ASHA RANI Vs. SHIMLA DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioner had applied for registration as an allottee of an independent house under Second Self Financing Scheme, 1986 floated by the respondent. The Scheme at the relevant time provided that the house will cost Rs. 1,44,000. The petitioner was required to deposit the amount as per Annexure P -2 so as to enable her to participate in the draw and thereafter obtain the house to which she may be held entitled to It appears that the petitioner deposited the amount as per Annexure P -2, though late, and paid interest at the rate of 18% per annum for the period of delay. It further appears that there was some delay in executing the Scheme and consequently the houses could not be constructed as assured. The petitioner was, therefore, given an option on 6 -11 -1991 as per Annexure P -5 either agree to pay actual cost of construction of Rs. 2,56,304 or opt out of the Scheme. The amount deposited by her was promised to be refunded with interest at the rate of 15% per annum. It appears that the petitioner opted to remain in the Scheme and agreed to pay the said amount She, however, wanted a particular house and for that purpose paid 2% of the total cost vide Annexure P -7. Thereafter, the draw of lots was held on 7 -9 -1992 and independent House No. 48 in Row No 1 was allotted to her. After the aforesaid allotment the petitioner was by order dated 25 -10 -1993 Annexure P -9 required to pay a further sum of Rs. 30,780 as additional cost of construction because of increased payment of compensation for the acquired land. It is thereafter that the petitioner approached this Court by filing the present writ petition under Article 226 of the Constitution of India.

(2.) The first submission of the learned Counsel for the petitioner is that since the Scheme originally envisaged a cost of Rs. 1,44,000, further escalations are illegal and unreasonable and hence the respondent be directed by a writ in the nature of mandamus not to demand the same. Reliance has been placed on Smt. Sadhana Agrawal and others v. Indore Development Authority, Indore and another, AIR 1986 MP 88, for the purpose. The aforesaid judgment, no doubt, supports the submission of the learned Counsel but the said judgment cannot be treated as the subsisting law on the subject in view of the decision of the Supreme Court in Delhi Development Authority v. Pushpendra Kumar Jain, JT 1994 (6) SC 292. In this case the Supreme Court has considered more or less a similar situation and has held that mere registration and draw does not give any legal or vested right to the allotment of the flat The escalation has also been held to be justified on the basis of the Scheme and, therefore, it has been held that in case the respondent was not willing to accept the allotment at the new rates, it is open to him to decline to accept the same This judgment, therefore, upholds the right of the authority to charge higher price than the originally estimated because of rise in the price of various commodities and construction material. A perusal of the Scheme (Annexure P -l) would indicate that the price mentioned therein was only tentative and the respondent had reserved the right to increase the same depending on the actual cost of construction, escalation of cost of land, material, labour or any other reason. Under the circumstances, the petitioner cannot be heard to say that escalation of price of the house was illegal or arbitrary in any manner. Indeed, no right is vested in her to get the flat for Rs. 1,44,000 as per Annexure P -2. This letter is not a letter of allotment. The allotment has to precede the draw of lots, which had not been done till then. Under the circumstances, the grievance of the petitioner against escalation of price in general, must be held to be without any legal justification.

(3.) The factual position would, however, change after the offer dated 6 -11 -1991 (Annexure P -5). The perusal of this letter would indicate that the delay in executing the original Scheme for reasons beyond control and the increase in the construction cost had persuaded the respondents to make the offer contained in this letter. This letter offered to give the house to the petitioner for a sum of Rs. 2,56,304 to be paid in the manner mentioned therein. Clause (iv) of this letter clearly indicated that in case the petitioner was not willing to accept the new offer, she has the liberty to withdraw from the Scheme and in that case the amount deposited by her would be refunded with interest at the rate of 15% per annum. The sub mission of the learned Counsel for the petitioner is that this offer was not accepted by the petitioner unconditionally but she accepted the same under protest. If this argument was to be accepted, there would be no justifica tion in law for granting any relief in favour of the petitioner. In that case all subsequent acts based upon this letter would be deemed to be against the acceptance of the petitioner. In such a factual situation the petitioner would neither get benefit of draw of lots held on 7 -7 -1992 nor of allotment letter dated 17 -7 -1992 as per Annexure P -8. This result would naturally flow from the decision of the Supreme Court in Delhi Development Authoritys case. Realising the aforesaid consequence, the learned Counsel for the petitioner gave up his challenge to the offer Annexure P -5 and submitted that thereafter there would be no justification in law for claiming any increase in the price of the house vide Annexure P -9. The submission is supported by the observations of the Supreme Court in Delhi Development Authoritys case (Para 8). The Supreme Court in the aforesaid case has held that merely because a person is registered as an applicant and for that reason participates in the draw, he does not get any right to be allotted the flat at a particular price. According to the Supreme Court "...... 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" (Para 8).