Dr. Sudha Jain vs Madhya Pradesh Housingh & ... on 21 November, 2013

[Cites 29, Cited by 1]

Madhya Pradesh High Court

Dr. Sudha Jain vs Madhya Pradesh Housingh & ... on 21 November, 2013

Bench: Sanjay Yadav

      HIGH COURT OF MADHYA PRADEESH  JABALPUR
                  (Writ Petition No. 5692/2013)
                  Dr. Sudha Jain and 16 others
                           VERSUS
           M.P. HOUSING AND INFRASTRUCTURE 
                DEVELOPMENT AND OTHERS

Counsel for Petitioner              Shri   Hemant   Shrivastava, 
                                    Advocate.

Counsel   for   respondent   State  Shri   R.D.   Jain,   Advocate

of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Aditya Khandekar, Housing and Infrastructure Advocate Development Board (Writ Petition No. 996/2013) Smt. Munni Jain VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Deepak Raghuvanshi, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Sanjeev Mishra, Housing and Infrastructure Advocate Development Board (Writ Petition No. 998/2013) Shri Hukum Chand Jain and others VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Dipak Raghuvanshi, 2 W.P. NO. 5692/2013 & others Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Sanjeev Mishra, Housing and Infrastructure Advocate Development Board (Writ Petition No. 5746/2013) Dr. A.K. Chaurasia and others VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Dipak Raghuvanshi, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Aditya Khandekar, Housing and Infrastructure Advocate Development Board (Writ Petition No. 3170/2013) Nirpat Singh Tekhre VERSUS STATE OF M.P. AND another Counsel for Petitioner Shri A. Mukhipadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board 3 W.P. NO. 5692/2013 & others (Writ Petition No. 3165/2013) Smt. Sheela Patel VERSUS STATE OF M.P. and another Counsel for Petitioner Shri A. Mukhopadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 3164/2013) Smt. Sudha Tekhre VERSUS State of M.P. and another Counsel for Petitioner Shri A. Mukhopadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 439/2013) Ku. Trupti Gupta VERSUS State of M.P. and others Counsel for Petitioner Shri A. Mukhopadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate 4 W.P. NO. 5692/2013 & others General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 432/2013) R.C. Gupta VERSUS State of M.P. and others Counsel for Petitioner Shri A. Mukhopadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 423/2013) Smt. Shiksha Gupta VERSUS State of M.P. and others Counsel for Petitioner Shri A. Mukhopadhyay, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 11716/2013) Sandeep Kumbhare VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS 5 W.P. NO. 5692/2013 & others Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Sanjeev Mishra, Housing and Infrastructure Advocate Development Board (Writ Petition No. 11242/2013) Vimla Shrivastav VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Vivekanand Awasthy, 6 W.P. NO. 5692/2013 & others Housing and Infrastructure Advocate Development Board (Writ Petition No. 11712/2013) Barkha Saryam VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Vivekanand Awasthy, Housing and Infrastructure Advocate Development Board (Writ Petition No. 11714/2013) Nilesh Kumbhare VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS 7 W.P. NO. 5692/2013 & others Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri G.P. Dubey, Advocate Housing and Infrastructure Development Board (Writ Petition No. 5690/2013) B.S.S Parihar and others VERSUS State of M.P and others DEVELOPMENT AND OTHERS Counsel for Petitioner Shri R.N. Singh, Senior Advocate with Shri Vijay Shukla, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Aditya Khandekar, Housing and Infrastructure Advocate Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No.11312/2013) B.R. Raut VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General 10 W.P. NO. 5692/2013 & others Counsel for respondent MP Shri Rakesh Jain, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 11789/2013) Aniruddha Thakre VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 11788/2013) Rameshwar Lokhande VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Rakesh Jain, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 11790/2013) Govind Raut 11 W.P. NO. 5692/2013 & others VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 12595/2013) Smt. Geeta Soni VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Rakesh Jain, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 13104/2013) Chandrabhan Jambolkar VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

12 W.P. NO. 5692/2013 & others

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board HIGH COURT OF MADHYA PRADEESH JABALPUR (Writ Petition No. 13106/2013) Swapnil Jambolkar VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Rakesh Jain, Advocate Housing and Infrastructure Development Board (Writ Petition No. 7147/2013) Shahid Khan and others VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri A.K. Singh, Advocate. Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri M.S. Bhatti, Advocate Housing and Infrastructure Development Board (Writ Petition No. 11717/2013) 13 W.P. NO. 5692/2013 & others Mangala Kalbande VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. 14 W.P. NO. 5692/2013 & others Kaurav, Additional Advocate General Counsel for respondent MP Shri Rakesh Jain, Advocate Housing and Infrastructure Development Board (Writ Petition No. 11314/2013) Smt. Lalita Singh VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 10738/2013) Yogeshwar VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 10718/2013) Shaniram Saryam VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General 16 W.P. NO. 5692/2013 & others Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No.10717/2013) Subhash Bobde VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 10713/2013) Smt. Manisha Jain VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 10714/2013) Prabhakar Raut VERSUS M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT AND OTHERS 17 W.P. NO. 5692/2013 & others Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 10715/2013) Gajanan Kadu VERSUS MP HOUSING & INFRASTRUCTURE DEVELOPMENT & ORS Counsel for Petitioner Shri Jaideep Sirpurkar, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri R.K. Samaiya, Advocate Housing and Infrastructure Development Board (Writ Petition No. 9736/2013) Avinash Sahu and 13 others VERSUS MP HOUSING & INFRASTRUCTURE DEVELOPMENT & ORS Counsel for Petitioner Shri Hemant Shrivastava, Advocate.

Counsel for respondent State Shri R.D. Jain, Advocate of Madhya Pradesh General with Shri P.K. Kaurav, Additional Advocate General Counsel for respondent MP Shri Aditya Khandekar, Housing and Infrastructure Advocate Development Board 18 W.P. NO. 5692/2013 & others PRESENT : HON'BLE SHRI JUSTICE SANJAY YADAV O R D E R ( 21.11.2013) PER SANJAY YADAV, J Though these writ petitions are by different income groups having purchased Nice Duplex/Nice Triplex/Nice Duplex Corner/ Senior Higher Income Groups/Higher Income Group/Middle Income Group and the Economically Weaker Sections under Self Financing Scheme from the Madhya Pradesh Housing and Infrastructure Board (hereafter referred to as Board); however, because of the similarity of the controversy raised in these writ petitions, they were heard analogously and decided by this common order.

2. The issue revolves round the pricing of these residential accommodations.

3. Since the same principle of pricing are applied for these residential houses by the Board, the basic facts are retrieved from Writ Petition No. 5692/2013 - Dr. Sudha Jain and 16 others.

4. Inviting offer through advertisement, drawing of lot, allotment thereof by selecting prospective purchasers, various installments payable by these prospective purchasers on the basis of tentative/provisional price fixed by Board by these 19 W.P. NO. 5692/2013 & others purchasers (In some EWS cases the fact may vary regarding the payment schedule; however, since pricing of residential houses is the core issue, the variation of payment schedule will not have any bearing on the final outcome), non execution of sale deeds are not in dispute. Therefore, these facts are not gone into.

5. It may also be noticed that this is the second round of litigation. In earlier round the writ petitions were disposed of with direction to Commissioner, Housing Board to decide the representation preferred by respective petitioners by a reasoned and cogent order.

6. The representations came to be decided on 8.3.2013 whereby the decision of Board of enhancing the cost price of respective units have been upheld and following decision has been taken:

^^izdj.k esa e.My }kjk ladYi dz-

&4601&25@223@2@2013 esa loZlfEefr ls fu.kZ; fy;k x;k fd %& 1- vH;kosnu Lohdkj ;ksX; ugha gksus ls vekU; fd;k tk;sA 2- Hkou 139 ds vkoafV dks dkj.k crkvks lwpuk i= tkjh fd;k tk;s fd D;ksa u mUgsa fn;s x;s Hkou dk vkf/kiR; fujLr fd;k tkdj vkokl dk vkf/kiR; e.My okil izkIr djsaA 20 W.P. NO. 5692/2013 & others 3- iz'uk/khu 36 vkoklksa dk tks vfUre ewY; fu/kkZfjr fd;k x;k gS] mldh 'ks"k jkf'k lacaf/kr vkoaVh dks fnukad 31 ekpZ 2013 rd tek djus ds fy, vfUre volj fn;k tk;sA 4- e.My dh vksj ls i= dz-&514 fnukad 24-2-2012 ds ek/;e ls 'ks"k jkf'k tek djkus gsrq le;&lhek fnukad 31 ekpZ] 2012 fu/kkZfjr dh xbZ Fkh] ftlesa iqu%i= fnukad 11-6-12 }kjk ,oa fn- 30-6-12 rd o`f) dh xbZ Fkh] pawfd izdj.k 'kklu Lrj ,oa U;k;ky;hu Lrj ij fopkjk/khu jgk gSA cdk;k 'ks"k jkf'k tek djkus gsrq vkoafV;ksa dks vc fnukad 31@3@2013 rd volj iznku fd;k tkosA vr% mDrkuqlkj lapkyd e.My ds }kjk e.My ds izpfyr ifji=] izdj.k ds laca/k esa iwoZ esa dh x;h izfdz;k@dk;Zokgh ,oa eku- mPp U;k;ky; }kjk fn;s x;s funsZ'k vuqlkj dk;Zokgh djrs gq, lacaf/krksa dks cksMZ esa lquokbZ dk volj fn;k tkdj lexz ifjfLFkfr;ksa ds fopkjksijkar ikfjr ladYi dz-&4601@25@223@2@2013 fnukd 12-2-2013 ds vuqlkj loZ lacf/krksa ds vH;kosnuksa dks vafre :i ls vekU; fd;k tkrk gSA loZ lacaf/krksa dks O;fDr'k % lwfpr fd;k tkosA

