Rajendra Prasad Singh v. State of Bihar — 1992 DIGILAW 298 (PAT)

ORDER 1. These are seven writ applications filed by different petitioners for a common relief. Respondents in all these writ applications are also common. Therefore, only one counter affidavit has been filed in CWJC No. 944 of 1991 (R) with a leave of the Court to adopt the contents of the counter affidavit in other writ applications instead of filing different counter affidavits. 2. The parties have been heard and with their consent, these applications are disposed of at the stage of admission itself, by this common order. 3. The petitioners in all the writ applications are auction purchasers of different MIG (Minimum Income Group) Houses through open auction bid, held on 15.7.1984. The details of such houses, amount of bid money and mode of payment etc. have been given in the writ applications with respect to each case. 4. After finalisation of the bid, the Bihar State Housing Board (hereinafter referred to as the Board), issued letters of allotment on 22.10.1984. Thereafter the petitioners of CWJC No. 944 of 1991 (R) executed deed of agreement on 26.4.1985 and 13.5.1985 respectively, with the Board. Similarly, agreements in all the cases were also executed on different dates but in the year 1985 itself. 5. Chapter II of the Bihar State Housing Board (Management and Disposal of Housing Estates) Regulation, 1983 (hereinafter referred to as the Regulation) deals with the principles of allotment. Sections 6 and 7 of the Regulation, which are relevant for the purpose read thus:– "6. The disposal of a property shall be effected by either sale or hire purchase or in such other manner and subject to such terms and conditions as may be decided by the Board from time to time. 7. The hire purchase price or sale lease bold or the disposal price, as the case may be, shall be such price as may be determined by the Board or as arrived at by auction in cases prescribed hereinafter" The Board advertised for auction of 42 houses at Harmu Housing Colony, Ranchi, on 15.7.1984. The petitioners, as per the terms and conditions, participated and succeeded in the bid and accordingly, as stated in the foregoing paragraphs, other formalities were observed. 6. The petitioners, as per the terms and conditions, participated and succeeded in the bid and accordingly, as stated in the foregoing paragraphs, other formalities were observed. 6. In these writ applications, the petitioners have prayed for quashing different letters, impugned in the respective writ applications, whereby they were directed by the Executive Engineer of the Board to deposit the balance amount within the time fixed in the letters failing which action under section 59A of the Bihar State Housing Board Act, 1982 (hereinafter called the Act) shall be taken. Section 59A of the Act prescribes mode of recovery of rent, premium or any kind of dues or damages to be recoverable under the provisions of the Bihar and Orissa Public Demands Recovery Act, 1914. 7. Mr. P.K. Sinha, learned counsel for the petitioners, contended that the threatened action of the respondents vide the impugned letters, is unreasonable and discriminatory. According to him, for the same and similar type of houses, having been allotted to different allottees, initial payments were made at Rs. 12,631.50 and for payment of remaining amount 133 equal monthly installments have been fixed whereas in cases of MIG houses, which were even incomplete and damaged, the bid amount on average basis is more than Rs. one lakh and as per the terms, the balance of 75% amount has to be paid within six-yearly equated installments, failing which interest is to be charged at the rate of 14% per annum and in case of default, at the rate of 18%. Therefore, it is urged that comparing the aforesaid two, unreasonable discrimination of the respondents cannot be overlooked. He has further urged that it is well settled that two equals cannot be treated as unequal. In support of his contention, he has placed reliance over a case of Premi Bhai Parmar and others vs. Delhi Development Authority and others, AIR 1988 SC 738. In the said case, the petitioners were the allottees of flats constructed by the Delhi Development Authority, located at different places. They had questioned the decision of the Development Authority, to collect surcharge as a part to the sale price of such flat from each of them as unauthorised and discriminatory in character. The facts of the aforesaid case are quite different. Therefore in our view it cannot held the petitioners in any manner. They had questioned the decision of the Development Authority, to collect surcharge as a part to the sale price of such flat from each of them as unauthorised and discriminatory in character. The facts of the aforesaid case are quite different. Therefore in our view it cannot held the petitioners in any manner. However, in order to appreciate the settled norms it would be useful to quote a relevant passage from paragraph 9 of the report hereunder, which is based on a dictum of will is on Constitutional Law. What is forbidden by Article 14 is discrimination amongst persons of the same class and for the purposes of allotment of flats schemes-wise, allottees of flats in the same scheme, not different schemes in the same income bracket, will have to be treated as a class and unless in each such class there is unequal treatment or unreasonable or arbitrary treatment, the complaint that Article 14 is violated cannot be entertained. In the aforesaid case, their Lordships have also noticed the case of State of Gujarat vs. Shri Ambica Mills Ltd. Ahmedabad (1974)3 SCR 760 at p. 782 wherein Hon'ble Justice Mathew, speaking for the Court observed as under:– "A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is what does the phrase similarly situated mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law be either the elimination of a public mischief or the achievement of some positive public good." In the case before us, admittedly, the Code of allotment of the houses to the petitioners and other persons was quite different. The allotment to the petitioners was made through auction bid. The allotment to other allottees, with whom the petitioners are comparing, was on the basis of hire purchase scheme and, therefore, the mode of allotment was quite different. 8. Mr. Sinha next contended that in any view of the matter, the terms and conditions of the contract, that is, lease in the present case, are arbitrary and opposed to the public policy, hence, void under section 23 of the contract Act as also violative of Article 14 of the Constitution. 