JUDGMENT
Lokeshwar Singh Panta, J.
1. This writ petition has been filed jointly by eight petitioners seeking to command the respondents by a writ in the nature of rertiorari/ mandamus or such other appropriate writ, order or direction as may be deemed fit, declaring the action of the respondents in enhancing exorbitantly the price of the houses in the Housing Complex, Baddi District Solan, as illegal, arbitrary, mala fide, against the rules or principles of natural justice, violation of Articles 14, 298 and 299 of the Constitution of India and for directing the respondents to charge from the allottees of the house only the original price i.e. Rs. 1,78,000/- as had been advertised for these houses in the advertisement marked as Annexure P-1 and that payments already made by the petitioners may be ordered to be adjusted accordingly. The petitioners then prayed that reasonable house rent at market rate which would have accrued within a reasonable time i.e. within 2-3 years to them be also allowed so that they do not have to suffer for the inefficiency and lethargy of respondent-Board in not completing the construction of the houses within a reasonable time; and that interest on the deemed house rent @ 18% may also be allowed to the petitioners in the interest of justice, equity, fair play and good conscience because they are paying interest twice in making the payment of monthly instalments to the respondent-Board and also the financial institutions from whom they have raised loans to pay off the monthly instalments.
2. The Himachal Pradesh Housing Board (hereinafter referred to as the respondent-Board) invited applications on the prescribed form along with earnest money for provisional registration for allotment of houses in the Hire-Purchase Hosuing Scheme Phase-I at Baddi District Solan, so as to reach the respondent-Board on or before 20-8-1988. The tentative details of houses/plots are given in Annexure P-1. The eligibility of the persons have also been prescribed in the said notification. HIG houses/plots could be allotted to the persons whose monthly income was above Rs. 2500/- and MIG houses/ plots for persons earning monthly income between Rs. 1501/- to Rs. 2500/-. The earnest money was to be deposited either in the Shape of demand draft on any scheduled bank or in cash in the office of the respondent-Board. Some other conditions were also imposed such as that no interest on any deposit shall be admissible at any stage whereas accommodation and costs are tentative and subject to change depending upon site conditions and cost escalation. The procedure of draw of lots to exercise choice and allotment will be as notified by the respondent-Board at the time of draw of lots. The petitioners alleged that in July 1988 in response to the advertisement issued by the respondents-Board, they applied for allotment of MIG houses on the prescribed form along with bank draft of Rs. 10,000/-. First petitioner Er. Rajiv Moudgil was allotted MIG house No. 50 vide letter marked Annexure P-2 dated 31-8-1992 in Housing Colony at Baddi on hire-purchase price of Rs. 2,80,000/-. The petitioner also alleged that on perusal of the allotment letter (Annexure P-Z) it would go to show that as per the schedule contained therein 30% of the amount was to be received by the respondent-Board from the allottees within six months of the allotment of the houses and the possession of the houses was to be delivered on payment of 15% of the cost including earnest money of Rs. 10,000/-. The petitioners have paid 30% of the price as per the schedule and as per the hire-purchase financing scheme all costs including the unforeseen expenditure was taken into account while determining the tentative cost. The petitioner alleged that they were taken by surprise by the respondent-Board when they received a letter dated 31-8-1992 marked Annexure P-Z. thereby arbitrarily increasing exorbitantly the price of the houses from Rs. 1,78,000/- to Rupees 2,80,000/- in some cases, after rescheduling the revised price. The petitioners sent detailed representation to the respondent-Board marked Annexure P-3, asking the respondent-Board to furnish the alleged nature of increase in the covered area, additional items of work, revised design and enhanced cost of land, if any, but till date no reply has been received by them from the respondent-Board. The petitioners have further alleged that the action of the respondent-Board arbitrarily increasing exorbitantly the price of the houses is patently illegal, arbitrary, mala fide, unjustified, unfair and unreasonable and no such increase has been incurred in the construction of the houses and practically neither has there been any increase in the covered areas of the houses nor there has been any additional items of work and also there has not been any enhancement in the cost of the land and the increase of the price of the houses is misleading, mischievous and is made just for covering its own defaults of inordinate delay in the completion of the houses by the respondent-Board. The petitioners have again emphasized that enhancing the price exorbitantly to the tune of as high as 60% is mainly to cover up inordinate delay of the respondent-Board which apparently has occurred due to prolonged/protracted completion of houses at a snail speed inasmuch as more than 4 years were taken and bypassing the burden on the allottees, was clearly and squarely unreasonable, unfair and unjustified. The increase of the price according to the petitioners most of whom belong to services class has burdened them to raise extra loans from different agencies like LIC, HIMFED etc., and in order to stick to a reasonable time schedule most of the petitioners have taken extra loans which has also increased the burden of the petitioners to the tune of Rs. 6,000/- per month. The petitioners alleged that the action of the respondent-Board is not only illegal, arbitrary, mala fide but is also hit by the doctrine of equitable estoppel inasmuch as neither manifold increase was contemplated at the time of declaring the scheme nor the respondent-Board is coming out with clean hands justifying such an exorbitant increase.
