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Judgment
The instant Letters Patent Appeal has been preferred by
the Housing Board against the judgment/order dated 19.09.2016
passed in C.W.J.C. No. 17694 of 2015. The Writ Court after hearing
the parties allowed the writ application and quashed the price fixed by
the Board and directed the Board to recalculate the cost in accordance
with the procedure indicated under Annexure-8 appended with the
counter affidavit (sic.) supplementary counter affidavit.
C.W.J.C. No. 17694 of 2015 was filed by the writ
petitioner against the fixation of price of land and the demand vide
Letter No. 1902 dated 13.03.2014 and for a direction to the
respondents to raise demand on the basis of price calculation indicated
in the advertisement contained in Annexure-1 dated 10.05.2008
whereby the Board had published advertisement for allotment of
commercial plots of land.
The material facts necessary for deciding the present
Letters Patent Appeal lies in a narrow compass; The Bihar State
Housing Board (hereinafter referred to as the ''Board'') published
advertisement in the daily newspaper inviting application for
allotment of 10 plots at commercial rate in Lohia Nagar Housing
Colony and Bahadurpur Housing Colony. The advertisement was
issued for the purpose of allotment of land for educational institution
and health centre. The writ petitioner-respondent herein submitted
application in response to the advertisement dated 10.05.2008. The
writ petitioner was not allotted the land and as such petitioner filed
C.W.J.C. No. 9519 of 2009. The writ petition was disposed of on
03.02.2011.
The relevant part of the order dated 03.02.2011 reads
as follows:
The petitioner, a medical institution, applied for allotment of specified plot to the Housing Board. One of the conditions was recognition to such an institution either by the State Government or Central Government. The petitioner enclosed a communication from the Health Department of the State Government dated 5.8.2008 that there was no provision for recognition but that the State Government had no objection to the establishment of the institution on the plot of the Housing Board provided the petitioner agrees to comply with the provisions of the Private Clinic Establishment Act. It is not in controversy at Bar that the Act has still to be enforced. The respondent Board on 11.7.2009 rejected the application on the premise that the petitioner had not submitted documents of recognition from the State Government reiterated in Para 7 of the counter affidavit. The counter affidavit does not dispute that the State Government communication dated 5.8.2008 was submitted to the Board. In view of the recitals contained in the communication dated 5.8.2008 Counsel for the Board finds it difficult to persuade the Court that the petitioner had submitted no evidence vis a vis the State Government and he submits that the matter may be remanded to the Board for appropriate consideration afresh. There is no occasion for this Court to adjudicate the matter any further but to direct the respondent Housing Board to take a decision on the petitioner''s application in accordance with the discussions contained in this order within a maximum period of one month from the date of receipt and/or presentation of a coy of this order before them.
However, the order of the Writ Court was not carried
out and as such the petitioner filed MJC No. 68 of 2012, the contempt
proceeding was dropped vide order dated 04.04.2012 with observation
that the grievance of the petitioner can be agitated only in fresh writ
application. The petitioner, thereafter, filed C.W.J.C. No. 9744 of
2012, the said writ application was disposed of by CAV order dated
10.05.2013.
The relevant part of the order dated 10.05.2013 reads as
follows:
In view of the reasons and discussions made above, the decision of the board to allot the Plot Nos. G-5 and G-6 in favour of the petitioner vide office order no. 160 of 2009 as contained in Memo No. 10792 dated 09.12.2011 (Annexure-16) as also the Letter No. 10871 dated 14.12.2011 (Annexure-17) on the basis of Swiss Challenge Method is hereby quashed. The respondent-Board is directed to consider the letter dated 3rd of January 2012, written by the petitioner to the respondent-Board and on considering the same, issue allotment letter in terms of the advertisement, as contained in Annexure-1 with respect to the plot nos. G-5 and 6 in lieu of the original plot as mentioned in the advertisement on the same terms and conditions with proportionate cost on account of the area of the plots being reduced.
