Ratanlal Vachhani Vs. The Jabalpur Development Authority & Anr.
EmailAppeal: Civil Appeal No. 8017 of 1994
Petitioner: Ratanlal Vachhani
Respondent: The Jabalpur Development Authority & Anr.
Apeal: Civil Appeal No. 8017 of 1994
Judges: D.P. MOHAPATRA, R.P. SETHI & BRIJESH KUMAR, JJ.
Date of Judgment: Mar 07, 2002
Head Note:
CONSTITUTION / URBAN DEVELOPMENT / PRACTICE & PROCEDURE
Constitution
Articles 226, 136 – Purchase of MIG flat of 860 sq.feet for Rs 1,10,000/- – Flat to be ready in 18 months – On demand being raised, amount of Rs 1,10,000/- deposited promptly on 6.4.84 – Flat not ready for delivery till March, 1987 – High Court directing delivery – Later, demand of extra costs for extra area and flooring etc. – High Court, on writ, declining to grant relief and leaving it open to civil court – On appeal to Supreme Court, held that the High Court was not right in refusing the relief. Orders set aside. However, possession of 960 sq. feet was given, extra cost ordered to be calculated and paid.
Held:
The appellant had expressed his desire to purchase the flat on downright payment basis and had fulfilled all the conditions laid down by the JDA for such purchase. He had promptly deposited the entire sum of Rs. 1,10,000/-. In such a case, it was not open to the development authority to make any extra demand, particularly in the absence of a specific condition in the agreement vesting such power in it. (Para 7)
JUDGEMENT:
ORDER
1. Heard Shri S.K. Gambhir, learned senior counsel for the appellant and Shri S.S. Khanduja, learned counsel for the respondents.
2. In pursuance of the advertisement dated 1.9.1982 issued by the Jabalpur Development Authority (for short ‘JDA’), the appellant made an application for purchase of one MIG flat covering 860 sq.ft. at a price of Rs. 1,10,000/-. The flat was to be made ready in 18 months time i.e. by April, 1984. The appellant deposited the entire sum of Rs. 1,10,000/- on 6.4.1984, within three days of receipt of the demand letter dated 3.4.1984 from the JDA. The flat was not ready for delivery till March, 1987, when under the order of the High Court, possession of the flat was delivered to the appellant after he deposited the amount as per the direction of the court.
3. The dispute raised in the case relates to the demand of additional cost by the JDA on the ground that the floor area of the flat was increased and extra expense was incurred due to changes made in flooring, doors and painting, etc. The extra cost, as calculated by the JDA, was Rs. 52,475/- and the appellant was called upon to pay the said amount.
4. On receipt of the demand notice, the appellant filed a writ petition in the High Court praying inter alia a direction to the JDA and its officers not to charge any amount in excess of the sum of Rs. 1,10,000/-, which was originally fixed as the cost of the flat. The High Court by the judgment dated 19.11.1986 declined to grant any relief to the writ petitioner and left it open for him and other purchasers under the scheme, to approach the civil court for appropriate relief. The said judgment is under challenge in this appeal.
5. The thrust of the submissions of Shri S.K. Gambhir, learned senior counsel for the appellant, is that the appellant’s case is one of downright purchase of the property for which he had promptly deposited the entire sum as determined by the JDA, in such a case, it is not open to the respondent to charge any extra sum under the garb of alterations in the plan or change in quality of materials or price escalation etc. The further submission of Mr. Gambhir is that the case of the appellant cannot be equated with purchasers who have opted to pay the consideration money in installments. According to Shri Gambhir, the High Court has failed to maintain the distinction between the two classes of purchasers, and hence the error.
6. Per contra the learned counsel for the JDA contended that the High Court has merely declined to exercise its discretionary jurisdiction under Article 226 of the Constitution, and has left it open to the parties to approach the civil court for appropriate relief. In the circumstances, no interference with the judgment is called for by this Court.
7. On consideration of the facts and circumstances of this case and the submissions made, we are of the view that the High Court was not right in refusing relief to the appellant. The appellant had expressed his desire to purchase the flat on downright payment basis and had fulfilled all the conditions laid down by the JDA for such purchase. He had promptly deposited the entire sum of Rs. 1,10,000/-. In such a case, it was not open to the development authority to make any extra demand, particularly in the absence of a specific condition in the agreement vesting such power in it.