3. The petitioners alleged that a delegation of the allottees in the year 1989 had met the Chairman of the respondent-Board and complained to him that the construction of the houses was going on at a snail speed and the delay in construction of the houses might delay the delivery of possession to the allottees and might lead to higher cost of construction. The Chairman had assured the delegation that all efforts were being made to stick to the time schedule and the amount of the enhancement in cost, if at all, would not be more than 5%. But the respondent-Board has arbitrarily enhanced the price exorbitantly to the extent of 60% and declaring the revised payment schedule, it has in fact acted mischievously inasmuch as construction of houses was further delayed. The petitioners again reiterated that the arbitrariness and mala fides on the part of the respondent-Board are writ large for the single reason that the construction of the houses at Baddi (First Phase) was inordinately delayed with the intent to coincide its completion with the commencement of construction of Second Phase houses at Baddi so that the staff deployed for the First Phase may not have to be shifted and putting thereby the allottees of First Phase to much enhanced cost and the completion of the houses was made intentionally at the fag end of August, 1992 and the possession given to the allottees in September/October, 1992. On these premise the present writ petition has been filed by the petitioners seeking the relief noticed above.
4. Reply on behalf of respondent -Board has been filed. The respondent-Board has raised three preliminary objections, namely, that there are concluded contracts between the parties and on the basis of the Hire Purchase Tenancy Agreements executed between the petitioners and the respondent-Board in the year 1992. the petitioners have taken possession of the houses and have also been making payments in terms of the Hire-Purchase Agreements. As such, in view of the the concluded contracts between the parties, the petitioners are estopped from filing this writ petition on account of their acts, deeds and things/conduct and the writ petition as such is not maintainable at this belated stage after the petitioners have taken advantage of taking possession of the houses on the prices finalized by the respondent-Board. The second objection was that the writ petition is not maintainable. The petitioners have entered into contractual agreements with the respondent wherein they have agreed that the cost of the house(s) is tentative and that they would be liable to pay the escalation of the cost in the construction of the houses. The petitioners cannot be allowed to invoke the extraordinary jurisdiction in these proceedings. The maintainability of the writ petition has been challenged on the third ground, namely, that each of the petitioners have a separate and independent cause of action and have entered into separate agreements and taken possession of separate houses, as such, the joint petition is not maintainable.
5. On merits, inviting applications through the advertisement in the press for registration of applicants for allotment of houses under Hire-Purchase Scheme for Phase-I at Baddi during July 1988 and last date for receipt of applications on 20-8-1988 has been admitted. It is slated by the respondent-Board that it was clearly mentioned in the advertisement (Annexure R-1) that the cost mentioned was tentative and it was also mentioned that the area, accommodation and cost arc also tentative and subject to the change depending upon the site conditions and cost escalation. The respondent-Board has stated that according to the conditions of allotment letter issued to first petitioner on 31-7-1992: it has been mentioned therein that 15% of the cost was payable within 30 days from the issue of the alltoment letter, another 15% of the cost was payable within six months of the issue of allotment letter. Therefore, within six months only 30% of the cost was payable by the petitioners and possession of the house were given on receipt of 15% of the cost and after execution of the Hire-Purchase Tenancy Agreement as prescribed. The respondent-Board also stated that the payment schedule was prescribed in the allotment letter strictly in accordance with the provisions of Himachal Pradesh Housing Board Allotment. Management and Sale of Houses/Plots Regulations, 1973 which was supplied to the petitioners along with the application form before making the applications for allotment. The final cost was arrived at after the constructions were completed and the cost was determined on the basis of actual expenditure at site and other expenses connected with the execution of the project. It is further submitted that after the houses were completed and costs were finalized, date for draw of lots to make all the allotments was fixed on 15-6-1992 and each applicant including the petitioners were informed well in advance vide letter dated 29-4-1992 (Annexure R-3) about the date of draw of lots and final costs of the houses. It was made clear in Para-8 of the said letter that in case application is withdrawn before the draw of lots the earnest money will be refunded after deduction of administrative charges of Rs. 200/- only and, therefore, it is incorrect to state that the petitioners were taken by surprise when they received the allotment letter indicating cost of the houses. The respondent-Board stated that some of the petitioners intimated their consent for the inclusion of their names in the draw of lots. It is also submitted that petitioner No. 1 applied for HIG house in the year 1988 and thereafter intimated the respondent-Board vide letter dated Nil received in the office of the respondent on 15-5-1992 that he was not interested in the allotment of house No. 26. He specifically mentioned that he shall pay all the necessary charges as required and after the draw of lots, the petitioner No. 1 could not get house No. 26 according to his choice and therefore, the petitioner No. 1 vide his application dated 15-6-1992 requested for allotment of House No. 50 which was available. He requested that the said house may be allotted to him against 2% extra choice money. House No. 50 was allotted to petitioner No. 1 vide letter dated 31-8-1992 and at that time the petitioner did not agitate the increase in the cost and according to the terms and conditions of the allotment letter he executed Hire Purchase Tenancy Agreement on 19-10-1992, a copy of which is enclosed as Annexure R-6. On execution of the Hire Purchase Tenancy Agreement, possession of the house was offered to petitioner No. 1 on 19-10-1992 and possession was taken by him on 29-10-1992.