After the order of the Writ Court dated 10.05.2013, the
Board filed Civil Review No. 458 of 2013. The Court on
consideration of the rival submission of the parties passed the order uv
09.01.2014. The case of the petitioner was that the area of the plot
originally mentioned in the advertisement has been reduced therefore,
the proportional cost on account of the area of the plot be reduced
whereas the Board''s contention was that in terms of the advertisement
if the allotment letter issued after 31.05.2008 the price of the
allotment would be on up-to-date rate basis on the date of allotment as
per the terms of advertisement contains in Annexure-1 to the writ
application.
The order date 09.01.2014 whereby Civil Review No.
458 of 2013 as well as the Miscellaneous Jurisdiction Case No. 4953
of 2013 was disposed of, the Court clarified the order dated
10.05.2013 to the extent of up-to-date rate from the date of allotment.
The order dated 09.01.2014 was neither challenged by the petitioner
nor by the Board and as such, it become final between the parties.
The 3rd round of litigation started when the Board
raised a demand vide Letter No. 1902 dated 13.03.2014 and revised
the price of the land at Rs. 10,58,91,736/-. The petitioner under
protest deposited Rs. 40 lacs by way of Banker''s cheque on
02.04.2014, Rs. 52 lacs on 02.01.2015 and Rs. 52 lacs on 02.01.2015
and Rs. 67 lacs on 08.01.2015 and an agreement was executed on
13.03.2015 against the petitioner entered into the agreement under
protest.
In the aforesaid circumstance, the petitioner filed
C.W.J.C. No. 17694 of 2015 challenging the price fixed by the Board
and the demand for payment of cost of the land, vide Letter No. 1902
dated 13.03.2014 (Annexure-8 of the writ application). In the counter
affidavit the Board took the stand in para-12 that up-to-date price of
the land was Rs.13,09,95,041/- and in para-15 it has been said that
after the request of the petitioner, the Board calculated the price of the
two plots of the land to be allotted to the petitioner being Rs.
10,58,91,736/-. In para-17 the stand was taken that the petitioner was
informed the cost of the land to be allotted and he was inform that if
he is aggreable to the mode and manner he should informed the Board
its consent. Then the writ petitioner has informed the Board about the
acceptance of payment schedule under protest subject to final
measurement of the plot and in para-20 stand was taken that the
petitioner do not make any objection of price at the time of execution
of the agreement, therefore, the petitioner cannot challenge the price
of the property. Para-23 and 24 of the counter affidavit is reproduced
here:
That the Hon''ble Court in its decision dated 10.05.2013 passed in C.W.J.C. No. 9744/2012 was pleased to direct the Board to allot the two plots is GC/5 and GC/6 in lieu of the original plots as mentioned in the advertisement dated 10.05.2008 in its same terms and conditions as contained therein but with proportionate cost on account of the area of the plots being less than that applied for by the petitioner. Thereafter the Hon''ble court vide order dated 09.01.2014 passed in Civil Review No.
458/2013 filed by the Board by way of an abundant precaution seeking clarification on the above direction of the Hon''ble Court dated contained in order dated 10.05.2013 passed in C.W.J.C. No. 9744/2012 in view of the submission made before it on behalf of the Board that the advertisement states that if the allotment letter is issued after 31.05.2008 the price of the allotted plot would be on updated rate as on the date of allotment as per the terms of advertisement dated 10.05.2008, was pleased to clarify that the order dated 10.05.2013 passed in C.W.J.C. No. 9744/2012 is clarified to the said extent (as submitted by the Board). Thus the petitioner in view of the orders dated 10.05.2013 and 09.01.2014 of the Hon''ble Court is bound by the inter party decision and directions as contained therein i.e. the Board would charge upto date price of the two plots of land which have been allotted to the petitioner. 24. That in view of the above on the ground that the petitioner is bound by the term and conditions of the advertisement dated 10.05.2008 and also by the two orders of the Hon''ble Court dated 10.05.2013 and 09.01.2014 as also on the ground of constructive res- judicata the present writ petition is not maintainable for the relief sought for by the petitioner i.e. not to charge upto date price of the plots and charge price thereof as on 31.05.2008, moreso when it has already entered into a hire hire-purchase agreement with the Board and taken possession of the said two plots of land. Further the facts and circumstances would show, there was no delay or laches by the Board so as to allow the petitioner to claim that said relilef in its favour.
