Nitin S/O Rameshchandra Shraogi vs State Of Maha. Thr. Its Secretary, ...
2021 Latest Caselaw 5784 Bom

J-WP-4383-19,CP-65-19                                                           1/22


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO.4383 OF 2019


Nitin s/o Rameshchandra Shraogi
Aged about 42 years,
Occ. Business, R/o Shraogi Niwas,
Saraf Line, Telhara, Dist. Akola                           ... Petitioner

-vs-

1. State of Maharashtra,
   Thr. Its Secretary, Ministry of
   Housing Development, Mantralaya,
   Mumbai 32

2. Maharashtra Housing & Area Development
   Authority, Thr. Executive Engineer,
   Gruh Nirman Bhavan, Bandra, Mumbai

3. Amravati Housing & Area Development
   Board, Thr. Executive Engineer,
   Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

4. Executive Engineer, Amravati Housing
   & Area Development
   Board, Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

5. Estate Manager,
   Amravati Housing & Area Development
   Board, Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

6. Akola Municipal Corporation, Akola,
   Through its Commissioner                                ... Respondents

                                     WITH
                        CONTEMPT PETITION NO.65 OF 2019
                                      IN
                         WRIT PETITION NO.7579 OF 2017

Nitin s/o Rameshchandra Shraogi
Aged about 42 years,



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 J-WP-4383-19,CP-65-19                                                            2/22


Occ. Business, R/o Shraogi Niwas,
Saraf Line, Telhara, Dist. Akola                            ... Petitioner

-vs-

1. State of Maharashtra,
   Thr. Its Secretary, Ministry of
   Housing Development, Mantralaya,
   Mumbai 32

2. Maharashtra Housing & Area Development
   Authority, Gruh Nirman Bhavan,
   Bandra, Mumbai

3. Amravati Housing & Area Development
   Board, Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

4. Collector, Akola,

5. Jaysingh Devisingh Rajput
   presently holding the post of
   Executive Engineer,
   Amravati Housing & Area Development
   Board, Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

6. Atul M. Khode,
   presently holding the post of
   Estate Manager,
   Amravati Housing & Area Development
   Board, Gruh Nirman Bhavan, Maltekdi Road,
   Tope Nagar, Amravati

7. Akola Municipal Corporation, Akola
   Through its Commissioner

8. The Town Planner,
   Akola Municipal Corporation,
   Akola                                                    ... Respondents


Shri R. L. Khapre, Senior Advocate with Shri D. R. Khapre, Advocate for
petitioner.
Ms Tajwar Khan, Assistant Government Pleader for respondent No.1 in
W.P.No.4383/2019 and for respondent Nos.1 and 4 in C.P.No.65/2019.
Shri A. S. Jaiswal, Senior Advocate with Shri H. N. Verma, Advocate for



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 J-WP-4383-19,CP-65-19                                                                 3/22


respondent Nos.2 to 5 in W.P.No.4383/2019 and for respondent Nos.2 and 3
in C.P.No.65/2019.
Dr Anjan De, Advocate with Shri G. Kandhari, Advocate for respondent No.6 in
W.P. No.4383/2019.


CORAM : A. S. CHANDURKAR AND PUSHPA V. GANEDIWALA, JJ.

DATE ON WHICH ARGUMENTS WERE HEARD ON : 11th MARCH, 2021 DATE ON WHICH JUDGMENT WAS PRONOUNCED : 31st MARCH, 2021

Judgment : (Per A. S. Chandurkar, J.)

Since both these proceedings have been directed to be decided

together, the same are taken up for final disposal.