6. The respondent-Board have stated that petitioner No. 2 was registered for Second Phase Housing Colony at Baddi as his application was received on 25-6-1991. Normally, the petitioner No. 2 was to be considered for the house under Phase-II but he made a special request that in case the house is available out of Phase-I he should be considered for allotment and his request was considered as a special case being Army Officer as houses were available under Phase-I. House No. 37 was allotted to him on 19-9-1992 and he deposited the requisite amount of 15% cost on 9-10-1992. After execution of the Hire Purchase Tenancy Agreement he was offered possession on 9-10-1992. The respondent-Board has stated that since then petitioner No. 2 has never agitated the increase in the cost and has paid the instalments according to the provisions of the Hire Purchase Tenancy Agreement executed by him with the respondent-Board. It is stated that the petitioner No. 2 applied for HIG house in Baddi in response to advertisement in which tentative cost was mentioned at Rs. 2.50 lacs and the house has been allotted to him within the period of 16 months of his application at a cost of Rs. 2,72,500/- and that the increase of the house is very negligible. In respect of respondent No. 3, it is submitted that this petitioner has been allotted five houses in July 1992. The numbers and categories of the houses and its costs have been stated in sub-para (c) of Para 7 of the reply. Possession of the houses was offered to the petitioner-company after deposit of the requisite amount and execution of Hire Purchase Tenancy Agreement and since then the company has not agitated about the increase of the tentative cost. However, it is denied that the petitioner No. 3 is the owner of MIG House No. 26. With respect to the allotment of house to petitioner No. 4 it is submitted by the respondent-Board that with reference to the letter of the Board dated 29-4-1992 petitioner No. 4 intimated the Board vide his letter dated 1-5-1992 that he was interested in the allotment of House No. 26 and he had also offered to pay 2% extra as choice money if he was allotted the said house. In the draw of lots the petitioner No. 4 did not succeed for house No. 26 according to his choice and in general draw, he was allotted house No. 4 and accordingly allotment letter was issued on 31-8-1992 to him and on receipt of allotment letter the petitioner No. 4 deposited the requisite 15% of the cost on 25-9-1992 and executed Hire Purchase Tenancy Agreement on the same date on the prescribed format. He was offered the possession of the house on 25-9-1992 itself and since then the petitioner No. 4 has never agitated against the increase in the house and has been paying instalments as per the provisions of the Hire Purchase Agreement.
7. In regard to the allotment of the house to petitioner No. 5 the respondent-Board has stated that petitioner No. 5 applied for HIG house vide his application dated 5-6-1990 along with others and he was intimated vide letter dated 29-4-1992 about the details of the cost of the house. In response to the letter of the respondent-Board, the petitioner No. 5 intimated vide letter dated 15-5-1992 that his name may be included in the draw of lots and he did not agitate against the increase in the cost before the draw of lots. As per the result of draw of lots he was allotted HIG house No. 31. The petitioner No. 5 in the first instance after allotment requested for cancellation of the allotment and refund of his earnest money but subsequently vide letter dated 21-9-1992 (Annexure R-8) he intimated that on reconsideration he has decided to take the house and his earlier request may be considered as withdrawn. Thereafter the petitioner No. 5 deposited 15% cost on 22-9-1992 and executed Hire Purchase Tenancy agreement on the same day. He was offered the possession of the house on 22-9-1992 itself and after taking over the possession of the house petitioner No. 5 has so far not agitated the increase in the cost and has been paying instalments according to the provisions of the Hire Purchase Tenancy Agreement. The respondent-Board have stated that so far petitioners Nos. 6 and 7 are concerned, they applied for HIG houses vide their applications dated 6-7-1990/30-6-1990 along with others and they were intimated vide letter dated 29-4-1992 (Annexure R-3) about the details of cost and category of houses. In response to the letter, the petitioner Nos. 6 and 7 vide their letters dated 26-5-1992 and 29-6-1992 (received in the office of the respondent-Board on 28-5-1992 and 30-6-1992) intimated that their names may be included in the draw of lots and they did not agitate against the increase in the cost before draw of lots. As per the result of draw of lots they were allotted HIG House Nos. 46 and 56 respectively. Both petitioners deposited the requisite 15% of the cost on 12-8-1992 and executed Hire Purchase Tenancy Agreement on 23-12-1992. They were offered the possession of the houses on 23-12-1992 itself and thereafter they never agitated against the increase in the cost and has been paying the instalments as per provisions of the Hire Purchase Tenancy Agreement.
8. Petitioner No. 8 is said to have applied for HIG house along with others and he was intimated vide letter dated 29-4-1992 (Annexure R-3) about the details of cost of the houses. In response to the letter of the respondent-Board, petitioner No. 8 intimated that he was interested in the allotment of House No. 65 and he did agitate against the increase in the cost before draw of lots. As per result of draw of lots he was allotted HIG House No. 65 and thereafter he deposited the requisite 15% cost along with choice money on 5-8-1992 and also executed the Hire Purchase Tenancy Agreement on the same day. Since then petitioner No. 8 has never agitated against the increase in the cost and has been paying the instalments as per the provisions of the Hire Purchase Tenancy Agreement.
9. The respondent-Board in its written statement denied having received any representation from any of the petitioners against the increase of the price of the houses. It is submitted that the increase in the cost of the houses is due to increase in the price of construction material, labour and other inputs. It is also stated that the cost mentioned in the advertisement was only tentative and could not be considered as final. The respondent-Board has relied upon Clause 11(3) of the H.P. Housing Board Allotment, Management and Sale of House/ Plots Regulations. 1973 while reiterating its stand about the increase of the cost of the houses. The respondent-Board has stated that it has constructed about 156 houses in phase-I and it is obvious that for constructing those houses time would take place and the houses were completed within the time and there has been no delay in the completion of the houses. It has been stated that in the advertisement inviting applications or in the brochure no period of completion was mentioned as 2-3 years as alleged by the petitioners. The respondent-Board also stated that originally there was no provision for boundary walls around the houses. The boundary wall was planned at the time of construction for proper drainage and protection of the houses and this was also one of the reason for increasing the cost of the houses. The other averments of arbitrariness, mala fide and unfairness etc., alleged by the petitioners are categorically denied by the respondents Board. The respondent-Board has stated that the averments of the petitioners having met the Chairman of the respondents-Board are vague as there is no record with the respondent-Board to show that the petitioners had met the Chairman of the Board or made any complaint in this behalf. The respondent-Board has finally prayed for the dismissal of the writ petition based upon the averments made in its written statement.