The Writ Court issued direction to the court to bring
on record the documents on the basis of which the price was fixed in
the year 2008 and thereafter, in the year 2014. Annexure-H was
enclosed by the Board as the basis of calculation of the cost of the
land on 31.05.2008. The Writ Court after hearing the parties and
considering the entire gamut of facts and controversy in the instant
case allowed the writ petition and quashed the price fixed by the
Board and the Board was directed to re-calculate the price of the plots
in accordance with the procedure adopted under Annexure-H
appended with the counter affidavit (sic.) supplementary affidavit.
The Housing Board aggrieved by the order of the
Writ Court has preferred the present Letters Patent Appeal. Mr. Lalit
Kishore, Senior Advocate appearing on behalf of the Housing Board
has contended that as per the order in Civil Review No. 458 of 2013
dated 09.01.2014 the Board was justified in demanding up-to-date rate
and he submitted that the up-to-date rate means market rate. On
various dates this LPA was heard and on 31.10.2017 on behalf of the
Board proceedings of the 193rd meeting of the Board which took place
on 10.02.2000 and on that basis communication dated 02.03.2001
issued by the Board was placed before the Court and as such the Court
directed the appellants to file supplementary affidavit by competent
authority. On behalf of the Board supplementary affidavit has been
filed. In paragraph-4, 5 of the supplementary counter affidavit stand
was taken that in terms of the Resolution dated 10.02.2001, the Board
has decided to calculate the up-to-date rate of the plot which is the
maximum price. Similar land, house and flat auction price or the up-
to-date cost calculated at the commercial rate or market price
whichever is higher should be the up-to-date price, referring to the
said resolution and follow up order Mr. Lalit Kishore submitted that
the Board is justified in raising the demand at the market price in view
of the Board Resolution dated 02.03.2001.
When Mr. Lalit Kishore was confronted with the
difference between the market price and up-to-date price in terms of
the order of this Court in Civil Review, which has become final
between the parties. Mr. Lalit Kishore submitted that although the
order of the Review Court was only up-to-date price and not market
price, but in view of the resolution of the Board enclosed with the
supplementary affidavit in the LPA the up-to-date price has to be read
as market price although he has conceded that there is difference
between the market price and up-to-date price. The Review Court has
not permitted market price rather on the application for review filed
by the Board the Court only clarified the order of the Writ Court dated
10.05.2013 to the extent of up-to-date price in terms of Annexure-1.
Per contra, Mr. Shrawan Kumar, learned Senior
Counsel appearing on behalf of the writ petitioner submitted that the
Board right from the beginning is acting in a hostile manner, which is
evident from the fact that the petitioner has to approach this Hon''ble
Court in the matter of allotment of land. Mr. Singh submitted that the
Writ Court directed the Board to take a decision for allotment in terms
of the advertisement as contained in Annexure-1. He has drawn the
attention of the Court to Annexure-1 which in most unambiguous
manner mentioned that the price of the plot was fixed up to
31.05.2008 in the advertisement dated 15.05.2008 and, as such, there
was no scope for any speculation or scope for calculation of market
price for allotment of the plots in question. He submitted that the
Board has preferred application for review and the Court has only
clarified the order dated 10.05.2013 to the extent that the price of the
allotted land would be on up-to-date rate as on the date of allotment,
as per the terms of the advertisement Annexure-1 and as such, that the
Board cannot determine the price of the plot contrary to Annexure-1,
which has become final and binding as rule of game between the writ
petitioner and the Housing Board in view of the order of the Writ
Court in C.W.J.C. No. 9744 of 2012 dated 10.05.2013 and Civil
Review No. 458 of 2013 dated 09.01.2014. Referring to the
supplementary affidavit filed on behalf of the Board, Mr. Singh
submitted that in writ proceeding after filing of the counter affidavit,
the Writ Court directed the Board to file supplementary counter
affidavit to place on record. The basis of the price of the plot fixed in
question in the year 2008 and thereafter in the year 2014. The Board
filed the supplementary counter affidavit and enclosed Annexure-H,
the basis of calculation. Mr. Singh submitted that in the
supplementary counter affidavit stand was taken with reference to the
proceeding of 2013 to justify raising demand at market price and now
the Board has taken a misleading stand by supplementary affidavit
and enclosing the resolution of the Board to substantiate that way
back on 10.02.2001, the Board resolved to determine up-to-date cost
of the plot on the basis of market value, as per the circle rate fixed by
the District Magistrate. He has drawn the attention of the Court to the
Resolution dated 10.02.2001, which was the resolution in the matter
of prescribing reserved price in the matter of auction of plot, house
and flat. He submitted that the instant case is not a case of auction of
the commercial plot, but from Annexure-1, it is crystal clear that it
was for allotment on the rate fixed by the Housing Board. Annexure-1
is not for auction rather it was a firm decision of the Board in
connection with the allotment of land for educational institution and
health centre. He submitted that the modality of fixation of reserved
price for auction is only relevant in the matter of auction and the same
cannot be applicable to the case of allotment of plot in terms of
Annexure-1.