The facts in brief giving rise to Writ Petition No.4383/2019

are that pursuant to an advertisement dated 05/04/2011 issued by the

respondent No.3-Amravati Housing and Area Development Board (for

short, the Amravati Board) through its Executive Engineer inviting

applications from persons interested in purchasing tenements of various

dimensions, the petitioner applied for a residential row-house in the

high-income group. The price of that house was indicated to be

Rs.14,90,000/-. On the petitioner's application dated 28/04/2011 being

favourably considered the petitioner made initial payment to the

respondent No.2. On 01/10/2012 the petitioner was informed by the

respondent No.5-Estate Manager of the Amravati Board that there was an

escalation in the price of the house purchased by the petitioner. The

enhanced price was quoted to be Rs.21,85,000/-. Pursuant thereto the

petitioner on 13/10/2012 forwarded his affidavit/consent form

J-WP-4383-19,CP-65-19 4/22

indicating his willingness to pay the escalated price. It was also stated

that the revised price that would be quoted by the Amravati Board while

taking possession would also be paid by him. By April 2014 the

petitioner had paid an amount of Rs.17,77,800/- towards the said house.

It appears that the petitioner was not satisfied with the quality of

construction undertaken by the Amravati Board respondent and hence on

06/01/2014, 04/12/2014 and 27/08/2015 the petitioner made various

complaints in that regard. The petitioner thereafter approached this

Court seeking redressal of the aforesaid grievances by filing Writ Petition

No.4936/2016. This Court permitted the petitioner to withdraw the said

writ petition with a liberty to make a representation to the Amravati

Board for expeditious completion of the housing project. The petitioner

thereafter made the representation as directed on 06/09/2016. On

09/03/2017 the Chief Officer of the Amravati Board adjudicated the

representation of the petitioner and directed the Executive Engineer of

the Amravati Board to deliver possession of the said house booked by the

petitioner by 31/03/2017. The petitioner was directed to complete all

formalities and the Executive Engineer was also directed to prepare

structural audit of the building.

2. Thereafter on 31/10/2017 the petitioner filed Writ Petition

No.7579/2017 before this Court praying that the Amravati Board be

J-WP-4383-19,CP-65-19 5/22

directed to implement the order dated 09/03/2017 by delivering

possession and conducting the structural audit. During pendency of the

writ petition, on 23/03/2018 a letter was issued by the Executive

Engineer of the Amravati Board stating therein that the work of

construction would be completed within four months. After completion

of the work the Board was to make an application to the Municipal

Corporation, Akola for being issued the Occupancy Certificate. After

receiving the Occupancy Certificate steps for issuing the allotment letter

and delivering possession were to be taken. It was also stated that the

structural audit would also be done. On 02/04/2018 the aforesaid letter

dated 23/03/2018 issued by the Amravati Board was placed before the

Court in the aforesaid writ petition. The statements made in the said

letter were accepted by way of an undertaking and Writ Petition

No.7579/2017 came to be disposed of.

3. Thereafter on 05/11/2018 the Estate Manager of the Amravati

Board issued an offer letter to the Petitioner in which the total cost of the

house allotted to the petitioner was shown as Rs.24,21,082/-. The

petitioner was therefore called upon to pay the balance amount of

Rs.6,48,704/-. Being aggrieved by issuance of this offer letter dated

05/11/2018 the petitioner has challenged the same in Writ Petition

No.4383/2019 contending that having revised the initial price to

J-WP-4383-19,CP-65-19 6/22

Rs.21,85,000/- further escalation was not permissible. The petitioner

also seeks damages from the Amravati Board on account of the delay in

handing over possession. By amending the writ petition the petitioner

has raised a challenge to Resolution dated 15/12/2015 passed by the

Maharashtra Housing and Area Development Authority as being violative

of Clause-22 of the Maharashtra Housing and Area Development (Estate

Managements, Sale, Transfer and Exchange of Tenements) Regulations,

1981 (for short, the 1981 Regulations). It is also prayed that the defects

as indicated in the structural audit be also directed to be removed and

damages at 18% per annum from 04/12/2014 on the amount of

Rs.17,77,800/- paid by the petitioner be awarded till delivery of

possession.