7. Before getting into the reasons assigned by the Board, * Comparative Statement will set out the costing pattern of the residential accommodation in question. 21 W.P. NO. 5692/2013 & others COMPARATIVE STATEMENT FOR TENTATIVE COST/TENTATIVE REVISED COST/FINAL COST 36 HOUSES AT "RIVIERA TOWNE"BHOPAL 22 W.P. NO. 5692/2013 & others

8. Now for the reasons which find mention in the order dated 8.3.2013 justifying the enhancement. These are:

1- e.My ifji= dz-&21@08 fnukad 24-10-08 esa Li"V izko/kku gS fd ftu izdj.kksa esa vafre ewY; fu/kkZj.k ugha gqvk gS muesa e.My } kjk lEifRr ij fd;s x;s okLrfod O;; ,oa izHkkfjr C;kt rFkk vU;

O;; ds vk/kkj ij x.kuk fd;s x;s ewY; rFkk Hkwfe dh dysDVj xkbZM ykbZu ds vuqlkj dh x;h x.kuk dh rqyuk dh tkdj nkuksa esa tks vf/kd gks] mlds vuqlkj ewY; fu/kkZj.k fd;k tk,A 2- ifji= dz- 21@08 fnukad 24-10-08 dh dafMdk 3 esa mYys[k gS fd ^^,slh lEifRr;ka ftuesa vfUre ewY; fu/kkZj.k fd;k tk pqdk gS vkSj vHkh fodz; ls 'ks"k gS rks ,slh lEifRr;ksa ds Hkh foKkiu iqu% izlkfjr djus ds iwoZ mijksDr fu.kZ; ds vuqlkj gh iqu% ewY;

fu/kkZj.k fd;k tk,A Li"V gS fd dsoy ,slh lEifR;ka ftudk fodz;

fd;k tk pqdk gS mudk nqckjk ewY; fu/kkZj.k ugha gksxk** iz'uk/khu 36 vkokl x`g ,slh lEifRr;ksa ds :i esa Classify ugha gks ldrh ftudk fodz; fd;k tk pqdk gS D;ksafd fodz; dh izfdz;k iw.kZ djus ds fy, fodz; vfHkys[k dk fu"iknu iw.kZ gksuk vko';d gSA ;g vkSj Hkh fd cksMZ dh izpfyr uhfr ds vuqlkj vxj vkoafVrh ewY;

