C M VYAS Vs. M P HOUSING BOARD

JUDGEMENT

(1.) These are 13 appeals. All these 13 appeals are directed against common order of the writ court dated 24th November 2010 in a bunch of writ petitions filed by the allottees of HIG and MIG flats allotted by the Madhya Pradesh Housing Board in "Shrimant Madhavrao Scindia Enclave" Darpan Colony, Gwalior Impugned order of the writ court has been assailed both by the M.P. Housing Board as well as by the allottees.

(2.) Madhya Pradesh Housing Board had constructed 32 HIG and 32 MIG flats in second phase in "Shrimant Madhavrao Scindia Enclave" Darpan Colony, Gwalior. An advertisement was issued by the Housing Board in 2005 for inviting applications from the intended buyers of the flats for their registration for HIG/MIG flats. The tentative cost of HIG flat declared in the broucher was Rs. 10.50 lacs and the tentative cost of the MIG flats declared in the broucher was Rs. 8.50 lacs. It was mentioned in the broucher that the price of the flats declared therein could be enhanced subsequently on the basis of actual cost. M.P. Housing Board vide its letter dt. 11th July 2007 addressed to the allottees informed them that the cost of the flat, for which they were registered was likely to be enhanced by 15-20% and they were asked to give their consent whether they were willing to pay the enhanced cost by 15-20% over and above what was declared in the broucher. The allottees consented to the said enhancement and this is not disputed by the learned Counsel appearing on behalf of the allottees. When the construction of the flats was at advanced state, M.P. Housing Board on 12th August 2008 made a demand of increased cost by increasing the cost of the flats by 20% over and above the price declared in the broucher and this increased demand made from allottees stood paid and this is not disputed by Shri K.N. Gupta, learned senior counsel appearing on behalf of the Housing Board. However, when the construction of the flats in question was completed, the Housing Board made a final demand vide their letter dated 17th July 2009/26th July 2009 from the allottees of HIG and MIG flats and called upon them to make an additional payment of Rs. 3,39,175/ - and Rs. 2,13,219/ - respectively by the allottees of the flats. The allottees were aggrieved by the said additional demand made from them by the Housing Board for which they lodged their protest with the Housing Board and thereafter filed several writ petitions to dispute the additional demand made from them by the Housing Board. It is on these writ petitions of the allottees, the impugned order has been passed by the learned Writ Court. Vide its impugned order, learned Writ Court has struck down the demand made by the Housing Board from the allottees on account of parking fee and land premium. However, the other miscellaneous payments like lease rent, maintenance charges, etc. demanded by the Housing Board from the allottees is kept intact.

(3.) We have gone through the impugned order and have also heard the learned Counsel for the parties. Upon going through the impugned order of the writ court, we find that no reasoning has been given by the writ court except referring to a judgment of the Hon'ble Supreme Court in Nihalchand Lallochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., 2010 AIR(SC) 3607 in support of its conclusion justifying demand on account of miscellaneous charges like lease rent, maintenance charges etc. and in holding demand on account of parking fee and land premium to be illegal. We as appellate court can not scrutinize the correctness of the view taken by the writ court in the impugned judgment unless we know the mind of the writ court as to for what reasons a particular demand was held legal and the other demand was held illegal. Though broad reasons were not required to be given but at least some reasons should have been given in the impugned order as to how the judgment of apex court referred therein applies to the facts of the case in hand. We have also gone through the judgment of the Hon'ble Apex Court in Nihalchand's case referred by the writ court in the impugned order and we find that the said judgment of the Hon'ble apex court in Nihalchand's case is based upon review of the previous precedents on the subject regarding justifiability of the allotting authority to make an additional demand over and above what was declared in the broucher. The court while dealing with the facts of a particular case has to see which particular judgment referred as a precedent in the judgment of the apex court in Nihalchand's case will apply to the facts of the case in hand. Since the writ court has not given any reason in support of its conclusion in the impugned order, we deem it appropriate and expedient to remand the case back to the writ court for passing a fresh order on the basis of law applicable to the facts of the case in hand.