4. In the reply filed on behalf of respondent Nos.2 to 5 an

objection is raised to the maintainability of the writ petition on the

ground that the alleged rights of the petitioner that are claimed to have

been infringed were purely contractual in nature. It is stated that for

various reasons the construction work took some time which resulted in

enhancement in the cost of the said tenements which was done in

accordance with resolution dated 15/12/2015. The tentative sale price

was fixed at Rs.24,21,082/-. All applicants except the petitioner had paid

the amount as demanded and they were allotted their respective

J-WP-4383-19,CP-65-19 7/22

tenements. It is further stated that the various documents executed by

the petitioner indicated the acceptance of the terms and conditions that

were made applicable as well as indicated the readiness of the petitioner

to pay the escalated price. It is thus stated that considering the nature of

reliefs sought in the writ petition the same would require adjudication of

disputed facts and therefore the petitioner should be relegated to

approach the Civil Court. By filing an additional affidavit it has been

stated that the defects pointed out in the structural audit had been

carried out by the Authorities. Allotment letter to various other allottees

who had paid the escalated price are also placed on record. It is thus

stated that the writ petition was not liable to be entertained.

5. Shri R. L. Khapre, learned Senior Advocate for the petitioner

at the outset submitted that no disputed questions on facts are sought to

be raised in the writ petition. Since the action of the Estate Manager in

enhancing the price of the tenements was challenged being illegal and

contrary to Clause-22 of the 1981 Regulations, the prayers made in the

writ petition could be adjudicated. Referring to various provisions of the

Maharashtra Housing and Area Development Act, 1976 (for short, the Act

of 1976) it was submitted that the Boards constituted under Section 18 of

the Act of 1976 were statutory Boards and were "State" within the

meaning of Article 12 of the Constitution of India. It was his contention

J-WP-4383-19,CP-65-19 8/22

that it is only the Amravati Board that had the authority and jurisdiction

under Clause-22 of the 1981 Regulations to increase the price of

tenements. Neither the Authority as defined by Section 2(3) of the Act of

1976 nor the Estate Manager had the authority to revise the price of the

tenements. While increasing the price of tenements the conditions

stipulated in Clause-22 (1) ought to exist and the allottee ought to be

noticed before making any such increase. Referring to the order dated

09/03/2017 passed by the Chief Officer of the Amravati Board it was

submitted that the possession of the tenement ought to have been

delivered by 31/03/2017 but the directions issued were not complied

with. The delay was caused by the Amravati Board in completing the

construction. The revision of price was made thereafter and thus it was

not liable to be accepted. Moreover the Amravati Board did not indicate

the manner in which the escalated price of Rs.24,21,082/- was arrived at.

It was his contention that before enhancing the price, the Amravati Board

ought to have furnished relevant information regarding the necessity of

such enhancement to the petitioner. By submitting that such unilateral

modification in the price of the tenement amounting to novation of the

contract was not permissible, the learned Senior Advocate placed reliance

on the decisions in Delhi Development Authority, N.D. and anr. vs. Joint

Action Committee, Allottee of SFS Flats and ors. AIR 2008 SC 1343, The D.F.O.

South Kheri & Ors. vs. Ram Sanehi Singh AIR 1973 SC 205, K. Channappa &

J-WP-4383-19,CP-65-19 9/22

Ors. vs. Union of India and ors. AIR 1991 Karnataka 2018, M. C. Mehta and

Anr. vs. Union of India and ors. AIR 1987 SC 1086 and Indian Explosives Ltd

and Anr. vs. Coal India Ltd and ors. AIR 2018 SC (Supp) 1445 . It was urged

that the escalation clause was required to be read along with Clause-22 of

the 1981 Regulations and the escalation was required to be effected only

in the manner prescribed. It was not permissible for the Amravati Board

to deviate from the established procedure. For said purpose he placed

reliance on the decisions in Zuari Cement Ltd. vs. Regional Director, E.S.I.C.,

Hyderabad and ors. AIR 2015 SC 2764, Smt Nisha Singhal vs. M. P. Housing

Board, Bhopal and ors. AIR 1996 MP 212 . Since it was clear that the

escalation was effected not in the manner prescribed by Clause 22 of the

1981 Regulations the same was bad in law. Moreover, the resolution

dated 15/12/2015 passed by the Authority was also liable to be set aside.