fu/kkZZj.k ls vlarq"V gS rks og mlds }kjk tek dh x;h jkf'k fu/kkZfjr C;kt ds lkFk okfil ysus ds gdnkj gksrk gS A rnksijkUr lacaf/kr lEifRr cksMZ ds }kjk fdlh vU; O;fDr dks fodzhr dh tk ldrh gSA vr% iz'uk/khu 36 vkokl x`gksa dks fodzhr lEifRr dh 23 W.P. NO. 5692/2013 & others Js.kh esa ugha j[kk tk ldrkA vr% bl vk/kkj ij ifji= 21@08 ml ij ykxw ugha gksxk] dk rdZ ekU; ugha gksxkA 3- vH;kosnu ds laca/k esa mi egkf/koDrk ls izkIr vfHker fnukad 3-3-2012 dk voyksdu fd;k ftlesa muds }kjk gkmflax cksMZ ds i= fnukad 22-2-2012 esa mYysf[kr 3 iz'uksa ij fof/kd vfHker fn;k x;k gSA ;g 3 iz'u fuEukuqlkj gS %& 1- D;k fnukad 19-5-2008 ds iwoZ izkjEHk dh xbZ ;kstukvksa ij ewY; fu/kkZj.k ds ogha fl)kar ykxw gksaxs] tks ;kstuk izkjEHk djus ds le; ykxw Fkh\ 2- D;k ewY; fu/kkZj.k esa dysDVj xkbZM ykbZu ls rqyuk djus laca/kh funsZ'k fnukad 30-9-08 ds ckn izkjEHk dh xbZ ;kstukvksa ij ykwx gksaxs\ 3- D;k ftl fnukad dks ;kstuk dh lkoZtfud lwpuk tkjh dh tkdj vkokl cqfdax ds vkosnu vkeaf=r fd; tkrs gSa] dks ;kstuk ds izkjEHk dk fnukad ekuk tkosxk\ mi egkf/koDrk }kjk mDr iz'uksa dk mRrj ldkjkRed fn;k x;k gSA mDr vfHker ij fopkj fd;k x;kA ;g mYys[kuh; gS fd ifji= 7@2008 fnukad 19-5-2008 vkfFkZd :i ls detksj vkSj vuqlwfpr tkfr rFkk tutkfr oxZ dks jkgr nsus ds mn~ns'; ls i;Zos{k.k 'kqYd ;Fkkor~ j[kus ds laca/k esa FkkA buesa Hkwfe dh x.kuk djus ds laca/k esa dksbZ uhfrxr fl)kUr izfrikfnr ugha FkkA ifji= dzekad 1842 fnukad 30-9-2008 ds i`"B 2 ij vfUre ykxr ewY; fu/kkZfjr djrs le; d`f"k Hkwfe dk dysDVj xkbMykbu ls rqyuk 24 W.P. NO. 5692/2013 & others djus dk izko/kku j[kk x;k FkkA ;g funsZ'k lEifRr ds vfUre ykxr ewY; fu/kkZj.k djrs le; izLrko rS;kj fd;s tkus ij ykxw FkkA Li"Vrk ;g funsZ'k mu laifRr;ksa ds fy, gS ftudk vfUre ykxr ewY; fu/kkZfjr ugha gSA e.My ds ifji= dza- 1842 fn- 30-09-08 ,oa ifji= dza- 7@08 fn- 19-5-08 ds laca/k esa e.My ds ladYi dza- 4217&26@205@9@2009 ls ;g Li"Vhdj.k fd;k x;k fd ^^mijksDr ifji=ksa ds izHkko'khy gksus ds fnukad ds iwoZ esa tks ;kstuk,a izkjEHk dh tkdj iath;u foys[k@vuqca/k fu"ikfnr fd;s x;s tk pqds gS mudk ewY; rRle; ykxw izko/kkukasa ds vuqlkj fd;k tk,A** mi egkf/koDrk dh fof/kd jk; ls e.My }kjk iwoZ esa iz'uk/khu lEifRr;ks ds ewY; fu/kkZj.k ds laca/k esa fy;s x;s fu.kZ; ij dksbZ foijhr izHkko ugha iM+rk D;ksafd ,slk fu/kkZj.k oLrqr% ifji= dza- 21@08 fn- 24-10-2008 ds varxZr fd;k x;k gSA ;g ifji= ¼daz- 21@08 fn- 24-10-2008½ dHkh la'kksf/kr ugha gqvk gS rFkk mldk izHkko lEifRr;ksa ds ewY; fu/kkZj.k djus dh izfdz;k ij fujUrj iM+rk jgsxkA 4- e.My ds 219 os lfEeyu esa ikfjr izLrko ds vk/kkj ij tkjh ifji= dza-&15@2011 fnukad 18-12-2011 mu vkoklh; ;kstukvksa ij ykxw gksxk] ftudk iath;u vkxs vkus okys le; esa gksxkA mu ;kstukvksa esa Hkw[k.M ewY; dh x.kuk Hkwfe ds okLrfod O;; jkf'k] fodkl dk;Z dh vuqekfur ykxr jkf'k] vU; nsunkfj;ksa lfgr ewY; esa i;Zos{k.k 'kqYd ,oa vU; O;;@izHkkj vkfn tksM+dj fudkys x;s ewY; dks ewY; fu/kkZj.k okys foRrh; o"kZ esa izpfyr dysDVj xkbZM 25 W.P. NO. 5692/2013 & others ykbZu ls rqyuk dh tk;sxh vkSj tks ewY; vf/kd gks ml ij Hkw[k.M dk ewY; Qzht ¼fLFkj½ gksxkA e.My esa iqjkuh@izpfyr ;kstukvksa ds laca/k esa rFkk fc[kjh vkoklh;@O;olkf;d lEifRr;ksa dk vafre ewY; fu/kkZj.k e.My ds orZeku izpfyr ifji= dz-&1842 fnukad 30-9-08 ,oa 21@08 fnukad 24-10-08 vuqlkj gh fd;s tkus dk izko/kku lapkyd e.My }kjk fd;k x;k gSA vFkkZr~ orZeku esa dysDVj xkbZM ykbZu ls rqyuk fd;s tkus dh] ewY; fu/kkZj.k dh uhfr ykxw gS] tks ifjofrZr ugha gqbZ gSA 5- lacaf/krksa ds vH;kosnuksa ds laca/k esa xfBr lfefr }kjk izLrqr rF;kRed ijh{k.k Vhi ds vuqlkj eku- mPp U;k;ky; }kjk fn;s x;s fu.kZ; esa mYysf[kr U;k; n`"Vkar ds laca/k esa fLFkfr fuEukuqlkj gS %& ¼1½ eku- mPpre U;k;ky; ds fu.kZ; T N Housing Board (supra) ds izdj.k esa ewY; dk vafre fu/kkZj.k gks pqdk FkkA blds laca/k esa ;g ekU; fd;k x;k Fkk fd vFkkfjVh ;k cksMZ dks lkekU;r% ewY; o`f) dk vf/kdkjh gS] ijUrq bls ,d LVsaMMZ lfVZfQdsV ls fl) fd;k tkuk pkfg,A bl gsrq vkoaVh lacaf/kr cksMZ ls lfVZfQdsV izkIr dj ldrk gSA 6- ekuuh; loksZPp U;k;ky; }kjk dukZVd b.MLVªh;y MsOgyiesaV cksMZ ds izdj.k esa ikfjr fu.kZ; esa ;g O;oLFkk nh gS fd e.My dks lEifRr dk vafre ewY; fu/kkZj.k djus dk vifjHkkf"kr vf/kdkj rks gS fdUrq bl vf/kdkj dk mi;ksx ^^fizafliy vkQ js'ukfyVh ,.M fjtuscyusl** ds v/khu gh fd;k tkuk pkfg,A bl vf/kdkj dh 26 W.P. NO. 5692/2013 & others vkM+ esa vkoafV;ksa ij vuko';d O;; dk Hkkj ugha Mkyk tkuk pkfg,A bl izdj.k esa Hkwfe dk ewY; Hkw&vtZu ds eqvkotk esa o`f) ds dkj.k c<+k Fkk] tcfd fopkj/khu 36 fjos;jk Vkmu ;kstuk esa lEifRr dk ewY; esa e.My dh izpfyr uhfr ds dkj.k o`f) gks jgh gSA ekuuh; mPpre U;k;ky; ds mijksDr U;k; n`"Vkar izdj.k esa C;kt nj 14 izfr'kr vuqca/k ds izko/kku ds foijhr vf/kjksfir dh x;h Fkh] tcfd cksMZ ds }kjk fd;s x;s vuqca/k vuqlkj 9 izfr'kr rd gh C;kt izkIr fd;k tk ldrk FkkA bl izdj.k esa yht&de&lsy ,xzhesaV gks pqdk FkkA blh vk/kkj ij ;g vk{ksi fd;k x;k Fkk fd fdlh Hkh izdkj dh o`f) vkoaVu vkns'k ds foijhr gSA izdj.k esa vafre ewY; fu/kkZj.k esa Hkh cgqr foyac gqvk Fkk tks vuqca/k ds vuqlkj 03 o"kZ dh lhek esa fd;k tkuk FkkA blds foijhr iz'uk/khu fjos;jk Vkmu ;kstuk esa ,slh dksbZ ifjfLFkfr;ka ugha gS vkSj u gh vkoafV;ksa ds lkFk fdlh izdkj dk dksbZ vuqca/k fu"ikfnr fd;k x;k gSA ;g izdj.k eq[;r% vkS|ksfxd {ks= fodkl cksMZ ds fy, Fkk] ftldh ifjfLFkfr vkoklh; ;kstuk ls cgqr fHkUu gksrh gSA blds yht vuqca/k esa ;g izko/kku Fkk fd " As soon as it may be convenient the lessor will fix the price of the demised premises at which it will be sold to the lessee and communicate it to the lessee and the decision of the lessor in this regard will be final and binding on the lessee." blds foijhr bl izdj.k esa 27 W.P. NO. 5692/2013 & others 13 o"kZ ds yacs le; mijkar vafre ewY; fu/kkZj.k fd;k x;k Fkk] tcfd fjos;jk ;kstuk ds laca/k esa ,slh dksbZ fLFkfr ugha gSA fjos;jk ds izdj.k esa izkjafHkd ewY; fu/kkZj.k ,oa mlds mijkar tkjh i=@funsZ'k esa vkoafV;ksa dks e.My dh vksj ls Li"V fd;k tkrk jgk gS fd vafre ewY; fu/kkZj.k ckn esa fd;k tk;sxkA bl izdkj mDr U;k; n`"Vakrksa ds izdj.kksa esa fufgr rF; fjos;jk Vkmuf'ki ds izdj.k esa fHkUu gS] vr% mUgas Loeso bl izdj.k esa ykxw djuk U;k;ksfpr izrhr ugha gksrkA 7- lacf/kr vkoaVh orZeku esa dsoy iathdrkZ@vkoaVh gSaA mUgsa dsoy lEifRr vkoafVr dh x;h gS rFkk lEifRr dk fodz; ugha fd;k x;k gSA lacaf/krksa dks tkjh funsZf'kdk] iath;u lwpuk i=] fd'rksa ds lwpuk&i=] ewY; o`f) ds laca/k esa vkoafV;ksa dks tkjh fofHkUu i=ksa esa Li"V fd;k x;k fd ^^pwafd vkidk iath;u Lohdkj fd;k x;k gS vr% fu/kkZfjr vof/k esa c<+s gq, vuqekfur ewY; ij Hkou dz; djus dh lgefr fu/kkZfjr le; esa izkIr gksus ij gh vkidk iath;u tkjh j[kk tk;sxkA** bl ij vkoafV;ksa }kjk fyf[kr esa lgefr Hkh iznku dh x;h FkhA blds vfrfjDr ;g Hkh iwoZ ls Li"V Fkk fd vafre ewY; fu/kkZj.k mijkar Hkou dk ewY; ns; gksxk ,oa tek jkf'k ds varj dh jkf'k rFkk vU; izHkkjksa dh tkudkjh vafre vkoaVu vkns'k esa nh tk;sxhA 8- vH;kosnudrkZvksa }kjk eq[; :i ls Qsl&1 ds 132 vkoklx`gksa ds yht jsaV ds tks izko/ku gS] mUgs ykxw djus dk vuqjks/k fd;k x;k gSA Qsl&1 esa fufeZr 132 fgrxzkfg;ksa ls bl vk'k; dk 'kiFki= 28 W.P. NO. 5692/2013 & others fy;k x;k Fkk fd vxj 'kklu }kjk yhtjsaV fy;k tk,xk rks ogh jkf'k muls olwy dh tk;sxhA ;gh uhfr vH;kosnudrkZvksa ij Hkh ykxw gksxhA lfoZl VSDl ds laca/k esa e.My ds izpfyr ifji= dz- 3885@10 fnukad 4-10-2010 ds vuqlkj fujUrj jgsxhA 9- vfxze vkf/kiR; ds laca/k esa eku- mPp U;k;ky; }kjk fu.kZ; fnukad 24-9-202 ,oa 28-9-2012 esa ;g funsZ'k fn;s x;s gS fd %& It is further observed that the respondent authorities may also consider the request of the petitioners to hand over possession of the houses, as an interim measure, as has been done in the case of Dr. Mrs. Krishna Yadav, in case so advised and is permissible and in case such an application is filed by the petitioners subject to the final decision in the mater.

