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2014 DIGILAW 2954 (ALL)

U. P. Avas Evam Vikas Parishad v. Kalandri Narain

2014-09-22

DINESH GUPTA

body2014
JUDGMENT Dinesh Gupta, J. 1. This second appeal is preferred against the judgment dated 29.8.1997 passed by 6th Additional District Judge, Kanpur in Civil Appeal No. 134 of 1992 arising out of judgment dated 30.11.1991 passed by 3rd, Additional Civil Judge Kanpur Nagar in O.S. No. 279 of 1985. The brief facts which give rise to this appeal are that: 2. The plaintiff respondent, hereinafter called "the respondent" filed a suit against the defendant-appellant, hereinafter called "the appellant" for the relief of declaration of permanent prohibitory injunction. 3. The respondent has come up with the case that the respondent was labour and earning  Rs. 300/- per month. He had no residential house either in the Kanpur Nagar or any District of U.P. 4. The appellant U.P. Awas Evam Vikas Parishad basically involved in providing the residential accommodation to the public after developing the land and constructing the houses. 5. On 26th December, 1978 a scheme was launched by the appellant, to provide residential accommodation to the weaker section. Respondent belongs to weaker section hence applied for registration. 6. Later on 30.8.1984 a residential accommodation No. 5108 was allotted to the respondent but in the said allotment letter the appellant totally altered the terms and conditions of the initial registration brochure and appellant demanded exorbitantly higher prices and also demanded the same within a specified period failing which there was a condition for cancellation of the allotment. Since there were variations in the terms and conditions of the brochure the respondent filed a suit. 7. The suit was contested by the appellants alleging that there was no change in the terms and conditions in the brochure, only the estimated cost of house was given and after developing and lapse of time the prices escalated and the defendant rightly demanded escalated prices. 8. Further the defendant had right to alter the terms and conditions of the brochure as provided in the brochure itself. 9. After considering evidence and facts the suit of the respondent was partly decreed and the appellants were directed to re-estimate the price of the house and to fix installment of  Rs. 100/- per month. 10. Feeling aggrieved the appellant preferred this appeal. 11. 9. After considering evidence and facts the suit of the respondent was partly decreed and the appellants were directed to re-estimate the price of the house and to fix installment of  Rs. 100/- per month. 10. Feeling aggrieved the appellant preferred this appeal. 11. First appeal which was registered as civil appeal No. 134 of 1992 and was transferred to the Court of 5th Additional District Judge, vide order dated 29.8.1997 partly allowed the appeal and the order of the Trial Court so far as fixation of  Rs. 100/- installment was concerned, was dismissed and the remaining part of the Trial Court decreed by which the appellant were directed to refix the price of the allotted house was maintained. The appellant further directed to provide opportunity to hear the respondent and to recalculate the cost of the house and also recalculate and refix the rate of interest and also refix the one time cost of the house. 12. Feeling aggrieved the appellant preferred this appeal before this Court. Notices were issued to the respondent and record were requisitioned. 13. At the time of admission of the appeal both the parties agreed that appeal be decided on merit. 14. Heard Sri Shri Kant, learned Counsel for the appellant and Sri K.K. Tripathy, learned Counsel for the respondents. 15. The Counsel for the appellant submitted that both the Courts below have erred in decreeing the suit of the respondent. 16. Admittedly, there was only a registration in favour of the respondent which does not make him entitle for allotment of the house. 17. The allotment of the residential accommodation was made after a lapse of six years and when allotment were made by drawing of plots the price prevalent at the time of allotment was fixed as price payable by the allottee. 18. The respondent cannot claim as of right the price of the house at the time of registration. 19. That under the Clause 13 of the terms and conditions issued at the time of registration the appellant has reserved his right to alter and vary the terms and conditions and the price advertised in the registration brochure was also an estimated price which was subject to revision. 20. Both the Courts below held that appellant has right to vary and alter the terms and conditions and the price originally fixed was estimated price which has been rightly refixed. 20. Both the Courts below held that appellant has right to vary and alter the terms and conditions and the price originally fixed was estimated price which has been rightly refixed. The Courts were not justified in issuing direction for allotment and refixation of installment. 21. That the allotment of the house which was issued on 30.8.84 has been cancelled by the appellant which has become final, therefore the respondent was not entitled to any re-allotment. Both the Courts below have exceeded there jurisdiction directing the appellant for allotment of the house in dispute. 22. The house in dispute after the cancellation of allotment in favour of the respondent has already been re-allotted to third person and is not available for allotment, therefore, the Court below has wrongly decreed the suit and passed a decree which in fact was not executed. 23. The respondent has only deposited  Rs. 50/- that was in the year 1978 and nothing has been paid later on, therefore, he is also not entitled to any relief. 24. Counsel further submitted that the Appellate Court has solely relied upon a case law in Ajai Pal Singh v. Bareilly Development Authority 1986 (12) ALR 350 which was overruled by Apex Court vide its decision in Bareilly Development Authority v. Ajay Pal Singh AIR 1989 SC 1076 . 25. The Counsel further submitted that since the decision of the Appellate Court based on a over ruled decision hence could not be sustained and the appeal deserves to be allowed and the judgment of both the Courts below are liable to be set aside. 