Full Judgment Text
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PETITIONER:
U.P.AVAS EVAM VIKAS PARISHAD & ANR.
Vs.
RESPONDENT:
RAVI KUMAR ANAND & ORS.WITHCIVIL APPEAL NOS.5714-26/95
DATE OF JUDGMENT02/05/1995
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
MANOHAR SUJATA V. (J)
CITATION:
1995 AIR 2076 1995 SCC Supl. (3) 182
1995 SCALE (4)108
ACT:
HEADNOTE:
JUDGMENT:
THE 2ND DAY OF MAY, 1995
Present:
Hon’ble Mr.Justice R.M.Sahai
Hon’ble Mr.Justice Sujata V.Mahohar
Mr.S.B.Sanyal, Sr. Advocate and Mr.P.K.Jain, Advocate with
him for the Appellants.
Mr.Arun Jaitley, Sr.Advocate, Mr.Ranjan Mukherjee, Mr.Rakesh
Prasad and Mr. B.B.Saharya, Advocates for M/s Saharya & Co.
for the respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
U.P. Avas Evam Vikas Parishad & Anr. .....Appellants
Vs.
Ravi Kumar Anand & Ors.
.....Respondents
WITH
[CIVIL APPEAL NOS. 5714-26 OF 1995 (Arising out of SLP (C)
Nos. 10736, 11514, 11528, 11529, 11531, 11530, 11534, 11536,
11535, 12156, 12157, 11532 and 21601 of 1994)].
O R D E R
The short question that arises for consideration in
these appeals filed by the statutory body constituted for
constructing and providing houses is whether the High Court
was justified, in peculiar facts and circumstances of these
cases, to allow review applications and writ petitions filed
by various allottees and direct the appellants to grant
concession of 50% in profit and administrative charges due
to delayed delivery of flats as the High Court in earlier
writ petition had granted such benefit in respect of
interest and penalty.
For proper appreciation of the controversy, few facts
in brief are necessary to be mentioned. In a Scheme known as
’Self Financing Scheme, 1985’ announced sometime in the
month of October/November, 1984 the respondents were
allotted flats in 1986 of different types in different
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income groups. But the possession could not be handed over
as constructions were not complete. When possession was
delivered the appellant demanded extra amount as the price
had escalated in the mean time. It was challenged by the
allottees as the amount demanded was arbitrary and the
constructions too were incomplete. The writ petitions were
decided in February, 1990. The escalation was upheld. But
the demand of interest at 18% was held to be excessive. The
High Court further observed that brochure issued by the
appellant relating to the Scheme empowered the Commissioner
to grant relaxation from various conditions for valid reason
or for the delay due to slackness of the official machinery.
The High Court directed that since delay was caused as the
appellant did not discharge initial responsibility, the
Commissioner may consider granting relaxation in interest
and penalty. The respondents were not satisfied. They
approached this Court by way of Special Leave Petitions. The
petitions were dismissed on 22nd March, 1990. The order
reads as under:-
"The Special Leave Petitions are without
merits and are dismissed. The fate of
these SLPs will not, however, stand in
the way of the petitioners moving the
High Court for clarification of certain
observations in the impugned judgment,
which the petitioners contend are in
their favour and in regard to which we
express no view".
In consequence of the observations in the last part of
the order the respondents approched the High Court by way of
review petitions. Some of the allottees filed writ petitions
as well claiming same benefit as was given by the High Court
in its order dated 7th February, 1990. While these petitions
were pending the appellant held a meeting to consider the
implications of directions issued by the order. The Board
resolved:-
<SLS>
"The proposal has been unanimously
approved by the Parishad after
discussion. It was further decided by
Parishad that this benefit be given to
the allottees who withdraw their case
from the court".
<SLE>
The letter then gives out the concessions which the
Board resolved to grant to allottees. It was as under:-
<SLS>
"1. After the issuance of the
allotment order no interest would be
charged from the allottees within a
period of three months as indicated in
the order dated 22.4.88.
2. After the expiry of three months
simple interest at the tate of 14.5.%
will be realised from allottees as
indicated in the order dated 29th July,
1988. This period shall reckon from the
expiry of three months, but after a
lapse of an year 18% interest penal
interest would be charged from such
allottees.
3. The maintenance charges shall be
reduced to the extent of 50%.
In the end it was added:-
"Under the above decision of
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Parishad the Estate management officer
Indira Nagar/Vikas Nagar, Lucknow and
Kanpur and Raibarielly be informed that
the persons affected be assessed and
requisition be sent with the notice
enclosed. Please take quick action so
that money may be recovered".
<SLE>
This letter was produced before the High Court. Even
though the scope of the review petitions or the writ
petitions was limited, the allottees attempted once again to
raise the issue of escalation. It was rejected. But the High
Court after perusing the letter observed that these benefits
may be extended to every petitioner. It was further held
that since there was no contractual liability about the
administrative and profit charges which wre sought to be
recovered from petitioners the demand was liable to be
reduced by 50%.
The question that arises for consideration is whether
the High Court was justified in extending the benefits of
letter dated 20th/21st July to all those allottees who had
approached the High Court since the Board extended it only
to those who agreed to withdraw their petition. It is not
necessary to decide this larger issue as the allottees could
be precluded from claiming any benefit only if it could be
established that the decision of the Board was brought to
their notice by written intimation and yet they did not
agree to avail of it. The decision of the Board was, it
appears, not communicated to each individual allottee in
writing. The argument of the learned counsel for the Board
that when letter was produced before the High Court it
should be held to be intimation to the allottees does not
impress. The Scheme was a self-financing scheme. The last
part of the letter indicates that some allottees had not
made the payment. Therefore, the authorities were directed
to issue letters after calculating the amount. The decision
was not communicated, therefore, it cannot be argued that
those who did avail of it were not entitled to the
concession. The effect of the resolution and its
implementation was to grant concession to these allottees
who had committed default. That was not fair. If the
Commissioner relaxed the condition in pursuance of the
judgment of the High Court then the benefit of it could not
be denied to those who were more law abiding and deposited
the entire amount demanded by the Board. They could not be
made worse than those who were defaulters. Consequently, all
those allottees who had filed the review petitions or writ
petitions and to whom no intimation was sent shall also be
extended the same concession.
The High Court has further held that on the same partiy
of reasoning as of maintenance, the allottees should be
granted concession of 50 per cent in respect of profit and
overhead charges. Whether in a ’Self Financing Scheme’ the
Parishad was entitled to charge profit and overhead charges
from those persons who had deposited the entire amount but
were not handed over possession and the delay was on part of
the Parishad is a debatable issue on which it is not
necessary to express any opinion in this case as it was not
open to allottees to raise it and the High Court was not
justified in granting the concession as these aspects had
been finally decided and settled in the earlier writ
petitions, SLPs against which had been dismissed by this
Court. The High Court could not have reopened the matter by
way of a review petition when it was not permitted by this
Court and effect of which, if permitted, would be to disturb
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the finality of the earlier decision.
In the result, the appeals are allowed in part, the
order of the High Court allowing the review petition and
directing the Parishad to grant 50% concession on the
administrative charges as well as the profit sought to be
realised is liable to be set aside. The order in respect of
interest and the extension of concession as mentioned in the
letter dated 20/21st July, 1990 to all the allottees subject
to observation made earlier is upheld. The parties shall
bear their own costs.