bl laca/k esa e.My ds izpfyr i= dz-&1035 fnukad 15-3-05 ,oa tkjh funsZ'k esa Li"V izko/kku gS fd laifRr dk vkf/kiR; fodz; foys[k ds mijkar gh fn;k tk;sxkA Hkou dzekad&139 ds vkoaVh dks ekuoh; vk/kkj ij rFkk e.My ds fu.kZ; dks ekU; djus dh 'krZ ij vkf/kiR; fn;k x;k FkkA e.My ds izpfyr ifji= vuqlkj laifRr dk vfxze vkf/kiR; fn;s tkus dk dksbZ vk/kkj izrhr ugha gksrk gSA vfxze vkf/kiR; e.My ds i= dz-&382@101@bZ,e fnukad 29-1-05 rFkk i= dz-&1035@l-iz-@eaMy@04 Hkksiky fnukad 29 W.P. NO. 5692/2013 & others 15-3-05 ds }kjk tkjh funsZ'kksa ds foijhr gksxhA vfxze vkf/kiR; nsus ls e.My dks izkIr gksus okyh jkf'k esa foyEc gksxk] blls C;kt dh {kfr gksxh ,oa e.My dks lEifRr dk vf/kiR; okil izkIr djus esa Hkh vuko';d U;k;ky;hu fookn dh laHkkouk c<+sxhA vr% fcuk fodz; foys[k ds lEifRr;ksa dks vfxze vkf/kiR; fn;s tkus dk vuqrks"k e.My ds izpfyr izko/kkukas ds foijhr gS rFkk Hkfo"; esa blls mRiUu gksus okyh ifjfLFkfr;kWa e.My ds fgrksa ds foijhr gSA vr% vfxze vkf/kiR; laca/kh ekax ekU; ugha dh tk ldrh A 10- e.My dk ifji= dzekad 21@08 fnukad 24-10-2008 Lo;a esa Li"V gSA blds vuqlkj gh fjosjk Vkmu ds 36 vkoafV;ksa dks vkoafVr lEifRr ds laca/k esa vfUre ewY; fu/kkZj.k dh dk;Zokgh dh xbZ gSA e.My dh fofHkUu ;kstukvksa esa blh uhfr ds vuq:i vfUre ewY; fu/kkZj.k fd;k tkdj lEifRr;ksa dk fodz;&foys[k fd;k tk jgk gSA ifji= dza- 21@08 ds foijhr fopkj dh fLFkfr esa lEiw.kZ e/;izns'k esa blls dbZ ;kstuk;s izHkkfor gksxh rFkk jkf'k okilh ,oa U;k;ky;hu okn dh fLFkfr fufeZr gksxh ftlls e.My dk foRrh; Hkkj c<+sxkA vr% e.My ifji= ds foijhr dk;Zokgh e.My fgr esa ugha gksxhA e.My lEifRr;ksa ds vafre fu/kkZj.k gsrq ifji= dza- 21@08 fnukad 24-10-08 e.My }kjk tkjh fd;k x;k gSA ifji= ds iSjk dza- &3 esa ;g Li"V mYys[k gS fd ftu izdj.kksa esa vafre ewY; fu/kkZfj.k ugha gqvk gS muesa mijksDr fu.kZ; ds vuq:i gh e.My ds }kjk lEifRr ij fd, x;s okLrfod rFkk izHkkfjr C;kt ,oa vU; ds 30 W.P. NO. 5692/2013 & others vk/kkj ij x.kuk fd, ewY; rFkk dysDVj xkbZM ykbZu ls x.kuk fd, ewY; dh rqyuk dh tkos rFkk nksuksa esa ls tks vf/kd gks mlh ds vuqlkj ewY; fu/kkZfj.k fd;k tkosA fjos;jk ;kstuk esa iath;u o"kZ 2007&08 esa gqvk ,oa Hkouksa dk vafre ewY; fu/kkZj.k o"kZ 2011 esa izLrkfor gqvk ftl ij vkoafV;ksa }kjk vkifRr dj jkf'k tek ugha dhA vFkkZr~ ;kstuk esa vizR;kf'kr ;k vR;f/kd foyac e.My }kjk ugha gqvkA o"kZ 2011 esa Hkou rS;kj gS ,oa 2012&13 dh dysDVj xkbZM ykbZu izpyu esa gSA o"kZ 2013&14 dh dysDVj xkbZM ykbZu izLrkfor gSA bl fLFkfr esa ik;k tkrk gS fd Hkouksa dh dherksa esa vizR;kf'kr o`f) gsrq e.My ftEesnkj ugha gks ldrk gSA Hkwfe ds ewY; esa o`f) dk ykHk eq[;r% Hkwfe Lokfe dks izkIr gksxkA lEifRr dk orZeku dysDVj xkbZM ykbZu dh rqyuk ds vk/kkj ij vafre ewY; fu/kkZj.k dk fu.kZ; U;k;laxr vkSj izdV ,oa miyC/k vkadM+ksa ¼dysDVj xkbZM ykbZu½ ds vk/kkj ij laxf.kr okLrfod vfHko`f) ij vk/kkfjr gSaA blfy, ;g ugha dgk tk ldrk fd Hkouksa esa gqbZ ewY; o`f) okLrfod ewY; o`f) ds fl)kar ij vk/kkfjr ugha gSA cfYd orZeku ewY; o`f) okLrfod Hkwfe ds ewY; esa o`f) ds lqLFkkfir fl)kar ij vk/kkfjr gS ,oa ftldk okLrfod ykHk fodz; foys[k ds le; Hkw&Lokfe izkIr djsxkA ifji= fnukad 24-10-08 e.My ij ca/kudkjh gksus ds lkFk&lkFk e.My ds fgrksa dks lqjf{kr j[krk gSA fjos;jk Vkmu ds 36 vkoafV;ksa dks Hkouksa dk fodz; ugha gqvkA ,slh fLFkfr esa Hkouksa dk ewY; 31 W.P. NO. 5692/2013 & others

fu/kkZj.k ifji= dz-&21@08 ds vuqlkj vFkkZr dysDVj xkbZM ykbZu ls rqyuk ds vk/kkj ij fd;k tkuk U;k; laxr gSA bl vk/kkj ij gh vafre ewY; fu/kkZj.k fd, tkus laca/kh izko/kku fd;k x;k gSA

9. The rationality of this cost price system of land is being questioned as also the stage at which it should be made applicable. It is made clear at this stage that the petitioners have confined the challenge only to linking of cost price of land with Collector's guidelines which keeps changing every year.

10. Shri R.N. Singh, learned Senior Counsel with Shri Vijay Shukla, Advocate, Shri Hemant Shrivastava, Advocate, Shri A.K. Singh, Advocate, Shri A. Mukhipadhyay, Advocate, Shri Jaideep Sirpurkar, Advocate and Shri Dipak Raghuvanshi, Advocate for petitioners and Shri R.D. Jain, learned Advocate General with Shri P.K. Kaurav, learned Additional Advocate General, Shri R.K. Samaiya, Advocate, Shri G.P. Dubey, Shri Sanjiv Mishra, Shri Vivekanand Awasthy, Advocate, Shri Rakesh Jain, Advocate, Shri M.S. Bhatti, Advocate and Shri Aditya Khandekar, Advocate for the respondents were heard at length.

11. Four elements which cumulatively determine the pricing of respective residential units under the self financing scheme are the (i) cost of land, (ii) construction cost, (iii) total advertisement cost and (iv) surcharge and contingency charge.

12. The cost of land, besides actual cost incurred would include the development expenditure, probable expenses, 32 W.P. NO. 5692/2013 & others better location, capital interest for loan for purchasing the land, enhanced lease rent if any, registration charges of land. Similarly the construction cost would include actual cost incurred in construction, the supervision charges , charges on building permission, contingencies (certain %). The total advertisement costs and surcharging and contingency charges are the certain amount which are incurred to make project sale able before it is allotted to the prospective purchasers under self financing scheme.

13. A careful reading of the order dated 8.3.2013 would reveal that the major role played in the pricing of unit which has led to the hike of cost is the price of land which in turn is linked with the Collector's guideline, i.e., the fixation of price of land by Collector for the purpose of stamp duty has been made the basis for ascertaining the cost price of land. Thereby, the element of variability has been added to the cost price of land, i.e., even when no extra price are being paid for the land in question, yet by linking the pricing with Collector's guideline, the price keeps on changing with the changes in guideline set by the Collector. The consequence is that from the date of allotment and till the date the saledeed is executed the price of land keeps on changing even if no extra expenses on cost of land is incurred. Thus an uncertainty to the cost price of land is added.

33 W.P. NO. 5692/2013 & others

14. As noticed from the order dated 8.3.2013, the Commissioner, Board has relied on the circular 21/2008 dated 24.10.2008 while holding that fixation of price of land as per Collector's guideline prevalent at the time of execution of sale deed and handing over the possession is just and proper.