10. In the rejoinder, the petitioners meeting with preliminary objections have stated that “so called concluded contracts” are merely one sided contracts in the eye of law inasmuch as in such contracts the petitioners have little or no say in the matter at all because if the petitioners resist would agree to such one sided contracts or agreements, they would go without shelter and be deprived of much needed shelter especially when shelter is one of the three basic necessities of life, recognized as such in the Constitution to be provided to every citizen as far as possible. The petitioners have also stated that the Stale being a Welfare Slate has to fulfil the goals of achieving an egalitarian socioeconomic order in the country through its instrumentalities like the Housing Boards etc. and the instrumentalities of the State have to make earnest efforts towards that goal by providing I he much needed shelter to the citizens of the country who arc poor and cannot afford to provide shelter for themselves on their own in absence of State assistance. The petitioners contended that in this backdrop the “so called concluded contracts” are hardly legal contracts and, therefore, this Court alone through judicial review shall hold such contracts illegal. In support of the contentions, the petitioners have relied upon the judgment of the Delhi High Court in AIR 1991 Delhi 96 and judgment of the Apex Court in AIR 1978 SC 1688 (sic).
11. The petitioners have also alleged that the tentative cost of houses mentioned in the advertisement would merely imply marginal adjustment and in hire-purchase financing scheme all costs including unforeseen expenditure is taken into account while determining the tentative cost. The petitioners have further stated that the respondent-Board have not made out any basis as to how the original cost of Rs. 1,78,000/- of the house had got increased to Rs. 2,85,000/-which is tremendous increase of as much as 70% in the price especially when escalation in price had already been provided for in the Project Scheme itself in the very first instance and in finally arriving at the final cost there should have not been more than 5% increase or decrease in the total cost of the house in such a situation. The petitioners have denied the averments made by the respondents in their reply justifying the increase and reiterated their stand made out in the writ petition.
12. In its surrejoinder, the respondent-has asserted that the tentative cost does not merely imply marginal adjustment as it was only provisional cost based on the estimation as worked out in July, 1988 when the scheme has been advertised where the allotments were made in the year 1992 and it was obvious that there should be increase in the estimated cost made in the year 1988. The respondents-Board have also stated that as per the prevailing conditions in Himachal Pradesh i.e. limited working season, geographic condition and the time needed for development and providing of external services, it will not be fair that the circumstances of the case of some other places are made applicable to the respondent-Board which has got its own peculiar problems. The respondent-Board stated that they did not make any change in the covered area, accommodation, plot area etc., which was within the control of the respondent-Board whereas to restrict the cost in view of the overall cost escalation and the price index was not within the control of the respondents-Board.
13. Mr. R. L. Moudgil learned counsel appearing on behalf of the petitioners and Mr. K. D. Sood learned counsel for the respondent-Board have made their submissions based upon the pleadings of the respective parties in the case. Mr. Moudgil learned counsel has contended that the objections of the respondent-Board about the maintainability of the writ petition on the ground of concluded contracts and contractual agreements on tentative cost is wholly untenable in law because under provisions of Articles 298. 299 and 14 of the Constitution of India all or any action of State or Its Instrumentality or executive authority to enter into or not to enter into any contract with individuals must be governed by rule of law and must be Informed by reason and the contract so entered be tested on the test of Article 14 of the Constitution and that the action of the State and other authorities shall be subject to judicial review under Article 226 of the Constitution. In support of his contention, he relied upon Mahabir Auto Stores v. India Oil Corporation, AIR 1990 SC 1031; Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay (1989) 3 SCC 293 : (AIR 1989 SC 1642); Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537; R. D. Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : (AIR 1979 SC 1628) and Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly. (1986) Lab 1C 1312 : (AIR 1986 SC 1571).
14. In regard to the second preliminary objection of the respondent-Board, the learned counsel contended that all the petitioners are similarly situated having exactly the same interest and, therefore, separate and independent writ petitions were not required to be filed.
15. We have given our thoughtful consideration to these submissions. In the judgments relied upon by the learned counsel about the maintainability of the writ petition, it has been held by the Apex Court that the decision of the State/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution of India on any of the grounds available in public law field. It is further held that there can be malice in law. The decisions proceeded to hold that the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. It is also held that the dichotomy between rights and remedies cannot be obliterated by any strait jacket formula and it has to be examined in each particular case.
16. Applying the ratio of the decision of the Apex Court in the facts and circumstances of the present case, we do not see any arbitrariness, malice in law, unfairness and discrimination in the action of the respondent Board in allotting the houses to the petitioners according to their choice after draw of lots and more especially when it was brought to their notice in the advertisement that the cost of the houses was tentative and after executing the hire purchase tenancy agreements, all the petitioners have accepted the conditions of the agreements Including escalation of the price which is genuinely borne by the respondent-Board in the construction of the houses and the petitioners accepted the conditions of the agreements by making the payments as per such conditions.
17. Per contra, Mr. K. D. Sood, learned counsel for the respondent-Board with equal force and vehemence contended that the writ petitions are not maintainable for the relief sought for and that too for the reasons urged in support thereof as held by this Court in a decision reported in Amba Parshad v. H. P. Nagar Vikas Pradhikaran. (1997) 1 Sim LC 253 and also in view of the principles laid down by the Apex Court which have been also considered by the very Division Bench in the above referred to decision of this Court.
