JUDGMENT
Swatanter Kumar, J.
C.M. No. 12742 of 1996.
1. This writ petition was disposed on 24.4.1996 by passing the following order :-
“For the reasons recorded/discussed in C.W.P. No. 1816 of 1984, this writ petition is also dismissed. Interim order dated 9.1.1984 is vacated.”
2. Thereafter the petitioner filed the present application Under Section 151 of the Code of Civil Procedure for clarification and recall of the order afore-stated. The grounds mentioned in the application are that Mr. Rajiv Atma Ram who was appearing for the petitioner in the other connected writ petitions had made a statement in the present case under some mistaken impression. He was not engaged by the petitioner to argue the present petition and was, therefore, not authorised to make a statement in the present case. Mr. Rajiv Atma Ram had also appeared in this application and had expressed his regret for making the statement that this case is fully covered by the judgment in the case of Parmanand and Ors. v. The Chairman, Housing Board, Haryana and Ors., C.W.P. No. 1816 of 1984. He has further clarified the position that the statement was made under a mistaken impression and is a bonafide error. The application is supported by affidavits.
3. No reply has been filed to this application. However, even the learned counsel appearing for the Board has not opposed the application limited to the extent that writ petition be heard on merits and appropriate orders be passed by the Court. In this view of the matter I consider it appropriate to recall the order dated 24.4.1996 and would proceed to hear the writ petition on merits.
4. The application is, accordingly, allowed. The writ petition be heard on merits. There shall be no orders as to costs.
CIVIL WRIT PETITION
5. Having allowed the application, I have also heard the learned counsel for the parties on merits of the case. It is conceded by the learned counsel appearing for the petitioner and the respondents that the question with regard to the maintainability of the writ petition limited to the question of costing as well as its quantum is squarely covered by the judgment of this Court in the case of Parmanand and others (supra). Therefore, I have no hesitation in holding that the writ petition in so far as it challenges the costing/increased cost demanded by the Board, in the facts and circumstances of the case and in view of the detailed discussion in that case, there is no merit in the writ petition, as it would neither be maintainable nor cost nor the quantum could be assailed in the present writ petition. Consequently, the prayer of the petitioner in this regard is rejected.
6. Mr. Sarin, learned counsel appearing for the petitioner further submitted that he is mainly pressing for three other reliefs as prayed for in the prayer clause. These prayers were not argued and were not in issue in the cases already decided by this Court.
7. Now I would take up for determination each of the aforestated three prayers raised on behalf of the petitioner.
8. The first prayer is with regard to transfer and handing over of registered documents conveying and transferring the property/flats to the petitioners for which the Board has already charged registration fee and other connected charges. Specific averments in this regard have been made in para 22 of the writ petition and a specific prayer has been made in the writ petition under Clause (vii) of the prayer clause. The facts alleged in this para have not been disputed by the respondents in their written statement. The learned counsel appearing for the Board has further conceded that the registration fee and other individual charges which were charged from the petitioners have already been transferred to HUDA, the paramount title holder of the land in question for executing appropriate documents in favour of the Board. It is only thereafter that the Board can. execute transfer deeds/lease deeds in favour of the petitioners.
9. In view of the above facts, the petitioners are obviously entitled to the relief claimed as there is no dispute to the same by the Board. The counsel appearing for the Board further made a statement that the entire formalities in this regard would be completed within a period of two months from today. As a result of this discussion, the Court has no hesitation in directing the respondent-Board, which in fact is even its obligation that it should hand over the registered documents of transfer/lease-deed to the petitioners within a period of two months from today.
10. The next contention on behalf of the petitioners is that they are entitled to the benefit of the amounts which have been paid by them on account of contingency charges on the total cost calculated by the respondents. These averments have been made in paragraph No. 23 of the writ petition. In reply thereto the respondents have stated that contigency funds have been taken for unforeseen contigencies or eventualities. The receipt of the amount is not disputed. During the course of hearing the learned counsel for the Board has further and fairly stated that the Board shall be giving total adjustment to applicants for amounts received by hoard on this account. In view of the terms and conditions of allotment and more particularly the stand taken before the Court in this petition the petitioners would be entitled to partial relief claimed by them in Clause (10) of the prayer clause. All the amounts paid by , the petitioners on account of contigency charges on the amounts claimed by the Board would be adjusted towards the final payment as all these amounts must be adjusted at the time of or prior to the issuance of the registration deeds of allotment to the allottees. The respondents are granted two months time to effect these adjustments in accordance with the terms and conditions of the allotment.