15. The circular dated 24/10/2008 which has been relied on stipulates:

1- e.My ds ifji= dza- 7@04 fn- 28-07-04 esa fu.kZ; fy;k x;k Fkk fd tgka dgh e.My dh Hkwfe dks dysDVj ykbZM ykbZu ls de ewY; ij fodz; fd;k tkuk gS ogka ,slh dk;Zokgh e.My ds vuqeksnu ds mijkUr gh fd;k tk,A bl lanHkZ esa e.My ifji= da- 16@04 fn- 19-04-2000 dks tkjh fd;k x;k ftlesa fn- 28-07-2004 ds ifji= dks dsoy O;kolkf;d lEifRr ij gh ykxw djus dk fu.kZ; lwfpr fd;k x;k FkkA 2- orZeku esa O;kolkf;d lEifRr esa dysDVj ykbZM ykbZu ls rqyuk dh tkrh gS ijUrq vkoklh; lEifRr esa i`Fkd uhfr viukbZ tkrh gSA bl vleUtl dh fLFkfr dks lekIr djus ds fy, e.My ds 200osa lfEeyu ds ladYi daz- 4089&07@200@9@2008 ds }kjk fu.kZ; fy;k x;k gS fd O;kolkf;d lEifRr ,oa vkoklh; lEifRr ¼leLr vfofdzr ,oa fc[kjh lEifRr lfgr½ ds ewY; fu/kkZj.k esa ,d:irk ykus ,oa e.My dh lEifRr dks ,d gh uhfr ls ewY; fu/kkZj.k fd;k tkosA blds fy, ;fn dysDVj xkbZM ykbZu }kjk fu/kkZfjr nj ls de ewY; ij lEifRr fn;s tkus@fodz; fd;s tkus dk izLrko gS rks ,slh dk;Zokgh e.My ds vuqeksnu mijkUr gh dh tk,A 3- vr% ftu izdj.kksa esa vfUre ewY; fu/kkZj.k ugha gqvk gS muesa mijksDr fu.kZ; ds vuqlkj gh e.My ds }kjk lEifRr ij fd;s okLrfod O;; ,oa izHkkfjr C;kt rFkk vU; O;; ds vk/kkj ij x.kuk fd;s ewY; rFkk dysDVj ykbZM ykbZu ls x.kuk fd;s ewY; dh rqyuk 34 W.P. NO. 5692/2013 & others dh tkos rFkk nksuksa esa tks vf/kd gks mlh ds vuqlkj ewY; fu/kkZj.k fd;k tkosaA vFkkZr e.My ds vuqeksnu ds fcuk dysDVj ykbZM ykbZu ls de ewY; ij ewY; fu/kkZj.k u fd;k tkosaA ,slh lEifRr;ka ftuesa vfUre ewY; fu/kkZj.k fd;k tk pqdk gS vkSj vHkh fodz; ds vuqlkj gh iqu% ewY; fu/kkZj.k fd;k tk,A Li"V gS fd dsoy ,slh lEifRr;ka ftudk fodz; fd;k tk pqdk gS mudk nqckjk ewY; fu/kkZj.k ugha gksxk ijUrq ,slh lEifRr;ka tks vHkh vfofdzr gS muds fodz; gsrq foKkiu nsus ds iwoZ mijksDr fu.kZ; vuqlkj gh ewY; fu/kkZj.k fd;k tk,A mijksDr funsZ'k rRdky izHkko'khy gksaxsA

16. Respondent Housing Board owes its existence to the Madhya Pradesh Griha Nirman Mandal, 1972, an Act to provide for the incorporating and regulation of Housing Board in the State of Madhya Pradesh for the purpose of taking measures to deal with and satisfying the need of housing accommodation and to undertake development and for matter connected therewith. The Act of 1972 has been substituted by M.P Act No. 4 of 2011w.e.f 4.1.2011 widening the field of operation of the Housing Board to infrastructure development. Section 3 provides for establishment of Madhya Pradesh Housing and Infrastructure Development Board with power to acquire, hold and dispose of property and to contract. Chapter IV deals with conduct of Business of Board and its committees. Chapter V deals with powers of Board, Chairman and Housing Commissioner to Incur Expenditure on Housing And Infrastructure Development Schemes and to Enter into Contracts. Chapter VI deals with Housing Schemes and 35 W.P. NO. 5692/2013 & others Infrastructure Development Schemes. Section 31 stipulates that subject to the provisions of the Act and subject to control of the State Government, the Board may incur expenditure and undertake works in any area to which the Act applies for the framing and execution of such Housing Schemes and/or Infrastructure Development Scheme as it may consider necessary from time to time or as may be entrusted to it by the State Government. Section 33 makes a provision regarding matter/matters to be provided in the Housing Scheme. Section 34 besides empowering the Board to frame a land development Scheme, empowers the Board to lease out or sell, by outright sale or on hire purchase basis, the building sites in the scheme area. Section 47 stipulates that the Board may include in the cost of any housing or improvement scheme land development scheme or other development scheme framed by it or any other work undertaken by it, supervision and centage charges at such rates as may be fixed by it. The rate so fixed shall not be more than twenty three per cent of the scheme of work.

Section 50 stipulates:

50. Power to dispose of land. (I) Subject to any rules made by the State Government under this Act, the Board may retain or may lease, sell, exchange or otherwise dispose of any land, building or other property vesting in it and situate in the area comprised in any housing scheme or in any adjoining area.

(2) Whenever the Board decides to lease or sell any land acquired by it under this Act from any person, it 36 W.P. NO. 5692/2013 & others

(a) may give notice by advertisement in one of the leading local newspaper in the State; and

(b) shall offer to the said person, or his heirs, executors or administrators, a prior right to take on lease or to purchase such land for an amount or at a rate to be .fixed by the Board, if the Board considers that such an offer can be made without detriment to the carrying out of the purposes of this Act.

(3) If in any case two or more persons claim to have the prior right referred to in clause (b) of subsection (2) preference shall be given to the person who agrees to pay the highest amount or rate for the land, not being less than the amount or rate fixed by the Board under that clause.

17. Apparent it is from clause (b) of subsection 50 that the offer to sell any land, building or any apartment therein, or other property vesting in it is for an amount or at a rate fixed by the Board with the limitations stipulated under Section 47.

18. Though no Rules/Regulation/Byelaw framed under Section 50 has been brought to the notice laying down the parameters for fixing the amount or rate at which the property is to be sold. However, it is gathered from material on record that the Board from time to time has been fixing the parameters for pricing of its property through its meetings by way of resolutions.

19. That, various decisions have been taken by the Board from time to time in respect of pricing of the units. That, a cost evaluation committee came to be constituted by the Board vide decision dated 14.8.2008 in its 199th meeting for rational price 37 W.P. NO. 5692/2013 & others fixation of residential houses (excluding commercial and scattered residential houses).

20. Guidelines were laid down under circular dated 30.9.2008 for the cost evaluation committee to take into consideration the parameters set therein while ascertaining the offset price/final cost price/expenditure outlay. These were:

(i) vfodzhr Hkwfe ds dz; ewY; esa iwWathxr C;kt dh jkf'k tksM+dj tks ewY; vkrk gS vFkok dysDVj xkbZM ykbZu ij ml {ks= esa d`f"k Hkwfe dk tks ewY; ml o"kZ fu/kkZfjr gksrk gS] esa tks Hkh vf/kd gks mls Hkwfe ds ewY; dh x.kuk esa 'kkfey fd;k tkos o Hkwfe ds ewY; ij fu/kkZfjr lqijohtu 'kqYd fy;k tk;sA

(ii) ;fn Hkwfe ds cnys esa dksbZ fuekZ.k dk;Z fd;k tkuk vko';d gS rks fuekZ.k ij gksus okyk O;; {lqijfotu ,oa daVutUlh} o ml ij C;kt Hkkj iath;u yxus ds dkj.k vkus okys O;; Hkkj vkfn dks Hkh Hkwfe ds ewY; esa 'kkfey djuk gksxkA

(iii) ;kstuk ds varxZr Hkwfe ds fodkl dk;Z ij gksus okys O;; ij Hkh lqijohtu O;; o dUVhUtsalh O;; fy;k tk;sA

(iv) Hkou ds fuekZ.k dk;Z ij yxus okys O;; ,oa ml ij yxus okys lqijohtu o dUVsutsalh pktsZl Hkkfjr fd;s tk;sA

(v) Hkou fuekZ.k iw.kZ gksus ls LFkkuh; 'kklu dks gLrkarfjr fd;s tkus ds nkSjku la/kkfjr dk;Z esa yxus okys O;; dks vuqekfur :i ls vkdyu dj x.kuk esa 'kkfey fd;k tkosA

(vi) LFkkuh; fudk; dks dkyksuh gLrkarj.k ds le; v/kkslajpuk esa ejEer vkfn gsrq LFkkuh; fudk; dks nh tkus okyh jkf'k ds fy, Hkh mfpr izko/kku fd;k tk;sA

