is in accordance to the law laid down in various cases and we
see no reason to take a different view.
41. Shri P.K. Kaurav, learned counsel, while canvassing
his contention in detail had referred to various documents and
observations of the Supreme Court in the judgments relied upon
to say that the Board is entitled to fix the price of the land in
accordance to the Collector Guidelines and the value of the land
transferred is nothing but the one indicated by the Collector in
the guidelines.
42. However, the learned writ Court has gone into all these
aspects in detail and has discussed each and every judgment and its
implication. That apart, the Circular dated 24.10.2008; the statutory
Rules and the Provisions of the Act of 1992 have been meticulously
considered by the learned Single Judge for arriving at the conclusions.
We have gone through each and every aspect of the matter as has
been discussed by the learned Single Judge and we find that the
learned Judge has given due consideration to each and every aspect
37
of the matter and it is not necessary for us now to go into various
aspects of the matter separately, as we are only affirming the order of
the learned Writ Court. The learned Single Judge has gone in detail
through the statutory provisions, particularly the Act of 1972; the MP
Housing Board Accounts Rules, 1991; the Provisions of Rule 5.0 to
5.11 under Section V; and based on these Rules the final conclusion
drawn by the learned Single Judge in paragraph 28 reads as under:
"28. The Board has tried to justify the linking of
determination of cost price of land with the Collector's
guidelines. These guidelines, evident it is, are for the
purpose of determination of Stamp Duty and keeps on
changing every year. Whether such a volatile flexible and
even changing factor can be the foundation for
determination of the cost price in respect of self financing
scheme. And even if it can be relied whether an
application of it can be at the detriment of the
purchasers/allottees. When in fact as in the present case
where it will be noticed little later that no extra cost has
been incurred on the land from the date it is acquired and
moreso from the date of allotment of Units in favour of
respective purchasers."
43. Thereafter, the learned Writ Court has gone into the
question of Section 47A of the Indian Stamp Act, 1899; the judgments
with regard to the fixation of the market value based on Collector
Guidelines and the Rules framed under the Stamp Act; and, the
conclusions drawn by the learned Single Judge in this regard reads as
under (Paragraph 32):
"32. ..... However, unless established that the
determination of market value is by the expert committee
constituted under 2000 Guideline Rules, by following the
38
procedures laid down therein, the market value
determined by the Collector in the considered opinion of
this Court will not be foolproof determinant for pricing of
the residential accommodations under the self financing
scheme. Even if it is made the basis which the Board has
in the instant case. It will be for the Board to establish
that with every changing market value of land, they had to
incur extra cost for the land with every change from the
date of final allotment. And unless established it will be
beyond its power to add hypothetically the cost price."
44. As far as determining the date of allotment is concerned,
the learned Single Judge in paragraphs 33 and 34 has considered the
issue in the following manner:
" 33. The next question is whether it is the date of
allotment order or the date when an instrument of transfer
is executed should be the date for determining the cost
price of land to be included in the final cost price which a
buyer has to pay under self financing scheme. Can it be
the date when the project is mooted, i.e., when a technical
and administrative sanction is granted, or the date when
the offer is floated vide advertisement, or when the
applications are scrutinized. The answer would be in the
negative because, these stages are the floating stage. A
stage, however, comes after the scrutiny of application
received in pursuance to the tender, when the respective
allotees are determined; i.e., the allotment is finalized.
However, at this stage there may be or may not be any
execution of instrument conveying the title, but still stage
is reached when it is finally determined as to the person
39
who is to be allotted the unit. There is thus accrual of
some right in favour of such allottee. Which in future
culminates into sale/transfer of the property in question
with the execution of instrument of sale or transaction, as
the case may be. At this stage one comes to know that he
is the actual purchaser of the residential house.
34. Whereas, the contention on behalf of petitioners is
that the date on which the allotment order is issued should
be the date for determining the cost price of land, subject
to adding of any extra price incurred in the cost price of
land. The respondent Board, however, has to submit that
since there is no accrual of right in favour of the
prospective buyers, merely on their registration and the
right only accrues when an instrument of transfer is
executed, it is the date of such instrument which is the
determinant date for the cost of land to be included in the
final cost price which in turn is based on he Collector's
guidelines. True it may be that the title in property will
normally pass to purchaser from the date of execution of
saledeed. However, as held in Kaliaperumal v.