Referring to the decisions in M/s O.C.L. India Ltd Vs. State of Orrissa and

ors. AIR 1987 SC 1086 and State of Rajasthan vs. Mohinuddin Jamal Alvi and

Anr. AIR 2016 SC 2386 it was submitted that the Authority having

delegated the power to increase the price of the tenements to the

Amravati Board, it could not have exercised that power by passing the

impugned resolution He also sought to invoke the public trust doctrine by

relying upon the decision in M. L. Builders vs. Radhyeshyam (1999) 6 SCC

464 and contended that the Amravati Board ought to have acted fairly in

the matter. Reference was also made to the decisions in Mrs Manju Bhatia

J-WP-4383-19,CP-65-19 10/22

& Anr vs. New Delhi Municipal Council and Anr. 1997 AIR SCW 4190, Pullar

Chettiar and ors. vs. The Commissioner Connor Municipality and Anr. AIR 1994

Madras 37, Raman vs. Uttar Haryana Bijli Vitran Nigam and ors. AIR 2015 SC

(Supp) 506 and State of T.N. and anr. vs. P. Krishnamurthy and anr. AIR 2006

SC 1622. It was thus submitted that the prayers made in the writ petition

were liable to be granted.

6. On the other hand Shri A. S. Jaiswal, learned Senior Advocate

for the respondent Nos.2 to 5 opposed the prayers made in the writ

petition. At the outset he submitted that considering the nature of reliefs

sought in the writ petition the same did not deserve to be entertained.

The petitioner was not raising any grievance with regard to infringement

of any right conferred by the Act of 1976 on the petitioner. The rights of

the petitioner merely arose from contractual obligations and the parties

were governed by the offer letter given by the Amravati Board to the

petitioner. In absence of any element of public interest being involved

and the power to escalate the price of the tenement being purely

contractual in nature, there was no exceptional case made out to exercise

writ jurisdiction. For said purpose he placed reliance on the decision in

Joshi Technologies International Inc. vs. Union of India and ors. (2015) SCC

728. Referring to various clauses of the 1981 Regulations it was

submitted that the same indicated that the final price of the tenement

J-WP-4383-19,CP-65-19 11/22

was always made subject to revision. Referring to the initial application

made by the petitioner and thereafter the affidavit/consent letter dated

13/10/2012 submitted by the petitioner, he submitted that the

petitioner had accepted to pay the price that would be applicable on the

date of taking possession of the tenement. Though the petitioner was

issued the allotment letter, there was no concluded contract insofar as its

final price was concerned. Referring to Clause-22 of the 1981

Regulations, it was submitted that the power of the Board to increase the

price of the tenement could be exercised notwithstanding anything

contained in the notice inviting applications or in the agreement

extended by an allottee. It was thus submitted that the Board was

within its competence in passing the Resolution dated 15/12/2015 and

the same was not liable to be set aside. The powers of effecting an

escalation were conferred on the Estate Manager as per provisions of

Clause-3 of the 1981 Regulation. Reference was also made to the

decision in Bihar State Housing Board and ors. vs. Radha Ballabh Health Care

and Research Institute Private Limited (2019) 10 SCC 483 to urge that the

Board had acted within its right in fixing the final price of the tenement.

It was thus submitted that since the action taken by the respondent Nos.2

to 5 was in accordance with law there was no reason to exercise writ

jurisdiction. The petitioner was free to approach the Civil Court for

seeking damages in the facts of the case. He thus sought dismissal of the

J-WP-4383-19,CP-65-19 12/22

writ petition.

7. We have heard the learned counsel for the parties at length

and we have also perused the documents placed on record. The

challenge raised in the writ petition is to the Resolution dated

15/12/2015 passed by the Authority as being without jurisdiction and

violative of Clause-22 of the 1981 Regulations. Further challenge has

been raised to the offer letter dated 05/11/2018 issued by the Amravati

Board demanding an amount of Rs.24,21,082/- as the price of the

tenement offered to the petitioner. An objection had been raised on

behalf of the respondent Nos.2 to 5 that since the dispute raised by the

petitioner arises out of the contract entered into between him and the

Amravati Board, the petitioner could not be permitted to invoke writ

jurisdiction. The forum for seeking such relief would lie before the Civil

Court especially when the petitioner was also claiming damages on

account of the alleged delay in completion of the construction and

handing over possession. On the other hand according to the petitioner

since the Amravati Board constituted under provisions of the Act of 1976

is a statutory Board and while allotting and selling tenements it

discharges a statutory duty being duty bound to act fairly, the petitioner

is justified in approaching this Court in writ jurisdiction for seeking relief.