Mr. Lalit Kishore in reply submitted that the plot is a
commercial plot and as such, the Board is justified in demanding
market price for allotment of the plots in question. He submitted that
the writ petitioner has made payment and has accepted the registration
with protest and as such, he cannot question the price of the plots and
the Writ Court was in error in directing re-calculation of the cost in
terms of Annexure-H.
After consideration of the rival submission of the
parties and on perusal of the order of the Writ Court in C.W.J.C. No.
9744 of 2012 and in Civil Review No. 458 of 2013, it is manifest that
the Board was required to allot plot to the petitioner on the conditions
enumerated in Annexure-1. More particularly, on the point that the
up-to-date rate in terms of the advertisement has to be worked out on
the date as on the date of allotment as per the terms of the
advertisement Annexure-1 is unambiguous in the matter of up-to-date
cost and it does not recognize market price as up-to-date price.
I have gone through the Resolution of the Board on
which Mr. Lalit Kishore, Senior Advocate heavily relied to contend
that up-to-date means market price. It is evidently clear that
distinction was made between market price and up-to-date price and
in view of the difference between up-to-date price and the market
price maintained by the Board, itself, the only question require for
determination in the present case is what is the method of determining
the up-to-date price. In fact, the mechanism to determine the up-to-
date price is no more issue in view of the fact that in C.W.J.C. No.
17694 of 2015 when the Board was asked to file supplementary
counter affidavit to indicate the basis of price fixation of the plot the
Board enclosed Annexure-H which is clinching on the point as to
fixation of up-to-date price. It was specifically mentioned in
Annexure-H that the price of the plot was Rs. 3,07,988/- on
31.03.1974 and the method of calculation of the up-to-date price on
31.05.2008 was on the basis of interest added on the cost of the plot as
on 31.03.1974. Annexure-H indicates that the cost of plot on
31.05.2008 was worked out on the basis of 14% interest as Rs.
1,71,89,098.77/-. Thus, from perusal of Annexure-H it becomes
crystal clear that the method of calculating up-to-date price is addition
of 14% interest on the price of the land.
In view of the above, I have no hesitation in holding
that the up-to-date price of the plot has to be worked out on the basis
of the mechanism indicated in Annexure-H. In fact, the Writ Court
after due consideration of the entire facts and circumstances of the
case and on consideration of the method of calculation of up-to-date
price, has rightly quashed the arbitrary fixation of up-to-date price by
the Housing Board which was determined on the basis of market
price. The Writ Court has rightly directed the calculation of the price
of the plots on the basis of the modality indicated in Annexure-H. I
have no manner of doubt that the resolution dated 10.02.2001 and the
office order 02.03.2001 Annexure-1A and 1B of the supplementary
affidavit in the instant LPA are not applicable in the matter of
determination of up-to-date price of the plot in question.
As the resolution and the office order aforesaid are
relatable to fixation of reserved price for auction of plot, house and
flat it has no application in the present case, where the price was
worked out for allotment and which only permits updation of the price
on the date of allotment and as such, I am of the considered view that
the Writ Court has committed no illegality or error, warranting
interference and as such, I do not find any substance in the present
LPA and the appeal is accordingly dismissed. The order of the Writ
Court is affirmed for the reasons indicated hereinabove.