Rajagopal and another [(2009) 4 SCC 193] "the true
test is the intention of the parties". It has been held
therein "18. Normally, ownership and title to the
property will pass to the purchaser on registration of the
sale deed with effect from the date of execution of the sale
deed. But this is not an invariable rule, as the true test of
passing of property is the intention of parties. ...." Though
the proposition of law is in the context of different set of
facts. However, the principle can be taken aid of in
respect of the aspect of pricing of a unit/residential house
40
under the self financing scheme. The determinant factor
would be when it is tacitly agreed, if not expressly, that,
the price of land at the time of registration of/or execution
of instrument of conveyance would be included in the
input price for pricing the unit/residential house, it will
the date on which the right to allot the house is
determined. It has been held in Delhi Development
Authority v. Pushpendra Kumar Jain [1994 Supp (3)
SCC 494] that "the right to 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."
45. After so holding, the learned Single Judge has gone into
the MP Housing Board Accounts Rules; selffinancing Scheme; the
distinct features of the Scheme; the law laid down in the case of Anil
Kumar Khiwani (supra); and, in paragraph 40, the conclusion is
drawn in the following manner:
"40. The principle culled out from the above verdict is
that in case of self financing scheme, the purchaser will
have to bear the actual costs of construction which
includes the price which the Housing Board has to incur.
Thus, the price paid by the Board in construction or in
raising the fund becomes the principal factor for pricing of
a housing unit which is likely to be different than the price
of constructed unit sold at market price. Therefore, it has
been observed in Anil Kumar Khiwani (supra) in
paragraph 21 "Our observations herein however should
not be read to mean that the developer in the present case
has an absolute right to increase the cost of flats initially
41
announced as estimated cost. The final cost should be
proportionate to the estimated cost mentioned in the offer
keeping in mind the rate of inflation, escalation of the
prices of inputs, escalation in the prices of the construction
material and labour charges."
46. Thereafter, the learned Single Judge found that the
concept and expression 'market value' is a changing concept; and, in
paragraphs 42 and 43, its implication in the backdrop of selffinancing
Scheme has been considered in the following manner:
"42. Would that mean that in case of self financing
scheme wherein the execution of instrument of
conveyance is deferred, cost incurred on the land at the
initial stage and in absence of cogent material to establish
that the Board subsequently thereafter has incurred any
cost on said input (i.e., land), the market price of land as
determined by Collector, at the time of execution of the
instrument of conveyance can be included in pricing.
43. Since the basic feature of pricing under self financing
scheme is meeting out the cost of input, if no further cost
is shown to have been incurred in the input such as land,
the Board is not justified in adding the market price of the
land at the time of execution of instrument of conveyance.
In case if the Board is allowed to do so, then it is like
permitting the Board to earn profit which would be
contrary to the object for which the Board has been
brought into existence. Unjust enrichment is contrary to
justice, equity and good conscience."
42
47. After so holding, each and every judgment referred to
hereinabove and relied upon by learned counsel for the parties is
considered by the learned Single Judge and it is his conclusion that
unless established that some extra expenditure was incurred by the
Board after the allotment of site and before final pricing, that the
action of the Board is nothing but an arbitrary and unjustified action.
In arriving at the aforesaid conclusion and in holding that the Board is
not entitled to recover the extra amount for the price of land based on
Collector Guidelines, we find that the learned Single Judge has not
committed any error warranting interference.
48. We have reproduced the observations and findings
made by the learned Single Judge in the preceding paragraphs
only to indicate that the learned Single Judge has exercised his
powers in a very reasonable manner, has given cogent reasons
for holding so and, therefore, it is not necessary now for us to
go into the question separately and answer them in a different
manner when we agree with the conclusion arrived at by the
learned Single Judge and the justification given by him for
doing so.
49. In W.A. No. 144/2014 i.e.. the fifth case also, once
the allotment was finalized and the entire amount was paid by
the petitioner as per communication - Annexure P/4 dated
16.7.2009, and when the petitioner also deposited the enhanced
amount demanded vide Annexure P/5 on 7.4.2012, the
impugned order seeking payment of additional sum of Rs. 4.6
Lacs can be justified only if the additional sum now claimed by
the impugned order is the actual cost and expense incurred by
the Board for making construction. If it pertains to only fixing
the price of the land on Collector Guidelines, it is not
permissible.
