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2008 DIGILAW 256 (PAT)

Bihar State Housing Board v. Shiv Sahay Verma

2008-02-06

CHANDRAMAULI KR.PRASAD, J.N.SINGH

body2008
Judgment 1. Respondent Nos. 2 to 5 i.e., Bihar State Housing Board and its officers being aggrieved by the order dated 25.9.2006 passed by a learned Single Judge in C.W.J.C. No. 5909 of 2001 allowing the writ application have preferred this appeal under Clause 10 of the Letters Patent. 2. Short facts giving rise to the present appeal are that the writ petitioner purchased Low Income Group house no. LH-1/27 in the year 1983 under Hire Purchase Agreement, the tentative consideration money being Rs. 43,511.00, on 30.11.1983. According to the terms of Higher Purchase Agreement he had to pay 180 monthly instalments of which last instalment was to be paid sometime in the year 2004. The writ petitioner deposited the instalments of higher amount than what was fixed and accordingly the entire consideration money was deposited in less than 140 instalments by September, 2000. 3. According to the agreement, the price fixed was tentative and was subject to increase and it further provided that in case of dispute, same is to be referred to the arbitrator named in the agreement. 4. Later on, by letter dated 1.3.2001 the writ petitioner was asked to pay an additional amount of Rs. 1,54,657.00 by 31.12.2001 in addition to the amount already paid by him as the price of the house. The petitioner challenged the same by filing a writ application which has given rise to the impugned order. The learned Single Judge allowed the writ application taking into account that several houses of the same type were allotted to different persons at the price fixed at the time of agreement, but their price has not been enhanced. The learned Single Judge recognized the right of the Bihar State Housing Board to increase the price of the house but found absence of any reasons for the said purpose and found the enhancement of the price to be illegal. 5. Mrs. Nilu Agrawal appearing on behalf of the appellant submits that the Bihar State Housing Board, hereinafter referred to as the Board did not err in fixing the tentative price of the house as it had reserved its right to increase the price of the house in question. She also points out that in face of arbitration clause the Writ Court ought not to have interfered in the matter. She also points out that in face of arbitration clause the Writ Court ought not to have interfered in the matter. In support of the submission, reliance is being placed on a Division Bench judgment of this Court in the case of Bihar State Housing Board V/s. Manju Singh, 2007 3 PLJR 624 and our attention has been drawn to paragraph 4 of the judgment which reads as follows: "In a very recent judgment, the Hon ble Supreme Court has upheld the right of the appellant-Board to claim increased price of a flat due to increase in cost of land acquisition and due to increase in cost of construction. In such view of the matter, it cannot be said that the condition as contained in the contract that the price is tentative and that it can be revised is unfair and unreasonable." 6. Yet another decision on which reliance is being placed is a Division Bench judgment of this Court in the case of The Bihar State Housing Board & Ors. V/s. Sahil Kumar Chanda & Anr., 2007 3 PLJR 486 and our attention is drawn to paragraph 5 of the judgment in which it has been held as follows: "Learned counsel for the appellants submitted that there is already a clause in the sale agreement saying that there may be hike in the price of the flat and accordingly the Board would reserve the right to make a demand. It is further submitted that there is also arbitration clause in the agreement and in case there would have been any dispute pertaining to the demand notice, the arbitration clause could have been invoked by the aggrieved person but admittedly, this was not done and the extraordinary jurisdiction of this Court under Article 226 of the Constitution was invoked. In this connection, learned counsel for the appellant has produced before us an order passed by a Bench of this Court in LPA No. 1373 of 2000. A Bench of this Court dealing with similar situation, held that in view of the arbitration clause, extraordinary power could not have been exercised and the aggrieved party could have invoked the arbitration clause." 7. Mr. Sri Kant Pandey appears on behalf of the respondents. 8. There is no difficulty in accepting the broad submission of Mrs. A Bench of this Court dealing with similar situation, held that in view of the arbitration clause, extraordinary power could not have been exercised and the aggrieved party could have invoked the arbitration clause." 7. Mr. Sri Kant Pandey appears on behalf of the respondents. 8. There is no difficulty in accepting the broad submission of Mrs. Agrawal that the Board has right to fix tentative price of the house and further it has reserved its right under the terms of the agreement to increase the price. Further in case of dispute the matter is to be referred to a named arbitrator. In fact the judgments relied on by her supports her contention. 9. However, in the case in hand the learned Single Judge had not found the action of the Board illegal on the aforesaid grounds but had found that no occasion existed to enhance the price. It is relevant here to state that the Board has reserved the right to increase the price under Clause 4(a) of the Hire Purchase Agreement. It reads as follows: 4.(a) "That the total disposal price indicated above is according to the present estimate and hence tentative. Increase in the cost of the construction or development or ue to increase in cost of land acquisition due to any decision/award of Court of law or legislation or due to increase in the cost due to final valuation or calculation or otherwise as per the decision of the Board shall be payable by the settlee either in instalments thereof on in lump sum within the period decided by the Board. The settlee shall under no circumstances be entitled to demand any accounts relating to the cost or question or dispute it and this shall be fixed by the Board in its sole discretion." 10. No material was placed before the learned Single Judge as to the reasons which compelled the Board to increase the cost of house. Nothing has been placed before us. In that view of the matter, we are of the opinion that the learned Single Judge did not err in quashing the additional demand. 11. As regards the submission that in face of the arbitration clause, the Writ Court ought not to have interfered in the matter, we are of the opinion that in the facts of the present case the learned Single Judge did not err in doing so. 11. As regards the submission that in face of the arbitration clause, the Writ Court ought not to have interfered in the matter, we are of the opinion that in the facts of the present case the learned Single Judge did not err in doing so. It is well settled that existence of the arbitration clause itself does not exclude the jurisdiction of this Court as it is well known that it is a matter of discretion not of jurisdiction. Herein the present case the learned Single Judge found that the Board had increased the price without any justification but no increase has been effected in the case of similarly situated house. It seems that writ petitioner is subjected to this treatment as he had paid all the instalments before time. On these facts, it cannot be said that the learned Single Judge faulted in exercise of its jurisdiction. 12. We do not find any merit in the appeal. It is accordingly dismissed.