A challenge has also been raised to the Resolution dated 15/12/2015 on

J-WP-4383-19,CP-65-19 13/22

various grounds and such relief can be granted by this Court. It is urged

that there are no disputed questions that are required to be adjudicated

and on the basis of documentary material available on record such

adjudication could be done.

It is true that one of the challenges raised by the petitioner is

to the offer letter dated 05/11/2018 issued by the Amravati Board calling

upon the petitioner to pay the increased cost of the tenement allotted to

him. One of the grounds urged in that regard is that such enhancement

has been made in a manner contrary to the provisions of the Act of 1976.

There is also a challenge raised to the Resolution dated 15/12/2015

passed by the Authority on the ground that it is without jurisdiction and

violative of Clause-22 of the 1981 Regulations. This Resolution is in the

nature of policy decision taken by the Authority. By said Resolution the

Authority by way of policy had sought to revive the rates applicable on

the amount of interest, establishment expenses, management expenses,

unforeseen matters etc. The rates revised are in two parts, one

applicable to the Mumbai Board and other applicable to all other

remaining Boards except the Mumbai Board. The revision has been made

applicable to all projects where the final sale price has not been fixed. In

the light of the observations made in paragraph 60 of Delhi Development

Authority and the observations made in Indian Explosives Ltd., D.F.O. South

Kheri and ors. and Smt Nisha Singhal (supra) we are inclined to examine

J-WP-4383-19,CP-65-19 14/22

the challenges as raised in the writ petition. This would of course be

subject to the limitations as prescribed in paragraph 69 of the decision in

Joshi Technologies International Inc. (supra).

8. Before considering the challenges as raised a reference to

certain relevant aspects would be necessary. Advertisement dated

05/04/2011 came to be issued by the Amravati Board calling for

applications from persons interested in seeking allotment of tenements of

various sizes in various income groups. As per Clause-7 of that

advertisement it was stated that the price of the tenement indicated in

the advertisement was tentative and a change in the area of the tenement

as well as its final price was possible in future. Such change was

indicated to be binding on an applicant and no grievance in future in that

regard was to be entertained. The petitioner pursuant to the aforesaid

advertisement applied for a tenement in the high income group on

28/04/2011. After complying with the necessary requirements and

depositing the initial amount the petitioner was informed on 01/10/2012

that the price of the tenement that was allotted to him was revised to

Rs.21,85,000/-. Consent of the petitioner was sought in that regard in

writing. The petitioner responded to the same by issuing letter dated

13/10/2012. Alongwith that letter he submitted an affidavit/consent

letter. The petitioner gave his consent to the revision in the cost of the

J-WP-4383-19,CP-65-19 15/22

tenement and indicated his willingness to deposit that amount in the said

consent letter. It was further stated that " While taking possession of the

tenement the proposed revised price of the said tenement would be

acceptable to me and I would not make any complaint in that regard ."

This was followed by another communication dated 03/01/2013 and the

balance payment as indicated at that stage was made. After the

aforesaid revision the Authority passed Resolution dated 15/12/2015

that has been referred to above revising various rates by way of a policy

decision. The policy decision was made applicable to all Boards in the

State. Thereafter on 05/11/2018 an offer letter was issued to the

petitioner indicating the price of the tenement to be Rs.24,21,082/-. This

amount was directed to be paid after which possession was to be handed

over to the petitioner. With the aforesaid factual matrix the challenges

raised by the petitioner can be considered.