18. As a matter of principle, we are in entire agreement with the learned Judges, who decided the earlier case reported in (1997) 1 Sim LC 253 wherein it was held that accepting the claim of the petitioner, as in this case would in substance amount to this Court countenancing a claim for damages on the ground that the respondent-Board had not completed the houses within the specified time leave alone the fact in this case that there was no such assurance and thereby denying the right of the respondent-Board even to the cost incurred by them in constructing the houses to be delivered to the petitioners. Apart from the fact that such issue cannot be countenanced for consideration or for grant of relief in the proceedings under Article 226 of the Constitution of India, we are also of the view that as the terms and conditions of the allotments subject to which everyone of the petitioners has agreed to accept the allotment and take the houses, the grievance of the petitioners cannot be countenanced and that too in proceedings under Article 226 of the Constitution of India. The ratio of the Division Bench judgment on the first point has been reiterated by the subsequent Division Bench in CWP No. 1259 of 1995 and connected matters decided on 27-10-1998. Since both the learned counsel have opted to argue the case both on projecting such feasibility of case under Article 226 of the Constitution as also their rights on merits as claimed by them in these proceedings, hence we are obliged to consider the contentions on merits also.
19. We arc not inclined to accept the submissions of the learned counsel for the respondent-Board that each of the petitioner shall be directed to file separate writ petitions and the joint petition is not maintainable for the reason that the cause of action accrued to the petitioners are similar and identical and a joint writ petition is entertainable and maintainable.
20. “Mr. R. L. Moudgil, learned counsel for the petitioners on merits made the following submissions challenging the increase of the cost of the houses by the respondent-Board :
(i) That there was no increase in covered area of the completed houses; no increase in area of the plot of the completed houses; no additional work-item provided in Project Report or Outlay Plan: no change in design of the completed houses which were advertised for sale on 31-7-1988; no increase in land prices of the houses; no escalation in prices of construction materials, labour and other services as likely escalation is always provided in each and every Project Report or Outlay Plans in the very first instance; the houses were completed by the respondent-Board using poor construction material and frames, door-leaves and fittings in cupboards, mesh door-leaves, grills in windows, fancy lights, sanitary fittings and that the front and back courtyards were left uneven then originally provided in house (s) plans.
(ii) That the respondent-Board was inefficient, lethargic and caused inordinate delay of over four years taken for completion of the houses and on this ground, the demand of increased prices of the houses shall be quashed. In support of this submission, he has placed reliance on Paradise Printers, Chandigarh v. U.T., Chandigarh, AIR 1981 Punj & Har 30. We have considered the ratio of the judgment of Punjab and Haryana High Court and noticed that the decision is not applicable in the peculiar facts and circumstances of this case. In that case the authorities demanded higher price under the allotment policy revised after about two years and rates of the plots were increased but size of the plots reduced and in such circumstances the action of the authorities was held to be not in conformity with the provisions of Article 14 of the Constitution of India. In the present case no such occasion had arisen to the petitioners to challenge the action of the respondent-Board on this ground.
(iii) That there was deliberate. intentional and wilful avoidable delay on the part of the respondent-Board to complete the houses in the first phase and he contended that all efforts were made by respondent-Board to complete the houses of First Phase to coincide commencement of construction of Second Phase houses so that the staff deployed for First Phase houses may not have to be shifted elsewhere and redeployed for second phase houses.
21. We find no substance in this submission too as there is no material on record to establish that the delay in constructing the first phase houses has caused due to starting of the second phase of the employees of the respondent-Board or the Board itself was interested in delaying the construction of the houses in the First Phase. The submission is very vague and cannot be accepted without corroboration.
22. The learned counsel has made repeated submissions, the substance and conclusion of those submissions are that the respondent-Board has arbitrarily, with mala fide intention and discrimination etc. has increased the price from Rs. 1,78,000/- to 2,80,000/- and the increase of the prices is because of the hostile, inefficient and lethargic attitude of the respondent-Board and, therefore, on these counts the petitioners shall not be burdened with the increased price who are all employees and they cannot afford to pay the escalated price of the house(s) which has been increased to more than 65%. In support of his submissions, he has relied upon the judgments of the Apex Court in Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031); Ramana Dayaram Shetty v. International Airport Authority of India. (1979) 3 SCC 489 : (AIR 1979 SC 1628); Dwarkadas Marfatia v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293 : (AIR 1989 SC 1642); State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269; A. K. Kraipak v. Union of India, AIR 1970 SC 150: Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597; E.P. Royappa v. State of Tamil Nadu. AIR 1974 SC 555; G. B. Mahajan v. Jalgaon Municipal Council, AIR 1991 SC 1153: Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 and H. L. Trehan v. Union of India. AIR 1989 SC 568.
23. We have considered the law laid down by the Apex Court in all these judgments in which the basic principle has been settled by the Apex Court that the action of the State or its instrumentalities was found violative of Article 14 of the Constitution on the basis of arbitrariness or mala fide in law, has been struck down by the Apex Court. The settled position of law has to be seen and applied in the facts and circumstances of each case and in the present case, we find from the material on record that the petitioners have made applications on the prescribed form along with the earnest money for provisional registration of allotment of houses pursuant to advertisement (Annexure P1). In that document categories/tentative plot area, tentative plinth area, tentative cost of the houses, earnest money to be deposited with the application form etc. etc., and period of recovery of the amount of costs have been categorically stipulated. Under eligibility clause, it has been categorically stated that the accommodation and costs of the house are tentative and subject to change depending upon the site condition, cost escalation. The Estate Manager of the respondent-Board on August 31, 1992 wrote a letter marked Annexure P-2 to the first petitioner intimating him that on draw of lots held on 15-6-1992 HIG House No. 50 in Housing Colony at Baddi was allotted to him on hire purchase basis on a sale price of Rs. 2,80,000/- on the terms and conditions annexed with the allotment letter. Under the terms and conditions, Clause 4 reads as under :–
The price of the Tenement mentioned in
the allotment letter is tentative and subject
to the revision at the time of execution of
Hire Purchase Tenancy agreement and the
allottee will be bound by it.”