(vii) ;fn dqN laifRr;kaW fuekZ.k iw.kZ gksus rd vfodzhr jg tkrh gS rks ,slh vfodzhr lEifRr dk fodz; yxHkx nks o"kZ esa laHko gks ldsxk] dks /;ku esa j[krs gq, vfodzhr lEifRr ij yxh iwWath ds 38 W.P. NO. 5692/2013 & others vo:) gksus ds dkj.k iwWthxr C;kt gkfu dk Hkh izko/kku j[kk tk;sA

(viii) ;fn vU; dksbZ en ftlesa ;kstuk ds varxZr dksbZ O;;

gqvk gS rks mls Hkh ykxr ewY; fu/kkZfjr djrs le; ikfjr fd;k tkuk lqfuf'pr fd;k tk;sA

(ix) ;kstuk ds varxZr vkus okys Hkfo"; ds U;k;ky;hu oknksa ds fujkdj.k esa yxus okys vFkok vU; laHkkfor O;; ,oa ifj;kstuk nkf;Roksa dks n`f"Vdks.k j[krs gq, vko';d izko/kku fd;s tk;sA

(x) vafre ykxr ewY; fu/kkZfj.k dk izLrko rc gh Hkstk tkos tcfd Hkwfe ds fodkl ,oa Hkou fuekZ.k ls lacaf/kr lHkh dk;ksZ ds dk;kZns'k tkjh dj 75 izfr'kr ls vf/kd dk;Z iw.kZ gks pqdk gS rFkk vkxkeh 3 ekg ds Hkhrj dk;Z iw.kZ gks jgk gksA

(xi) ;kstuk ls lacaf/kr Hkwfe ij vc rd izhfe;e@dz; ewY;] iathdj.k O;;] yhtjsaV] Mk;otZu jsaV] lEifRr dj vkfn esa fd;k x;k O;; o fd;k tkus okyk laHkkfor O;;A

(xii);fn dk;Z iw.kZ gks pqdk gks rks e.My ds ifji= dz 135] fnukad 11-4-08 vkns'k esa vkfMV fjiksVZ dh izfr] fdUrq ;fn dk;Z vHkh fuekZ.kk/khu gh gS rks 50 izfr'kr dk;Z gksus ds i'pkr~ vkarfjd vads{k.k }kjk fd;k tkus okyk laf{kIr vads{k.k fjiksVZA

21. At this stage the reference can also be had of the Madhya Pradesh Housing Board Accounts Rules, 1991 which are framed by the State Government in exercise of powers conferred by subsection (1) and (2) of Section 102 of Adhiniyam 1972 for regulating Accounting and Financial Management of the Board. These Rules though deals with regulation of accounting and financing, it however, also reflects as to the actual costing and pricing of the projects.

39 W.P. NO. 5692/2013 & others

22. Rule 5.0 to 5.11 under Section V of the Rules deals with Project Accounting. Clause (e) of Rule 5.0 stipulates "(e) cost of land acquired and contractor's claims or project account shall be brought to account on accrual and cash basis respectively. Sales on project account shall be brought to account on accrual basis."

23. Rule 5.2 deals with project cost Heads which includes Cost Heads (Works), Cost Escalation (Materials), losses, overheads (Administration) and overheads (Interest).

Rule 5.2.2 stipulates that the group of Cost Heads (Works) shall be subdivided into suitable number of standard cost heads (e.g. Earth Work, Masonry, RCC) which shall be prescribed by the Housing Commissioner. A separate set of standard cost heads may if necessary, be prescribed for separate categories of projects. (e.g. Land Development Projects and Building Projects). During the progress of work as well as on completion of the project, a variance analysis shall be conducted to the Housing Commissioner the reasons for variation, if any, between estimates and actuals under each standard cost head.

Rule 5.2.3 provides that all administrative approvals, technical sanctions, contracts, workorders and bills shall also contain breakup under standard costheads. While project subsidiary account shall also collect expenditure under 40 W.P. NO. 5692/2013 & others standard cost heads, they may be done only once on completion of project where a project is executed under a single contract. In such cases, lumpsums amount under the group head "Cost Heads (Works)" may be posted for balancing the account when work is in progress.

Rule 5.4 stipulates the accounting of sale price. It provides for that:

"5.4 Sale Price. Sale price of sites and buildings shall be separately determined in accordance with the guidelines issued by the Board. But where yield a sale price for any reason different from cost price determined under Rule 5.3.2 and 5.3.3 (e.g. due to adoption of different rates of overheads for different income groups, charging premium from higher income groups for appreciation in land value, grant of concessions to Board's employees adoption of average expenditure on project instead of yearwise expenditure for calculating overheads on interest, adoption of uniform rate of interest of the entire construction period instead of varying rates of interest for separate years), sales may be brought to account in the revenue section of project accounts without prejudice to the operation of Rules 5.3.2 and 5.3.3 (These rules deal with account adjustment in the expenditure section of project account upto the stage of recording under the account head "Cost of Sales"). Accordingly account adjustment regarding capitalisation of overheads, transfer of assets from Divisions to Estate Management and incorporation of costs in the account "Cost of Sales" in the ledgers of Estate Management shall be carried out 41 W.P. NO. 5692/2013 & others immediately on completion of project and not held up till sale price approved by the Competent Authority."

Rule 5.6 deals with Project Inputs which includes Project Expenditure and Project Revenue. Land as project input is dealt with under Rule 5.7 of 1991 Rules stipulating.

"5.7 Land.5.7.1 Land acquired shall be brought to account on accrual basis, land made over to the Board free of cost shall be brought to account at nominal price.

5.7.2 Land account shall be maintained in General Account under prescribed heads of account (see 5.7.3). In addition a subsidiary account in the nature of a numerical accounts shall be maintained. Provision shall be made therein for recording cost price of land and it shall be agreed with the General Accounts.

5.7.3 Land acquired for reserve or for more than one project shall be brought to account under a distinct major head "Land (Reserve)". On commencement of work on a project, cost of the portion covered by the Project shall be transferred to the Project Account.

5.7.4 For the purpose of assessing the cost of a project, i.e., debiting "Cost of Sales" as well for the purpose of valuation of closing stock in Final Accounts, appreciation in land value shall be ignored. The Board may, however, take it into account for the purpose of determination of sale price.

5.7.5 On closure of a Project Account, unutlised virgin land, if any, shall be transferred back to the account "Land (Reserve)".

42 W.P. NO. 5692/2013 & others

24. These Rules are being referred to, to gather the methodology adhered to by the Board regarding ascertaining the cost price of land. Stipulations in Rule 5.4 and 5.7.4 are relevant which indicate, the discretion exercised by the Board, adopting different rates of overheads for different income groups, charging premium from higher income groups for appreciation of land value, grant of concessions to Board's employees adoption of average expenditure on project instead of yearwise expenditure for calculating overheads on interest adoption of uniform rate of interest for the entire construction period instead of varying rates of interest for separate years. And that as per Rule 5.7.4 the appreciation in land value may be ignored for the purpose of assessing the cost of a project as well as for the purpose of valuation of closing stocks in final accounts. The Board, however, can take into account the appreciation in land value in determining the sale price. This answers the allegation as to discriminatory treatment in comparison to Member of Parliament and the Member of Legislature Assembly, who are the class separate than these petitioners and are given different treatment, which in the given facts cannot be treated to be in violation of Article 14 of the Constitution of India.

25. However, one more aspect gets cleared by these very rules, i.e., appreciation of the land value which matters in determination of its cost price.

43 W.P. NO. 5692/2013 & others

26. There are various determinant factor to adjudge the increase in land value. The market price is the foremost. The committee constituted by Board as apparent from the resolution is not empowered to determine a market price. Instead it has been resolved that the market price of land shall be the same as determined by the Collector of the Districts.

27. That, Rules framed under Section 47 A of the Indian Stamp Act, 1899 read with Section 75 (Madhya Pradesh Preparation and Revision of Market Value Guidelines Rules, 2000.) lays down detail procedure for preparing Market value guidelines, i.e. set of values of immovable properties in different villages, Municipalities, Corporation and other local area in the State. These rates are revised annually as per Rule 5. That, while working out the values of immovable property, the Committees take into account the established principles of valuation mentioned in Rule 5 of the India Stamp Act (Madhya Pradesh Prevention of Under Valuation of Instruments) Rules, 1975; wherein in case of land, house sites, building and properties other than land, house sites and buildings various factors mentioned therein are taken into consideration while arriving at the market value.

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 44 W.P. NO. 5692/2013 & others 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.