9. The principal grievance of the petitioner is that the Amravati

Board having revised the prices of the tenement from Rs.14,90,000/- to

Rs.21,85,000/- in October 2012 a further revision as indicated by the

demand letter dated 05/11/2018 was illegal as it was not in accordance

with Clause-22 of the 1981 Regulations. The 1981 Regulations have

been framed with a view to regulate the sale, transfer and exchange of

tenements by the Authority. The Regulations provide for the manner in

J-WP-4383-19,CP-65-19 16/22

which sale and management of tenements would be undertaken and

payments to be made. The various Boards constituted under provisions

of the Act of 1976 were conferred certain powers by the 1981

Regulations. Under Clause-22 if the Board found that the expenditure

including interest on the amount of loan taken by the Authority and the

expenditure incurred on supervision had increased, the cost of the

tenement notwithstanding anything contained in the notice inviting

applications or in the agreement executed by an allottee could be revised

by the Board. The allottees were bound by such revision and they had

an option of either paying the difference in the price so determined and

the price already paid or they would be entitled to refund of such

difference. According to the learned Senior Advocate for the petitioner

this increase in the price of tenement was without any supporting

material so as to indicate that expenditure including interest on the

amount of loan taken and the expenditure incurred on supervision had

increased so as to warrant revision in the cost of tenement. According to

him the petitioner should have been put on notice prior to making such

increase in the price of the tenement. On the other hand the respondent

Nos.2 to 5 seek to rely upon Resolution dated 15/12/2015 passed by the

Authority revising the rates of expenditure as a policy matter.

J-WP-4383-19,CP-65-19 17/22

10. It is urged that the Resolution dated 15/12/2015 passed by

the Authority was without jurisdiction and violative of Clause-22 of the

1981 Regulations. We are unable to accept this contention. Perusal of

the Resolution dated 15/12/2015 indicates that the Authority in its 264 th

meeting took a policy decision in the matter of revision of rates of

interest applicable to various heads of expenditure such as interest on

capital, establishment charge, unforeseen expenses, emergency expenses,

managerial expenses and the ratio of profit. The revision was divided in

two groups, particular rates being applicable only to the Mumbai Board

and other rates being applicable to all other remaining Boards in the

State of Maharashtra. It is clear that this Resolution is in the nature of a

policy decision taken by the Authority and it is independent of Clause-22

of the 1981 Regulations. The applicability of Clause-22 would arise

when the concerned Board notices any increase in the expenditure that is

to be incurred towards the cost of the tenement warranting revision of

the price of the tenements. This clause would apply to a particular

project depending upon the expenditure incurred. While the Resolution

dated 15/12/2015 prescribes the rates on the basis of which certain

components of the total price of the tenement may be determined,

Clause-22 would apply thereafter by applying the various rates fixed by

the Authority as a matter of policy. We do not find that by passing

Resolution dated 15/12/2015 the Authority in any manner has usurped

J-WP-4383-19,CP-65-19 18/22

the powers of the Amravati Board as conferred by Clause-22 when it

proposed to increase the price of the tenement allotted to the petitioner.

While the policy dated 15/12/2015 had uniform applicability to the

entire State except the Mumbai Board, the power to be exercised under

Clause 22 is by a particular Board after noticing increase in the amount of

expenditure as stated therein. The policy decision taken by the Authority

on 15/12/2015 and the exercise under Clause-22 operate in different

fields and no question of any delegation by the Authority to the Amravati

Board in this regard applies. The ratio of the decisions in M/s O.C.L India

and State of Rajasthan (supra) cannot be applied in the present case. It is

therefore held that Resolution dated 15/12/2015 is neither without

jurisdiction nor is it violative of Clause-22 of the 1981 Regulations. To

put it differently, the Resolution merely indicates the broad parameters

within which and under what heads a revision in the amount of

expenditure is to be made while the revision in the price of the tenements

as indicated by the Amravati Board on 05/11/2018 is specifically made

applicable to the tenements that were the subject matter of advertisement

dated 05/04/2011.

11. Coming to the question as to the justification by the Amravati

Board for increasing the price of the tenements, it is to be noted that the

aspect that the prices indicated in the advertisement dated 05/04/2011

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were tentative which was clearly indicated. The petitioner willingly

participated in the draw of lottery and was successful. He willingly

accepted the revision in the price of the tenement that was conveyed to

him on 01/10/2012. He further gave his consent and also expressed his

willingness to pay any further amount of enhancement in the price of the

tenement. Even the offer letter dated 05/11/2018 does not compel him

to pay the increased price of the tenement in view of the fact that what

has been made to him was an offer as per Clause-17(1) of the 1981

Regulations. This increase in the price of the tenement has been applied

uniformly for all tenements in the high income group and it is informed

by the respondent Nos.2 to 5 that all allottees except the petitioner have

paid the revised increase and have also received possession of their

respective tenements. We therefore do not find anything arbitrary in the

demand for the revised price of the tenement from the petitioner.