24. In the terms and conditions, there are as many as 40 stipulations incorporated by the respondent-Board to the knowledge of the petitioners and other eligible persons who were interested for the allotment of the houses in Phase-I. Thereafter the first petitioner entered into Hire Purchase Tenancy Agreement marked Annexure R-6 on 19-10-1992 with respondent Board and accepted the conditions incorporated therein and after execution of the agreement possession of the house was given to the first petitioner which was taken by him on 22-10-1992. All the petitioners have been allotted houses after draw of lots according to their choice and possession of the houses were taken by them after the execution of Hire Purchase Tenancy Agreements on the terms and conditions incorporated in the notice inviting applications for registration of the houses and thereafter on the draw of lots, the petitioners were asked to deposit the requisite amount of 15% cost which they had willingly deposited and thereafter executed Hire purchase Tenancy agreement and thereafter took the possession of the houses on the terms and conditions contained in Hire Purchase Tenancy Agreements and also started paying the instalments. The petitioners have not brought on record nor the counsel could point out during the hearing of the petitions that they had ever made any grievances or complaint about the increase of the price of the houses. In addition to the terms and conditions of the notice inviting applications and the letters of allotment of the houses and also the terms separate of Hire purchase tenancy agreements executed by the petitioners who are all persons of means and status as is borne from the memo of parties, the allotment of the houses are covered by H.P. Housing Board Management and sale of Houses/Plots Regulations, 1973. The relevant Clause 11(3) of the Regulations reads as under :–
“Notwithstanding anything contained in the notice inviting applications if after receipt of final bills for the construction of houses/development of plots on payment of interest on the amounts of loans taken for the construction of such houses or for the development of such plots or for expenditure incurred for supervision, the Board considers it necessary to revise the purchase price already specified in the notice, it may be so and determine the final price payable on allotment and all the allottees in relation to the houses/plots aforesaid shall be bound by such determination and they will pay difference, if any, between the final price so determined and the price paid by them.
Provided that the price of any house/ flat/plot shall not be changed to the disadvantage of the allottee after the execution of the agreement, except where the award of the land, on which houses/plots/flats have been constructed, has been changed. In case of enhancement of award, the allottee will have to bear the additional cost worked-out by the Estate Manager which shall be binding on the allottee.”
In the teeth of this clause, it categorically stipulates that after receipt of the final bills of the construction of the houses the respondent-Board is authorized to revise the purchase price already specified in the notice and the allottees will have to bear the additional costs worked out by the Estate Manager which shall be binding upon the allottees. In the present case, as noticed above, the respondent-Board arrived at the final cost after the construction was completed and the cost was determined on the basis of actual expenditure at site and other expenses connected with the execution of the project. The hike in price of the houses was as submitted by the respondent-Board on the basis of providing boundary wall around the houses, proper drainage and protection of houses, labour charges and cost of material etc. The respondent-Board have constructed about 156 houses in Phase-1 and it is obvious that for constructing those houses reasonable time was taken by the respondent-Board and it cannot be said that the respondent-Board was inefficient, lethargic and there was deliberate or intentional or wilful delay on the part of the respondent-Board completing the construction of the houses. The enhancement of the price of the houses was duly notified to each of the petitioner well in advance and they wilfully accepted the enhanced price and executed the Hire Purchase Tenancy Agreement without making any grievance or complaint and thereafter took the possession of the houses and started making the instalments pursuant to the terms and conditions of the Hire Purchase Tenancy Agreement including the earnest money paid by them at the time of taking of the possession of the houses. The price of the houses at the time of inviting applications was tentative and subject to enhancement. The claim of the petitioners that they have signed the Hire Purchase Tenancy Agreement on dotted lines deserves to be rejected on the ground that all the petitioners are well educated persons holding ranks of Engineer, Major in the Army, Doctor, Section Officers in Central Administrative Tribunal and a Private Limited company who applied for five houses.
25. The learned counsel for the petitioners has relied upon the judgments of the High Courts and Apex Court in P. N. Verma v. Union of India, AIR 1985 Delhi 417, Delhi Development Authority v. Lala Amar Nath Educational and Human Society, AIR 1991 Delhi 96, Paradise Printers, Chandigarh v. Union Territories, Chandigarh, AIR 1981 Punj and Har 30, Chandigarh Administration v. Balbir Singh, (CWP No. 10511/92 decided on 2-6-1993 by the Punjab and Haryana High Court and Haryana Urban Development Authority v. Ranjan Dhamina. AIR 1997 SC 1732 to urge that all the petitions in those cases were allowed by the Courts holding that the allottees be allotted houses at originally advertised price and not on enhanced price.
26. In P. N. Verma’s case (AIR 1985 Delhi 417) (supra), the Division Bench of the Delhi High Court held that the action of the DDA in refixing the prices of the flats on different criteria is liable to be struck down on ground of doctrine of promissory estoppel and the doctrine of arbitrariness as the action of the authority in revising the estimates, otherwise than on the terms of the original contract was found illegal and was liable to be quashed. In the present case the respondent-Board has not revised the estimates, otherwise than on the terms of Hire Purchase Tenancy Agreement and the ratio of the Judgment is of no help to the petitioners.
27. In Delhi Development Authority’s case (AIR 1991 Delhi 96) (supra), the action of the DDAs. revising cost on the basis of market value of the land given to the educational bodies on the basis of no profit no loss was struck down by the Division Bench of the Delhi High Court on ground that “difference in cost of land” is nothing but the cost that the Government might ultimately had to incur by way of acquisition, enhancement of compensation and development and other overhead charges minus the price charged on provisional basis, basis nevertheless remaining the same which existed immediately for earlier years and which was no profit no loss and when such a term was inserted in the allotment letter, the societies paid the price mentioned in the allotment letter, development and other overhead charges does not appeal to learned Judges.