11. The petitioners are not entitled to any other relief claimed in the writ petition and, as already noticed, for the reasons stated in C.W.P. No. 1816 of 1984. Necessary corollary to this is that the petitioners cannot challenge the extent of contingency charges and rate of some profit claimed by the Board. All other reliefs claimed in the writ petition, out of which only three claims, as indicated above, were pressed by the learned counsel for the petitioners, the petitioners are not entitled to It may be noticed at the cost of repetition that learned counsel for the petitioners had clearly stated that the question of costing of the flats in question is covered by the judgment in Parmanand’s case (supra) and nothing more needs to be said about the same in this writ petition.
12. The learned counsel for the respondent-Board has contended that in view of the judgment in Parmanand’s case and the Chandigarh Housing Board case referred, therein, the petitioners are not entitled to any relief in regard to costing of the flats on the basis of judgment of a learned Single Judge of this Court in the case of Ravinder Rastogi and Ors. v. Housing Board Haryana, C.W.P. No. 381 of 1981, while the learned counsel for the petitioners contended that the benefits which have accrued to the petitioners in the case of Revinder Rastogi should be given to the present petitioners as well.
13. In that writ petition the petitioners were granted the following reliefs :-
“Earlier the price under the built houses was worked out at Rs. 61 per sq. mtr. but on the basis of 11 items it was raised to Rs. 91 per sq. mtr. This addition of 50% in cost of the land is certainly not due to the enhanced compensation awarded by the Courts or the interest payable on the enhanced compensation. Therefore, there was no justification for making change in the price of the different types of houses vide policy decisions dated 12.9.1980. The amount of Rs. 3,16,550.11 showing the increase of compensation awarded by the courts and Rs. 48,005.27 towards the interest had to be added and had to be spread over in 115 acres of acquired land and thus to find out the increased amount payable per Sq. Yd. or per Sq. Mtr., as the case may be, the total price of the area of land covered by the type of houses constructed by the Board had thus to be enhanced to the extent of the aforesaid increase per sq. yds or sq.mtr. as the case may be and no more.
Hence the enhancement of the price is permissible only to the limited extent. Accordingly, a direction is issued to the Board that the calculations to be made in aforesaid manner and information of the proposed enhancement of price be given to each of the petitioners and the total price payable by them would stand increased accordingly.”
14. As is apparent from the relief granted in that writ petition it related to cost of land and the increase was primarily based on the question of compensation awarded by the Courts to the owners. The Court had directed distribution of land cost between the allottees. In the present case firstly no amount has been demanded on account of increase in land cost. The increase is primarily based on the element of increase in cost of construction. Secondly, it has been specifically stated in the written statement that the consent of the petitioners had been taken before the allotment of the houses was made to them in regard to increased cost. Once the petitioners had given consent free of any reservation, they cannot be permitted to turn back and challenge the very consent which formed the basis of allotment of flats to the petitioners.
15. It is also stated in the affidavit that there has been no increase in the cost of construction even after the allotment. In this view of the matter and more particularly the stand taken by the respondent’s counsel, as noticed above, and the reasons recorded in the other writ petition. I have no hesitation in holding that the petitioners are not entitled to this relief. The judgment in Ravinder Rastogi’s case related to a totally different aspect of the matter and has no bearing on the matters in issue in the present writ petitions which relate to cost of construction. This relief is, therefore, declined.
16. For the reasons afore-stated, the writ petition is allowed to the limited extent and petitioners are held entitled to the limited relief in relation to issuance of registration deed/deeds of transfer and adjustment of the contigency charges paid by them towards the final price demanded by the Board in relation to all other reliefs. Accordingly, the writ petition is disposed of. However, there will be no orders as to costs.