8. But Shri Gambhir fairly accepts the factual position that the flat, possession of which has been delivered to the appellant, measures 946 sq. ft. in place of 860 sq. ft. as originally fixed and the appellant has to pay the cost of the extra floor area calculated at the rate at which the cost of the property was calculated.
9. Therefore, it is ordered that the appellant will pay the cost of the extra floor area at the same rate as fixed for calculating the cost of the property which will be done by respondent no. 1 or any officer competent to deal with the matter and on the calculation being made, the amount will be deducted from the extra amount of Rs.44,000/- stated to have been paid by the appellant in pursuance of the order of the High Court. After making the said adjustment, the balance sum will be refunded to the appellant within a period of one month.
10. The civil appeal is disposed of on the above terms. No costs.
1. Heard Shri S.K. Gambhir, learned senior counsel for the appellant and Shri S.S. Khanduja, learned counsel for the respondents.
2. In pursuance of the advertisement dated 1.9.1982 issued by the Jabalpur Development Authority (for short ‘JDA’), the appellant made an application for purchase of one MIG flat covering 860 sq.ft. at a price of Rs. 1,10,000/-. The flat was to be made ready in 18 months time i.e. by April, 1984. The appellant deposited the entire sum of Rs. 1,10,000/- on 6.4.1984, within three days of receipt of the demand letter dated 3.4.1984 from the JDA. The flat was not ready for delivery till March, 1987, when under the order of the High Court, possession of the flat was delivered to the appellant after he deposited the amount as per the direction of the court.
3. The dispute raised in the case relates to the demand of additional cost by the JDA on the ground that the floor area of the flat was increased and extra expense was incurred due to changes made in flooring, doors and painting, etc. The extra cost, as calculated by the JDA, was Rs. 52,475/- and the appellant was called upon to pay the said amount.
4. On receipt of the demand notice, the appellant filed a writ petition in the High Court praying inter alia a direction to the JDA and its officers not to charge any amount in excess of the sum of Rs. 1,10,000/-, which was originally fixed as the cost of the flat. The High Court by the judgment dated 19.11.1986 declined to grant any relief to the writ petitioner and left it open for him and other purchasers under the scheme, to approach the civil court for appropriate relief. The said judgment is under challenge in this appeal.
5. The thrust of the submissions of Shri S.K. Gambhir, learned senior counsel for the appellant, is that the appellant’s case is one of downright purchase of the property for which he had promptly deposited the entire sum as determined by the JDA, in such a case, it is not open to the respondent to charge any extra sum under the garb of alterations in the plan or change in quality of materials or price escalation etc. The further submission of Mr. Gambhir is that the case of the appellant cannot be equated with purchasers who have opted to pay the consideration money in installments. According to Shri Gambhir, the High Court has failed to maintain the distinction between the two classes of purchasers, and hence the error.
6. Per contra the learned counsel for the JDA contended that the High Court has merely declined to exercise its discretionary jurisdiction under Article 226 of the Constitution, and has left it open to the parties to approach the civil court for appropriate relief. In the circumstances, no interference with the judgment is called for by this Court.
7. On consideration of the facts and circumstances of this case and the submissions made, we are of the view that the High Court was not right in refusing relief to the appellant. The appellant had expressed his desire to purchase the flat on downright payment basis and had fulfilled all the conditions laid down by the JDA for such purchase. He had promptly deposited the entire sum of Rs. 1,10,000/-. In such a case, it was not open to the development authority to make any extra demand, particularly in the absence of a specific condition in the agreement vesting such power in it.
8. But Shri Gambhir fairly accepts the factual position that the flat, possession of which has been delivered to the appellant, measures 946 sq. ft. in place of 860 sq. ft. as originally fixed and the appellant has to pay the cost of the extra floor area calculated at the rate at which the cost of the property was calculated.
9. Therefore, it is ordered that the appellant will pay the cost of the extra floor area at the same rate as fixed for calculating the cost of the property which will be done by respondent no. 1 or any officer competent to deal with the matter and on the calculation being made, the amount will be deducted from the extra amount of Rs.44,000/- stated to have been paid by the appellant in pursuance of the order of the High Court. After making the said adjustment, the balance sum will be refunded to the appellant within a period of one month.
10. The civil appeal is disposed of on the above terms. No costs.
