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SCA/277419/1996 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2774 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
JAYSHREE
RAMDEVNAGAR JAGRUTI YUVAK MANDAL - Petitioner(s)
Versus
GUJARAT
SLUM CLEARENCE BOARD & ORS & 2 - Respondent(s)
=========================================================
Appearance
:
MR
PR THAKKAR for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
MR
DA BAMBHANIA for Respondent(s) : 1,
RULE SERVED for Respondent(s)
: 2 - 3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 22/10/2008
ORAL
JUDGMENT
The
petition has been filed by a registered Association of persons who
are stated to be beneficiaries of a scheme prepared by respondent
no.1 Gujarat Slum Clearance Board(Board for short).
It
is the case of the petitioner that its members were persuaded to
vacate the land occupied by them for their residence on the premise
that respondent No.1 Board shall construct proper houses and
handover the same to the occupant for a sum of Rs. 15,000/- per
allottee. However, there was much delay in implementation of the
scheme though the members had handed over the possession well in
time. Resultantly, there was price escalation and respondent
No.1-Board demanded a total of Rs. 34,506/- for handing over the
possession of allotted premises. It is contended that such price
escalation was unauthorised, impermissible and arbitrary.
On
behalf of respondent No.1-Board, affidavit in reply has been filed
contending inter-alia that members of the petitioner association
were encroaching on Government land. To solve the problem, they were
given preferential allotment of premises to be constructed by the
Board. Some of the occupants had resisted eviction, resulting into
delay in implementation of the scheme. Ultimately, upon completion
of the construction, premises were offered for Rs. 34,506/- payable
in installment spread over 15 years and allotments were made by
drawing lots. The allottees accepted the terms and accordingly after
entering into agreement allotments were made.
It
may be noted that though said affidavit was served to the petitioner
in the year 1996, so far no rejoinder has been filed.
It
appears that initially Learned Single Judge of this Court granted
stay against further recovery from allottee. However, Division Bench
of this Court by an order dated 23.9.1997 passed in Letters Patent
Appeal No. 445/1997 vacated the stay. Learned advocate for the
petitioner stated that the members have thereupon paid the remaining
amount also.
Short
question is whether the petitioner can resist respondent No.1-Board
recovering total amount of Rs. 34,506/- for allotment of the
premises.
Learned
advocate for the petitioner placed heavy reliance on the decision of
Kanpur Development Authority v. Smt. Sheela Devi and others etc.
reported in AIR 2004 Supreme Court 400.
On
the other hand, learned advocate Shri Bambhania for respondent
No.1-Board contended that it is a matter of contractual obligation
between the parties. The allottees had undertaken to abide by the
terms of allotment. They now cannot challenge such conditions.
From
material on record, it is clear that upon completion of the
construction of premises, the same was offered to the interested
person for sale consideration of Rs. 34,506/- Those who were
allotted the premises were handed over possession upon entering into
agreement. Sometimes thereafter, the present petition has been filed
questioning price escalation.
Quite
apart from impermissiblity of such a stand at this stage, even
otherwise respondent No.1-Board has sufficiently explained reasons
for price escalation. As noted it is stated that there was much
delay in handing over possession by members of association
themselves resulting into delay in implementation of the project.
There is no denial to these averments in the affidavit in reply. I
have therefore, no reason to discard such contention. In any case
allottees not only applied for being considered for allotment, upon
drawing of lots they were offered premises at above-mentioned rate.
They entered into agreement with the Board and accepted the
allotment on terms as specified in the agreement. On all counts
therefore, no case for interference is made out. In case of Kanpur
Development Authority(supra),
Apex Court had noted that there was a clause limiting
escalating only upto 10% and further that there was unexplained
delay on part of Development Authority in handing over the
possession even after completion of the construction and further
that price escalation was four and half times the initial price
indicated. In the present case, facts are substantially different.
Under
the circumstances, petition fails, is hereby dismissed. Rule is
discharged.
(Akil
Kureshi,J.)
(raghu)
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