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50. We may point out that except in the cases pertaining
to Hari Singh Gour Nagar, Sagar, there is allotment and deposit
of installments or registration in one go in all the cases and
therefore, in all the cases, the allotment order having been
issued no increase thereafter is permissible with regard to the
cost of the land.
51. As far as the 25 HIG Duplex houses in Hari Singh
Gaur Nagar, Sagar is concerned, the different process has been
followed in their cases and therefore, we are of the considered
view that the concept of allotment having been made cannot be
applied in these cases. In these cases the question has to be
reconsidered based on the factual scenario as is existing therein
and therefore, these cases are to be remanded back to the
Appellant Board for reconsideration as it cannot be said that in
these cases also final allotments were made because the
communication available do not show so.
52. However, once we hold that the scheme under the
Self Financing Scheme does not permit the appellant Board to
apply a market oriented concept for recovery of land price and
approve the finding of the learned Writ Court. We have to
further say that the decision of the Board in recovering the
market price for the land based on the Collector guide lines is
nothing but an arbitrary decision and it has to be quashed. The
board is only entitled to recover the price of the land and fix it
based on the actual expenses incurred by the Board for purchase
of the land, its development etc. and determine it with reference
to the date when the allotment is made after finalization of the
lottery. This process should be followed even in the case of 25
HIG Duplex houses in Hari Singh Gour Nagar, Sagar and
therefore, for determining this factor we remand these matters
44
(Hari Singh Gour Nagar, Sagar) back to the Board itself. The
cases pertaining to HIG Duplex houses in Hari Singh Gour
Nagar, Sagar are remanded back to the appellant Board with the
following directions :
The appellant Board shall determine the cost of the
land and cost of houses in all these cases based on actual
expenses incurred by the Board for construction and for
development of land, payment of compensation etc. on land
acquisition and thereafter shall recover the value of the land by
determining the cost of the land in accordance to law.
53. In view of the aforesaid findings and reasons given by
us the order passed by the learned Writ Court challenged in
these appeals is upheld and all the appeals except the following
appeals pertaining to 25 HIG Duplex Houses in Harisingh Gour
Nagar, Sagar , are dismissed without any order so as to costs.
54. As far as the following Writ Appeals No.WA
206/2014, W.A. 203/2014 and W.A. No.205/2014 are
concerned they are remanded back to the competent authority
of the Board for proceeding in accordance to the directions
already given by us as indicated herein above.
55. As far as Writ Appeal No. 144/2014 is concerned, it is
directed that the orderdated 4.5.2013 - Annexure P/1 is
quashed; and, the respondent Board shall only recover from the
petitioner therein the actual escalated cost of construction, if
any, after notice to the petitioner. They are restrained from
collecting any amount towards cost of the land assessed on the
basis of Collector Guidelines. If the entire amount of Rs.4.6 Lacs
is the cost of the land assessed on the basis of the Collector
Guidelines, the Board is restrained from collecting the same,
else they are granted liberty to recover only such amount which
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is the actual cost of construction i.e... the escalated cost, and if
the petitioner pays the same, the house be allotted to the
petitioner.
56. The entire process as directed herein above be
concluded within a period of three months from the date of
receipt of certified copy of this order and in such cases where
construction of the houses are complete and allotees have made
the entire payment, the process for handing over possession and
concluding of the requirements for handing over possession be
undertaken and completed within a period of 30 days from the
date of receipt of certified copy of this order.
57. With the aforesaid, all these appeals stands disposed
of.
(Rajendra Menon) (Alok Verma)
Judge Judge
mrs.mishra
46
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
W.A. No.1550/2013 & other 41 connected cases
JUDGMENT
For Consideration:
( RAJENDRA MENON ) JUDGE /07/2014 HON'BLE SHRI ALOK VERMA, J.:
( ALOK VERMA ) JUDGE /07/2014 POST FOR : /07/2014 ( RAJENDRA MENON ) JUDGE