8. Mr. Sinha next contended that in any view of the matter, the terms and conditions of the contract, that is, lease in the present case, are arbitrary and opposed to the public policy, hence, void under section 23 of the contract Act as also violative of Article 14 of the Constitution. In support of his contention, he has placed reliance over the case of Central Inland Water Transport Corporation Limited and another vs. Brojo Nath Ganguly and another (1986) 3 SCC 156 . We fail to appreciate how the ratio decided in the aforesaid case is available to the facts of the present case. Here, in the present case, it cannot be said that the petitioners were arbitrarily coerced to enter into an agreement and abide by its terms and conditions. This was a case of open auction bid. The terms and conditions were openly floated. Apart from the aforesaid, there is statutory provision under the Act and the Rules of the Board prescribing mode for disposal of properties and principles of allotment through different scheme. This also cannot be ignored that the auction bid in this case was held some time in the year 1984 and the petitioners' agreements were executed in the year 1985. Question thus arises whether in the year 1992 the petitioners can be allowed to challenge such a scheme? To answer the aforesaid, it must be held that they cannot do so at this stage. 9. It is further stated that in order to agitate their grievances, the petitioners have filed representations before the Chairman-cum-Managing Director of the Board in the year 1986 itself, praying therein for payment of remaining amount in 144 monthly installments and interest at the rate of 1% per annum; what is being done in other cases. The representations of the petitioners were forwarded to the Minister of the State, Housing, Government of Bihar, for consideration wherein action has already been taken and necessary information were sought for. It is urged that till final decision is taken by the Government, the respondent Executive Engineer of the Board is not justified in coercing the petitioners for making payment with respect to the remaining amount. Learned counsel has also drawn our attention towards a letter of the Minister of State, contained in Annexure-7 wherein he has requested the Secretary of the Board to expedite the disposal of the grievance of the petitioner. Learned counsel has also drawn our attention towards a letter of the Minister of State, contained in Annexure-7 wherein he has requested the Secretary of the Board to expedite the disposal of the grievance of the petitioner. 10. Mr. Debi Prasad, Senior Advocate, appearing for the Board, submitted that auction in the present case took place in the year 1984 and accordingly agreement etc. were finalised in the year 1985 and consequent thereto they were given possession. Therefore, the petitioners cannot be allowed to challenge the mode, terms and conditions of allotment and agreement for payment of the balance amount in this writ application at this stage. He has further contended that an allottee through a hire purchase scheme and a purchaser through open auction bid cannot be equated. Therefore, if the Board has decided different modes of payment of the installments and fixed different conditions, it cannot be termed as unreasonable and arbitrary. Article 14 of the Constitution prohibits discrimination amongst persons of the same class. Admittedly, the petitioners and other allottees for whom 144 installments were fixed are covered under two different schemes. Therefore the same cannot be bracated to hold that the decision of the respondent was unreasonable as per the provisions of Article 14 of the Constitution. He has drawn our attention towards sub-section (xi) of Section 2 of the Regulation which prescribes two modes of payment to be fixed by the Board, that is, 'disposal price' or 'hire purchase price'. In relation to a property means such price as may be fixed by the Board and for such property, as may be determined by auction. In other words in case of hire purchase, the Board has to fix the price and the mode for payment. With respect to allotment for the petitioners, it was determined by auction. It is urged, in the background of the aforesaid provision, the petitioners cannot be allowed to challenge the agreement at this stage. 11. The petitioners have also contended that with respect to some of the houses, possession has not yet been given. Therefore, the Board is completely unjustified in charging interest with respect to the balance amount. Mr. Debi Prasad, on the other hand, contended that possession has been given to all the petitioners. But, he fairly agreed that interest with respect to such houses shall be charged from the date of possession. Therefore, the Board is completely unjustified in charging interest with respect to the balance amount. Mr. Debi Prasad, on the other hand, contended that possession has been given to all the petitioners. But, he fairly agreed that interest with respect to such houses shall be charged from the date of possession. Accordingly, we direct, the Board cannot charge interest with respect to those houses possession of which has not been given. 12. Having considered the relevant materials on the record and the submissions advanced on behalf of the parties, we feel inclined to observe that the petitioners cannot be equated with the persons who have been allotted houses on hire purchase scheme. As held by the Supreme Court, Article 14 of the Constitution prohibits discrimination amongst persons of the same class and for the purposes of allotment it must be in the same scheme and not different schemes. It is well settled that a reasonable classification is one which includes all who are similarly situated. Apart from the aforesaid, it is established and cannot be denied that the petitioners before taking part in the bid bad full knowledge with respect to the terms and conditions of mode of payment. It can be said that these petitioners with eyes open participated in the bid. Therefore, at this stage they cannot be allowed to challenge the terms and conditions of the agreement and the mode for payment. Therefore, the petitioners have no alternative but to abide by the terms and conditions agreed upon. Accordingly, we find no reason to interfere with the impugned orders. 13. However, the petitioners would be at liberty to pursue their remedy before the Board or the Government for which, according to them, representations were filed. 14. In the result, subject to the aforementioned observations, these writ applications are dismissed.