29. Is the Board justified? Let us examine this aspect from the angle of Rules framed under Section 47 A of Indian Stamp Act which empowers Collector to fix the market value. The Collector fixes the rates of land in exercise of his powers conferred vide Rules framed under Section 75 read with Section 47 A of the Indian Stamp Act, 1899, i.e., Indian Stamp Act (Madhya Pradesh Prevention of Under Valuation of Instruments) Rules, 1975. The market rates fixed under these Rules are the rates mentioned in the basic valuation registers maintained for the purpose of detection of under valuation and collection of proper stamp duty. There are another set of Rules framed under Section 75 read with Section 47 A of the Indian Stamp Act, 1899, viz., Madhya Pradesh Preparation and Revision of Market Value Guidelines Rules, 2000. Apparent it is from the provisions contained in the Rules of 1975 and 2000 that the rates fixed by Collector are not final but are prima facie determination of the rate of the area concerned only to give 45 W.P. NO. 5692/2013 & others guidance to the registering authority to test prima facie whether the instrument has properly described the value of the property. In Ramesh Chand Bansal and others v. District Magistrate/Collector Ghaziabad and others (1999) 5 SCC 62, it has been held :

"5. .... ...Reading Section 47A with the aforesaid Rule 340A it is clear that the circle rate fixed by the Collector is not final but is only a prima facie determination of rate of an area concern only to give guidance to the Registering Authority to test prima facie whether the instrument has properly described the value of the property. The circle rate under this Rule is neither final for the authority nor to one subjected to pay the stamp duty. So far subsections (1) and (2) it is very limited in its application as it only directs the Registering Authority to refer to the Collector for determination in case property is under valued in such instrument. The circle rate does not take away the right of such person to show that the property in question is correctly valued as he gets an opportunity in case of under valuation to prove it before the Collector after reference is made........"

30. In R. Sai Bharathi v. J. Jayalalitha and others [(2004) 2 SCC 9] it has been held: "22 ....The guideline value has relevance only in the context of Section 47A of the Indian Stamp Act (as amended by TN Act 24 of 1967) which provides for dealing with instruments of conveyance which are undervalued. The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the 46 W.P. NO. 5692/2013 & others property disclosed in an instrument requiring payment of stamp duty. Thus the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value...."

31. For this reason, the rate determine for the purpose of adjudging an instrument of conveyance is not final, the Supreme Court has retrained from making it the basis for determination of market value under Section 23 of the Land Acquisition Act, 1899 (See Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad A.P. and others : [(1994) 4 SCC 595], Land Acquisition Officer, Eluru and others v. Jasti Rohini (Smt.) and another : [(1995) 1 SCC 717] and U.P. Jal Nigam Lucknow through its Chairman and another v. Kalra Properties (P) Ltd., Lucknow and others : [(1996) 3 SCC 124].

32. Though it is held in Lal Chand v. Union of India and another : [(2009) 15 SCC 769] that " 44 One of the recognised methods for determination of market value is with reference to opinion of experts. The estimation of market value by such statutorily constituted expert committees, as expert evidence can therefore form the basis for determining the market value in land acquisition cases, as a relevant piece of evidence. It will be however open to either party to place evidence to dislodge 47 W.P. NO. 5692/2013 & others the presumption that may flow from such guideline market value." However, unless established that the determination of market value is by the expert committee constituted under 2000 Guideline Rules, by following the 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.

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 48 W.P. NO. 5692/2013 & others 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 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 49 W.P. NO. 5692/2013 & others 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 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."

35. As noticed earlier in a Project Accounting under the Rules, 1991, 'Inputs' includes Project Expenditure and Project Revenue. Presently we are concerned with Project Expenditure which accumulates to draw the sale price of a Unit.

36. Project Expenditure comprises of expenditure on (i) Land,

(ii) stock materials, (iii) Contractors Payments, (iv) Wages to Labour employed departmentally and materials consumed on work executed departmentally, (v) Miscellaneous expenditure. 50 W.P. NO. 5692/2013 & others To this is added the Project Cost Heads which includes (i) Costs Heads (Works), (ii) cost escalation (materials), (iii) Losses, (iv) Overheads (Admn.) and (Overheads (Interest).

37. The costing is on accrual basis, i.e., actual expenditure meeted out in completion of a Project. There is no cavil to that effect, i.e., of adding actual expenditure to the cost. The dispute is when no expenditure is incurred as in the case of land wherever a construction is raised, whether still the Board would be justified in taking into consideration the Market Value of land as per Collector's guidelines as on the date of execution of instrument of transfer.

38. The self financing scheme has a distinct feature unlike sale of houses.

39. In M.P. Housing Board v. Anil Kumar Khiwani and another [(2005) 10 SCC 796] it has been held:

"17. .... .... .... In a selffinancing scheme, costing plays an important role. The building in question comprises of various units. These units are selffinanced. A buyer of the unit has to fund the cost of construction. A buyer under such a scheme cannot be permitted to buy a unit at a price which is less than the cost of construction. In a selffinancing scheme, pricing is generally based on cost of construction unlike sale of houses after they are completed, in which cases pricing is generally market related. In the case of a self financing scheme, no buyer can claim a right to purchase any unit at a price lower than the actual 51 W.P. NO. 5692/2013 & others construction cost, as the board raises its funds in turn from the banks and other financial institutions to whom the board is required to pay interest periodically.... .."

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 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".

41. The expression market value is a changing concept as held in V.N. Devadoss v. Chief Revenue Control, Officercum Inspector and others [(2009) 7 SCC 438] wherein it has been observed that it would be such as would have fetched or would fetch if sold in the open market on the date of exection of the instrument of conveyance."

52 W.P. NO. 5692/2013 & others

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.

44. The question as to whether the Housing Board enjoys absolute laissez faire in the matter of providing of the units/ residential houses there exists catena of decisions which not only curbs the absolute right of enhancement but have also set aside the enhancement on the ground of they being arbitrary, unreasonable and having no nexus with the unjust price. 53 W.P. NO. 5692/2013 & others

45. In Indore Development Authority v. Smt. Sadhna Agrawal : [(1995) 3 SCC 1], the Supreme Court taking into consideration its earlier decision in Bareilly Development Authority v. Ajai Pal Singh : [(1989) 2 SCC 116] and Delhi Development Authority v. Pushpendra Kumar Jain [(1994) Supp (3) SCC 494] has laid down that the Authority falling under Article 12 have no absolute right to enhance the price of its units without establishing the actual cost of inputs. It was held therein:

"Although, this Court has from time to time taking the special facts and circumstances of the cases in question has upheld the excess charged by the development authorities, over the cost initially announced as estimated cost, but it should not be understood that this Court has held that such development authorities have absolute right to hike the cost of flats, initially announced as approximate or estimated cost for such flats. It is well known that persons be longing to Middle and lower Income Groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results into great hardship when the development authorities announce an estimated or approximate cost and deliver the same at twice or three of the said amount. The final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements With the high rate of inflation, escalation of the' prices of construction materials and labour charges, if the scheme is not ready within the time frame, then it is 54 W.P. NO. 5692/2013 & others not possible to deliver the flats or houses in question at the cost so announced. It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed, In the instant case , the estimated cost for the LIG flat was given out at Rs.45,000/. But by the impugned communication, the appellant informed the respondents that the actual cost of the flat shall be Rs. 1,16,000/ i.e. the escalation is more than 100%. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation. We may add that this does not mean that the High Court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High Court has to be satisfied on the materials on record that the. authority has not acted in an arbitrary or erratic manner."

46. Applying the above ratio Division Bench of this Court in Smt. Nisha Singhal v. M.P. Housing Board, Bhopal and others (AIR 1996 MP 212) has been pleased to observe:

"8. .... we find that in this particular case, there was absolutely no justification for the Board to demand any extra price for the plot and for better location. The stand taken in the return that the extra price demanded was due to increase in costs of raw material, labour and supervision charges, has not been substantiated by producing any material or document 55 W.P. NO. 5692/2013 & others before the learned single Judge or in this Court. The learned counsel appearing for the Board was also unable to point out the details of various claims mentioned in the demand notice (AnnexureP/9). The argument advanced deserves to be outright rejected that since the rights and liabilities between parties are regulated by a contract. No writ could be issued against the Board. This branch of the Administrative Law in India has advanced from the case of Ramanna Shetty, AIR 1979 SC 1628 and Gujarat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848 and thereafter that an arbitrary action of an authority falling under Article 12 although falling in a contractual field is open to judicial review under Article 226 if the action is found by the Courts to be wholly unreasonable, arbitrary or discriminatory. The decision of the Supreme Court in Indore Development Authority's case (supra) is itself an authority that an arbitrary action of State falling under Article 12 is amenable to writ jurisdiction if the same is found to be wholly arbitrary and unreasonable may be, that; the, "State" is acting in contractual field.