26. Counsel for the respondent submitted that the judgment and decree passed by First Appellate Court is perfectly legal and justified. The appellant issued a brochure in the year 1978 and offered a public house constructed over an area of 40.92 sq. meter and the price of the house was fixed between  Rs. 8,000/- to  Rs.10,000 and  Rs. 4,000/- to be paid at the time of allotment and remaining amount shall be payable over a period of 20 years that is in 240 monthly installments and the rate of interest was also fixed at 6.5%. However, letter dated 30.8.1984 in which the appellant unilaterally changed the entire terms and conditions of the brochure and fixed the price of the house at  Rs. 16,766/- and demanded first installment of  Rs. However, letter dated 30.8.1984 in which the appellant unilaterally changed the entire terms and conditions of the brochure and fixed the price of the house at  Rs. 16,766/- and demanded first installment of  Rs. 4594.80 and also demanded the same within a period of 15 years instead of 20 years and also enhanced the rate of interest as 9.5% since the price and the rate of interest was enhanced and on the contrary the area of the plot was reduced to 36 sq. to 20 sq. meter. The respondent filed suit for enforcement of the brochure's conditions and the suit was decreed holding that the appellants are liable to charge earlier fixed amount and thus directed the appellant to refix the price of the house and also allow the respondent to pay the amount in  Rs. 100/- monthly installment 27. The Appellate Court while dismissing the appeal of the appellant further directed the appellant to recalculate the price of the house and also allotted the house to the respondent and reassess and refix the price of the house and also allow the respondent to pay the amount in installment as fixed by the appellant. 28. The Counsel further submitted that the case law upon which the Appellate Court rely was produced by the appellant themselves and now they cannot say that over ruled decision was relied upon by Court. 29. The Counsel further submitted that the respondent belongs to the weaker section and both the Courts below considering the difficulty and hardship of the respondent directed the appellant to allot the house to the appellant respondent and also reconsider the amount of price and amount of installment. There is no illegality in order passed by both the Courts below and appeal require no scrutiny and deserves to be dismissed. 30. I am unable to accept the contention raised by the learned Counsel for the respondent. By bare perusal of the Appellate Court order the Appellate Court has allowed the appeal so far as it relates to the decree of the Trial Court directing the appellant to refix the cost of the house and to receive the amount in monthly installment of  Rs. 100/- per month further the First Appellate Court has totally relied upon the judgment of this High Court passed in the case of Ajai Pal Singh v. Bareilly Development Authority (supra). 31. 100/- per month further the First Appellate Court has totally relied upon the judgment of this High Court passed in the case of Ajai Pal Singh v. Bareilly Development Authority (supra). 31. Both the Courts below held that the appellant had right to vary and alter the terms and conditions as mentioned by the appellant in their brochure, once it is settled that the appellant had right to alter the terms and conditions and also both the Courts below held that the price given in the brochure was only a estimated price however, relying upon the decision of this Court Appellate Court recorded a finding that since the monthly installment has been enhanced and the price of the house has also been enhanced as per the decision of this Court was not proper and then directed the appellant to reconsider the price of the house and also amount of the installment payable by the respondent. 32. The respondent of the above said case law Bareilly Development Authority preferred appeal against the said order and before the Apex Court vide order dated 7.2.1989 set aside the order passed by this High Court. Thus the findings of the Appellate Court solely based on the judgment of this Court could not be sustained as the case law relied upon by the Appellate Court had already been over ruled. The case law in hand by the Hon. Apex Court squarely covered the present case also. The Apex Court while setting aside the order passed by Allahabad High Court clearly held that: "The respondents were under no obligation to seek allotment of houses/flats even after they had registered themselves. Notwithstanding, they voluntarily registered themselves as applicants, only after fully understanding the terms and conditions of the brochure inclusive of Clauses 12 and 13 and Notes 1 and 2 of the General Information Table which we have reproduced above, they are now trying to obtain the houses/flats at the price indicated in the brochure at the initial stage conveniently ignoring the other express conditions by and under which the B.D.A. has reserved its right to change the terms and conditions as and when felt necessary, evidently depending upon the escalation of the prices. One should not loose sight of the fact that the B.D.A. did not compel anyone of the applicants to purchase the flat at the rates subsequently fixed by it and pay the in creased monthly installments. On the contrary, the option was left over only to the allottees. In fact, the respondents in Civil Appeal No. 2809 of 1986 except the four above mentioned have unconditionally accepted the changed terms and conditions. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the B.D.A. have entered into the realm of concluded contract pure and simple with the B.D.A. and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the B.D.A. in the contractual field. In the case before us, the contract between the respondents and the B.D.A. does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty AIR 1979 SC 1628 case has erroneously held: "It has not been disputed that the contesting opposite party is included within the term 'other authority' mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness." This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case there was no concluded contract as in this case. Even conceding that the B.D.A. has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly installments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e., B.D.A. in this case) in the said contractual field. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple Radhakrishna Agarwal and others v. State of Bihar and others (1977) 3 SCR 249 ; Premji Bhai Parmar and others etc. v. Delhi Development Authority and others (1980) 2 SCR 704 and D.F.O. v. Biswanath Tea Company Ltd. (1981) 3 SCR 662 . In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly installments and giving directions in the writ petitions as prayed for." 33. Since the Appellate Court has relied upon the decision of High Court which has already been overruled by the Apex Court the finding recorded by the Appellate Court also not sustainable and liable to be set aside. 34. Further the appellant has categorically stated that the house which was offered to the respondent was already re-allotted to some other person after cancellation of allotment made earlier in favor of the respondent hence the directions of both the Courts below for which the refixing prices of the house and the monthly installments was also not sustainable. In view of the above the appeal deserves to be allowed and the suit of the respondent is liable to be dismissed throughout.