Moreover the petitioner is bound by his willingness as indicated in his

affidavit/consent letter dated 13/10/2012. The petitioner never sought

to withdraw his consent at any time after 13/10/2012. The revision

effected after informing about the same to the petitioner while issuing the

allotment letter cannot amount to novation of the contract as urged. The

decisions in Indian Explosives Ltd. and Pullar Chettiar (supra) do not assist

the case of the petitioner.

It is necessary to note that the initial revision of the price of

J-WP-4383-19,CP-65-19 20/22

the tenement from Rs.14,90,000/- to Rs.21,85,000/- was intimated to the

petitioner by the Estate Manager on 01/10/2012. This increase was

accepted by the petitioner without raising any grievance about the

competence of the Estate Manager. Clause-3 of the 1981 Regulations

empowers the Board to act through the Estate Manager. Hence, issuance

of the impugned offer letter dated 05/11/2018 by the Estate Manager

would not mean that such increase has been effected by the Estate

Manager and not the Amravati Board. Said contention of the petitioner

therefore cannot be accepted.

12. Insofar as the prayer made for seeking damages at the rate of

18% per annum from 04/12/2014 till the delivery of possession on the

amount of Rs.17,77,800/- is concerned, we are not inclined to go into

that aspect of the matter. The same would involve resolution of disputed

questions including consideration of the aspect as to whether there was

delay caused by the respondent Nos.2 to 5 in completing the

construction. It is open for the petitioner to seek this relief if so advised

before any appropriate forum.

13. In that view of the matter we do not find any case made out to

exercise writ jurisdiction and grant any relief as prayed for in the writ

petition. Writ Petition No.4383/2019 is accordingly dismissed leaving the

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parties to bear their own costs.

14. Contempt Petition No.65/2019 has been filed by the petitioner

praying that suo motu action be taken against the Executive Engineer as

well as the Estate Manager on account of their failure to complete the

structural audit in terms of the communication dated 23/03/2018 that

was placed on record of Writ Petition No.7579/2017 which

communication was held to be binding on the said parties. The contempt

petition has been filed on 03/01/2019.

15. After notice was issued in the contempt petition, reply has

been filed by the respondent Nos.2 and 3 in the contempt petition. It

has been stated that on 31/08/2018 occupancy certificate was issued by

the Town Planning Office, Akola. It is further stated that an approved

Auditor completed the structural audit of the construction and submitted

a detailed report in that regard to the office of respondent No.2 on

03/01/2019. A copy of said structural audit report is placed on record

along with reply affidavit.

16. In the light of the fact that as indicated in the communication

dated 23/03/2018 an application for issuance of occupancy certificate

was duly made and the occupancy certificate has now been granted

J-WP-4383-19,CP-65-19 22/22

coupled with the fact that the structural audit that was undertaken to be

completed has also been done, we do not find that there is any case of

wilful disobedience of the undertaking given by the Executive Engineer in

the communication dated 23/03/2018. We therefore do not find it

necessary to proceed further in exercise of contempt jurisdiction.

Contempt Petition No.65/2019 accordingly stands dismissed.

JUDGE JUDGE

At this stage Shri R. L. Khapre, learned Senior Advocate for

petitioner submits that without prejudice to the rights of the petitioner to

challenge the present judgment before the Honourable Apex Court or to

avail any other remedy available in law, the petitioner may be permitted

to deposit the balance consideration as demanded.

It is open for the petitioner to deposit the balance consideration

in furtherance of offer letter issued to the petitioner. Such deposit

would be without prejudice to the rights of the petitioner of taking any

further steps referred to above. If the balance consideration is deposited,

the Amravati Board shall take further steps to deliver possession of the

tenement allotted to the petitioner.

                              JUDGE                          JUDGE

Asmita