47. In Karnataka Industrial Area Development Board v. Prakash Dal Mill : (2011) 6 SCC 714, the Supreme Court while holding that it is within the jurisdiction of the High Court to satisfy itself on the material on record that the authority has not acted in an arbitrary or erratic manner, it has been held by their Lordships:

23. The Board being a State within the meaning of Article 12 of the Constitution of India is required to 56 W.P. NO. 5692/2013 & others act fairly, reasonably and not arbitrarily or whimsically. The guarantee of equality before law or equal protection of the law, under Article 14 embraces within its realm exercise of discretionary powers by the State. The High Court examined the entire issue on the touchstone of Article 14 of the Constitution of India. It has been observed that the fixation of price done by the Board has violated the Article 14 of the Constitution of India. It is correctly observed that though Clause 7(b) permits the Board to fix the final price of the demised premises, it cannot be said that where the Board arbitrarily or irrationally fixes the final price of the site without any basis, such fixation of the price could bind the lessee. In such circumstances, the Court will have the jurisdiction to annul the decision, upon declaring the same to be void and nonest.

24. A bare perusal of Clause 7(b) would show that it does not lay down any fixed components of final price. Clause 7(b) also does not speak about the power of the Board to revise or alter the tentative price fixed at the time of allotment. The High Court has correctly observed that Clause 7(b) does not contain any guidelines which would ensure that the Board does not act arbitrarily in fixing the final price of demised premises. Since the validity of the aforesaid Clause was not challenged, the High Court has rightly refrained from expressing any opinion thereon.

25. Even though the Clause gives the Board an undefined power to fix the final price, it would have to be exercised in accordance with the principle of 57 W.P. NO. 5692/2013 & others rationality and reasonableness. The Board can and is entitled to take into account the final cost of the demised premises in the event of it incurring extra expenditure after the allotment of the site. But in the garb of exercising the power to fix the final price, it can not be permitted to saddle the earlier allottees with the liability of sharing the burden of expenditure by the Board in developing some other sites subsequent to the allotment of the site to the respondents.

48. Thus, unless established that an extra expenditure after the allotment of site has been incurred, the final pricing of the units by the Authority is always vulnerable. And if found to be irrational and unreasonable is liable to be declared null and void. Though a reliance is placed on the decision of the Supreme Court in Centre for Public Interest Litigation and another v. Union of India and others : (2000) 8 SCC 606 to substantiate the submissions that the price fixation in a contract being a policy matter, no interference ought be caused is noted to be rejected because the observation that the price fixation is a highly technical and complex procedure was in the context of contract under consideration based on the policy decision by Government of India taken in the year 1992 to offer some of its discovered oil fields for development on a joint venture basis to overcome foreign exchange crisis and to augment domestic crude production which led the Government of India to invite bids for 12 medium sized oil Fields and 31 58 W.P. NO. 5692/2013 & others small sized oil fields. Apparently, the fixing of price under said contract was through a complex procedure after taking into consideration various global factors. Whereas, in the case at hand, we are concerned with the Scheme of owing a house through self financing scheme launched by the Authority and the pricing being done through determinant factors, i.e., the input costs. And being a State under Article 12 of the Constitution of India. Therefore, the decision in Centre for Public Interest Litigation and another (supra) is of no assistance to the respondents.

49. In Delhi Development Authority and another v. Joint Action Committee, Allottee of SFS Flats and others [(2008) 2 SCC 672], it has been observed "69..... Although, the superior courts ordinarily would not interfere in the price fixation but there does not exist any absolute ban. In a case where fixation of price is required to be made in a particular manner and upon taking into consideration the factors prescribed and if price is fixed dehors the statutory provisions, judicial review would be permissible." It is further held "81. It is well settled that a definite price is an essential element of a binding agreement. Although a definite price need not be stated in the contract, but assertion thereof either expressly or impliedly is imperative."

50. In the case at hand, the case of the petitioners is not that they are not bound to pay the actual costs incurred in the 59 W.P. NO. 5692/2013 & others construction. Their objection is in respect of the determination of price by including the current rate of the land as determined by the Collector. The objection is based on the contention that it does not add to input cost, therefore, cannot be passed on the petitioner purchasers.

51. The importance of definite price being the bedrock of binding agreement was noted in the following terms in Delhi Development Authority and another v. Joint Action Committee, Allottee of SFS Flats and others (supra):

"80 A definite price is an essential element of binding agreement. A definite price although need not be stated in the contract but it must be worked out on some premise as was laid down in the contract. A contract cannot be uncertain. It must not be vague. Section 29 of the Indian Contract Act reads as under :

"Section 29 Agreements void for uncertainty Agreements, the meaning of which is not certain, or capable of being made certain, are void."

A contract, therefore, must be construed so as to lead to a conclusion that the parties understood the meaning thereof. The terms of agreement cannot be vague or indefinite. No mechanism has been provided for interpretation of the terms of the contract. When a contract has been worked out, a fresh liability cannot thrust upon a contracting party.

52. Much emphasis has been laid by the Board on the impugned circular that the same being statutory in nature has the binding effect. These circulars, however, were not made known to the buyers as would have led them to exercise their 60 W.P. NO. 5692/2013 & others discretion on knowing that the land price was volatile and was linked with the rates determined by the Collector from time to time.

53. In Bharat Sanchar Nigam Limited and another v. BPL Mobile Cellular Limited and others [(2008) 13 SCC 597], the issue involved was the effect of the internal circulars issued by the Department of Telecommunications in the contracts entered into by and between the parties in respect of/as regards interconnection links provided by it. Placing reliance on its earlier decision in L.I.C v. Escorts Ltd. : [(1986) 1 SCC 264], DDA v. Joint Action Committee, Allottee of SFS Flats [(2008) 2 SCC 672]; New India Assurance Co. Ltd. v. Nusli Neville Wadia :

[(2008) 3 SCC 279], it was held:

"43. In view of the aforementioned law laid down by this Court, there cannot be any doubt whatsoever that the circular letters cannot ipso facto be given effect to unless they become part of the contract. We will assume that some of the respondents knew thereabout. We will assume that in one of the meetings, they referred to the said circulars. But, that would not mean that they are bound thereby. Apart from the fact that a finding of fact has been arrived at by the TDSAT that the said circular letters were not within the knowledge of the respondents herein, even assuming that they were so, they would not prevail over the public documents which are the brochures, commercial information and the tariffs."

61 W.P. NO. 5692/2013 & others

54. In Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another : [(1986) 3 SCC 156, it has been observed " We would like to observe here that as the definition of "the State" in Article 12 is for the purposes of both Part III and Part IV of the Constitution, State actions, including actions of the instrumentalities and agencies of the State, must not only be in conformity with the Fundamental Rights guaranteed by Part III but must also be in accordance with the Directive Principles of State Policy prescribed by Part IV".

55. In Tamil Nadu Housing Board v. Service Society and another : [(2011) 11 SCC 13) it has been held:

"34. In view of the complex nature of acquisition, development, construction and allotment, it is necessary to safeguard the interests of the allottees and at the same time ensure that there is no loss to the public exchequer or the authority by making it to bear any part of the cost of development or cost of the plot or cost of construction. Normally a claim by the authority or the board for increase should be accepted if the authority or board certifies that what is claimed is the actual final cost, and supports it by a certificate from an independent chartered accountant or its own Accounts Department showing the break up of the cost.

62 W.P. NO. 5692/2013 & others

35. A standard certificate should furnish the following :

(a) break up of the tentative allotment price in regard to the plot, development and construction;

(b) break up of the final cost in regard to the plot, development and construction;

(c) a table showing total area, area used for plots, area used for common/service areas like roads, drains, parks and open spaces;

(d) a table showing the acquisition cost; and

(e) a table showing the construction cost.

It is open to the allottee to apply for the particulars and have it verified independently, before rushing to court."

56. In the case at hand the increase in final cost from the stage of Revised Tentative cost as apparent from the comparative statement is between 42 % to 52 %. The major chunk of this hike in price is contributed by the cost price of land which is almost equal to the total of revised tentative cost. Board having failed to establish the expenditure added towards cost price of the land after the date of allotment, is not justified in adding the same towards cost price of land to which it was on the date of allotment.

57. In view of above analysis the petitions are allowed. The direction that the allottees are liable to pay the land price at the rate as determined by Collector in exercise of his power on the date of execution of saledeed is quashed. Respondent Board is 63 W.P. NO. 5692/2013 & others directed to fix the price of the land as it existed on the date of issuance of allotment letter irrespective of fact whether the instrument of transfer was executed or not.

58. Petitions are allowed to the extent above. There shall be no costs.

(SANJAY YADAV) JUDGE VT

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