28. In Ashok Kumar Behal v. Union of India, AIR 1994 Delhi 149, the action of the DDA determining Rs. 930 per sqr mtr. from 62 per sqr. mtr. of land rale/land premium after 12 years of allotment of land without notice issued to allotees was held to be arbitrary and reasonable. In the present case, the revision of the price of the houses was notified to each of the petitioner and they accepted the increased price and occupied the houses on the terms and conditions contained in the allotment letters and Hire purchase Tenancy Agreement. Undoubtedly, there was a delay of about four years in constructing the houses and handing over the possession to the petitioners by the respondent-Board, but such a delay cannot be said to be unreasonable intentional and due to lethargic attitude of the respondent-Board or its employees. The delay appears to have been caused due to the topography of the site where the houses were to be constructed and construction of the houses in this part of the State cannot be expedited by the respondent-Board with same speed and energy with which the houses can be got constructed in big cities like Delhi and others. Therefore, delay about four years cannot be said to be inordinate or due to slackness of the respondent-Board. All other decisions referred to hereinabove are of no assistance to the petitioners in the peculiar facts and circumstances of the present case.
29. Reliance placed for the petitioners in the decision in Indore Development Authority v. Sadhana Agarwal (Smt.), (1995) 3 SCC 1 has also no merit. The observations made therein on which strong reliance has been placed that the final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements, has to be understood only as explaining or dealing with the extreme stand taken before Court in that case that the development authorities have absolute right to hike the cost of flats, initially announced, as approximate or estimated cost for such flats. We have considered the observations made in this judgment; even in the very same judgment, it is found specifically stated that with the high rate of inflation, escalation of the prices of construction materials and labour charges, if the scheme is not ready within the time, then it is not possible to deliver the flats or houses in question at the cost so announced. After such observations, as a matter of fact, the escalation in that case which was found to be more than 100% unlike the present cases before us, which is stated by the counsel for the petitioners themselves to be 65% to 70% only was not interfered with. So far these writ petitions are concerned, even according to the contentions raised, it is not the case of the petitioners that any extraneous facts have been taken into account in arriving at the final cost, which is not related to the actual escalated rates of construction though may be due to the delay in completion of the construction of the flats/houses. The plea of promissory estoppel needs reference only to be rejected in this case. The respondent-Board has never agreed or represented to the petitioners that they will finally complete and construct the houses within a particular time or that they could be said to have undertaken to meet any risks flowing out of any such delay in such construction. On the other hand, we find as could be seen from the Clauses and the contents of the notice for inviting applications that at every point of time, they were insisting and reiterated that there is no fixed time schedule within which they have agreed or assured to complete the construction and that the cost, from time to time informed of the houses was to be only tentative and that final cost would be settled only on the basis of the details received from the concerned authorities after the completion of the construction. The submissions of the learned counsel for the petitioners that the escalated cost as determined by the respondent-Board must be held to be unreasonable for the reasons that no details have been given for justifying escalation, has no merit. In every one correspondence commencing from the public advertisement made, as pointed out supra, the respondent-Board has been pointing out and reiterating that the ultimate cost of the houses would be as determined by the Board on the basis of final cost of construction and when such determination has been made by the competent authority, it is not given to the petitioners to challenge the same in these proceedings. The mutual rights of the parties in this case have their source and origin in pure and bilateral contracts and the respondent-Board in determination of their final cost of the construction of houses allotted to the petitioners cannot he said to be exereising any statutory powers to entertain any disputes in this regard in writ proceedings, therefore, in the teeth of the conditions to which every one of the petitioners have subscribed to, by agreeing to abide by the ultimate final decision of the cost of construction as determined by the respondent-Board, it is not given to them to turn around and contest the determination made by the administrative authorities on the basis of the final cost of construction reports.
30. In Delhi Development Authority v. Pushpendra Kumar Jain, 1994 Supp (3) SCC 494 : (AIR 1995 SC 1), the Apex Court in para 8 of the report, held as under :
Sinee DDA is a public authority and because the number of applicants are always more than the number of flats available, the system of drawing of lots is being resorted to with a view to identify the allottee. It is only a mode, a method, a process to identify the allottee, i.e., it is a process of selection. It is not allotment by itself. Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of draw of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, Clause (14) thereof says that “the estimated prices mentioned in the brochure are illustrative and arc subject to revision/modification depending upon the exigencies of layout, cost of construction etc.” Flats were being constructed in a continuous process and lots were being drawn from time to time for a given number of flats ready for allotment, Clause (14) of the scheme has been understood in this context the steady rise in the cost of construction and land. No provision of law also could be brought to our notice in support of the proposition that mere draw of lots vests an indefeasible right in the allottee for allotment at the price obtaining on the date of draw of lots. Since the right to flat arises only on the communication of the letter of allotment, the price or rates prevailing on the date of such communication is applicable unless otherwise provided in the scheme. If in case the respondent is not willing to lake or accept the allotment at such rate, it is always open to him to decline the allotment. There was no fairness in this procedure.
31. In the light of the law laid down by the Apex Court in these judgment, the petitioners have no grievance or complaint to urge that the hike in price of the houses is arbitrary, mala fide, discriminatory and unreasonable ete. etc. The right to house arises only on the communication of the letter of allotment issued to the petitioners and the price or rates prevailing on the date of such communication is applicable in the present case and the petitioners accepted the escalated price of the houses and thereafter deposited the earnest money @ 15% of the increased price and thereafter executed 1 lire Purchase Tenancy Agreements and took the possession of the houses subsequently without making any complaint about the escalated price of the houses.
32. The other judgments, namely, Haryana Urban Development Authority v. Ranjan Dhamina, AIR 1997 SC 1732 and Haryana Urban Development Authority v. Smt. Nalini Aggarwal, AIR 1997 SC 2582 relied upon by the petitioners are not relevant in the present case as these decisions turn to the facts of those cases which are not involved in the present petition.
33. The judgment of the Apex Court in U.P. Avas Evam Vikas Parishad v. Ravi Kumar Anand, AIR 1995 SC 207G is too of no help to the petitioners. In that case the appellant/Parishad demanded extra amount and interest of allotment of houses in self Financing Scheme on account of escalation and the Board granted relief as regards interest to those allottees challenging the demand by writ petition but non-petitioner allottees who had paid entire amount not granted the said relief and on these premises the Apex Court that the said relief cannot be denied to non-petitioner allottees unilater-ally having no notice about the relief granted to the petitioners who had challenged the escalation of price and interest in the writ petition.
34. In view of the above and the repeated reiteration of the stand at every stage by the respondent-Board informing the petitioners in unmistakable terms that the final cost of the houses would be on the basis of the escalated cost of construction finally deter-mined after the completion of the construction, it is futile for the petitioners to either seek to blame the respondent-Board for the delay, if any, in the construction or to deny the right of the respondent-Board to recover the ultimate cost of the construction, as per
the escalated rates on which they have ultimately completed the construction.
35. The entire case of the petitioners is sought to be built up by drawing inspiration from certain judgments of the Apex Court and other High Courts, relying upon certain observations made in the peculiar context of the factual noticed position therein and the terms of the agreements entered in those cases, though such observations cannot be readily applied to the ease on hand. The wide observations made and certain general principles laid down in the judgments of certain other High Courts, on which strong reliance has also been placed by the learned counsel for the petitioners could not merit our concurrence or acceptance, There is nothing in the agreement between parties to construct and deliver the houses within a definitely stipulated period of time or undertaking any responsibility for the delay, if any, in this regard. The execution of a scheme successfully and its completion would depend upon ever so many factors, variable in nature including seasonal changes, over which there could be no effective control by the Authorities of the Housing Board alone. Merely because there is no increase in the plinth area of the building or change in the design of the building alone, it cannot be contended for the petitioners that there cannot be any escalation in the cost or value of the building, on its completion. The original cost announced, indisputably was only a tentative cost and the contract provided for finalization of the cost after taking into account the escalated cost incurred in the acquisition of land, construction and completion of the building also. Though, normally final cost should be proportionate to the estimated cost, initially announced, there is no such universal rule of invariable application and the final cost shall be fixed having regard to the price escalation taking during the period of construction and completion of the buildings before it could be delivered under the Scheme. Though there can be no absolute or arbitrary right for the Board to hike the price at its whim, it is common knowledge and to some extent judicial notice also can be taken of the high rates of inflation all around and the escalation of prices of construction materials and labour charges and if the Scheme could not be made ready within the time frame, which also cannot be said to be a final or an Immutable one in this case, necessarily there is bound to be escalation in the prices of the buildings to be constructed and delivered. In the decision reported in 1995(3) SCC 1. it has been held that no interference is called for even if the escalation is more than 100%, when reasons are disclosed to highlight and justify the same and when there is no mala fides as such or any deliberate motive for the authorities of the Board to do so to the detriment of the allottees/petitioners.
36. So far as the case on hand is concerned, the petitioners neither could make out any promise or commitment by the Board to the petitioners to complete the building within a specified time which can be said to be final, or in respect of a final cost to be only within a limit and from the beginning it was given out by the Board that what was being given and announced from time to time was only an estimated or probable cost only. It is not the case of the petitioners that there was any misstatement or incorrect statement or any fraudulent concealment of any materials by the Board, in this regard. The mere selection for allotment alone was also held not sufficient to entitle a person/ allottee with any legal right to allotment at the price prevailing as on the dale. The parties (sic) specifically appear to have in the agreements provided, in this case the scope for and provisions permitting escalation and enhancement of the cost of the building to be delivered and the parties are governed by the provisions in the contract strictly and it is not given to one party to try to wriggle out of their solemn commitments, using the writ jurisdiction of this Court to avoid their contractual responsibilities. That apart many of the allegations are attempted to be made on the basis of factual claims which are seriously disputed and are of very controversial nature and it is not given to the petitioners to expect this Court either to assume such facts in their favour or make a surmise in this regard to grant relief. Yet another reason which has been urged contending that being a rehabilitation project to help the homeless to get accommodation the Board cannot make any profit, is equally untenable and cannot be countenanced in our hands. Simply because there is an element of profit, the scheme could not be held to be either not in public interest or cease to public purpose oriented one. Though, the profit cannot be in the form of to the extent what a private entrepreneur earns or makes out in a scheme, the element of profit of some marginalized proportion cannot be denied because it is the Housing Board since the Board also undertakes several other schemes or projects to help those who are in dire needs as also to finance its other ameliorative and rehabilitation projects, which serve public interest equally more. In substance, the nature of contentions urged for the petitioners cannot be countenanced even in an ordinary civil suit without specific proof of them and that too in the absence of concrete and substantial materials. For all such reasons also, there are no merits whatsoever in the contentions made on behalf of the petitioners.
37. For all the reasons stated hereinabove, there is no merit in this writ petition. The writ petition shall stand dismissed. Costs on parties.
38. In view of the dismissal of the writ petition, all miscellaneous applications shall also stand disposed of.