Tarun Rawat vs State Of Rajasthan
2022 Latest Caselaw 14865 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Spl. Appl. Writ No. 1497/2019

Tarun Rawat S/o Shri Ramcharan Rawat, Aged About 43 Years,
R/o 203, Dadu Marg, Barkat Nagar, Tonk Phatak, Jaipur 302015
(Rajasthan).
                                                                  ----Appellant
                                  Versus
1.    State Of Rajasthan, Through The Chairman, Rajasthan
      Housing Board, Having Its Office At 'awas Bhawan'
      Janpath, Jyoti Nagar, Jaipur-302005 (Raj.).
2.    Resident Engineer, Rajasthan Housing Board, Division-I,
      9/36-37, Mukta Prasad Nagar, Bikaner-334004.
3.    The Chief Wealth Manager, Rajasthan Housing Board,
      'awas     Bhawan'     Janpath,        Jyoti     Nagar,    Jaipur-302005
      (Raj.).
4.    The Assistant Wealth Manager, Division-I, Bikaner-334004
      (Raj.).
5.    Public Information Officer and                Senior Project Engineer,
      Rajasthan Housing Board, Division-I, Bikaner (Rajasthan).
                                                               ----Respondents
                            Connected With
                D.B. Spl. Appl. Writ No. 926/2019
Vijay Kumar Suthar S/o Shri Ganeshlal Suthar, Aged About 47
Years, By Caste Suthar, R/o Kaliji Mandir Ke Pass, Inside
Vishwakarma Gate, Bikaner.
                                                                  ----Appellant
                                  Versus
1.    State Of Rajasthan, Through Its Secretary Department Of
      Urban Development And Housing (Udh), Government Of
      Rajasthan, Jaipur.
2.    Rajasthan Housing Board, Jaipur Aawas Bhawan, Janpath,
      Jyoti Nagar Jaipur Through Its Chairman.
3.    Commissioner, Rajasthan Housing Board, Jaipur Aawas,
      Bhawan, Janpath, Jyoti Nagar, Jaipur.
4.    Aditional Chief Engineer-Ii, Rajasthan Housing Board
      Circle Jodhpur.
5.    Deputy Housing Commissioner, Circle-Bikaner, Rajasthan

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      Housing Board, Sector-4, Mukta Prasad Nagar, Bikaner.
6.    Resident Engineer, Rajasthan Housing Board, Division - I,
      Bikaner, 9/36-37, Mukta Prasad Nagar, Bikaner.
                                                              ----Respondents
               D.B. Spl. Appl. Writ No. 954/2019
Lalit Kumar Aaseri S/o Shri Sanwar Lal, Aged About 43 Years, By
Caste Jeengar, R/o Gersarian Ka Mohalla, Fad Bazar, Bikaner.
                                                                 ----Appellant
                                 Versus
1.    State Of Rajasthan, Through Its Secretary, Department Of
      Urban Development And Housing (Udh), Government Of
      Rajasthan, Jaipur.
2.    Rajasthan Housing Board Jaipur, Aawas Bhawan, Janpath,
      Jyoti Nagar, Jaipur Through Its Chairman.
3.    Commissioner, Rajasthan Housing Board Jaipur Aawas
      Bhawan, Janpath, Jyoti Nagar, Jaipur.
4.    Additional Chief Engineer-Ii, Rajasthan Housing Board
      Circle, Jodhpur.
5.    Deputy Housing Commissioner, Circle Bikaner, Rajasthan
      Housing Board, Sector-4, Mukta Prasad Nagar, Bikaner.
6.    Resident Engineer, Rajasthan Housing Board, Division-I,
      Bikaner 9/36-37, Mukta Prasad Nagar, Bikaner.
                                                              ----Respondents
              D.B. Spl. Appl. Writ No. 1005/2019
Kishan Lal Gehlot S/o Shri Ramchandra Gehlot, Aged About 54
Years, By Caste Gehlot, R/o Jawahar Nagar, E-4, Rangolai, Shiv
Mandir Marg, Bikaner.
                                                                 ----Appellant
                                 Versus
1.    State Of Rajasthan, Through Its Secretary, Department Of
      Urban Development And Housing (Udh), Government Of
      Rajasthan, Jaipur.
2.    Rajasthan Housing Board Jaipur Aawas Bhawan, Janpath,
      Jyoti Nagar Jaipur Through Its Chairman.
3.    Commissioner, Rajasthan Housing Board Jaipur Aawas
      Bhawan , Janpath, Jyoti Nagar Jaipur.
4.    Additional Chief Engineer-Ii, Rajasthan Housing Board
      Circle Jodhpur.

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5.     Deputy Housing Commissioner, Circle- Bikaner, Rajasthan
       Housing Board, Sector-4, Mukta Prasad Nagar, Bikaner.
6.     Resident Engineer, Rajasthan Housing Board, Division-I,
       Bikaner 9/36-37, Mukta Prasad Nagar, Bikaner.
                                                                ----Respondents
               D.B. Spl. Appl. Writ No. 1221/2019
Chandani Devi Spouse/o Shankara Ram, Aged About 59 Years,
By Caste Nayak, R/o 24 Kyd, Khajuwala, Bikaner.
                                                                   ----Appellant
                                   Versus
1.     State Of Rajasthan, Through Its Secretary Department Of
       Urban Development And Housing (Udh), Government Of
       Rajasthan, Jaipur.
2.     Rajasthan Housing Board Jaipur Aawas Bhawan, Janpath,
       Jyoti Nagar Jaipur Through Its Chairman
3.     Commissioner, Rajasthan Housing Board Jaipur Aawas
       Bhawan, Janpath, Jyoti Nagar Jaipur.
4.     Additional Chief Engineer-Ii, Rajasthan Housing Board
       Circle Jodhpur.
5.     Deputy Housing Commissioner, Circle-Bikaner, Rajasthan
       Housing Board, Sector-4, Mukta Prasad Nagar, Bikaner.
6.     Resident Engineer, Rajasthan Housing Board, Division-I,
       Bikaner 9/36-37, Mukta Prasad Nagar, Bikaner.
                                                                ----Respondents


For Appellant(s)         :     Mr. Rajesh Choudhary
For Respondent(s)        :     Mr. Manish Shishodia, Sr. Advocate
                               assisted by Mr. Jaideep Singh



          HON'BLE MR. JUSTICE SANDEEP MEHTA
          HON'BLE MR. JUSTICE KULDEEP MATHUR

                             JUDGMENT

Judgment pronounced on                  :::             19/12/2022

Judgment reserved on                    :::             27/09/2022


BY THE COURT : (PER HON'BLE MEHTA, J.)

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These five intra-court appeals involve common controversy

on facts as well as in law and hence the same are being decided

together by this judgment.

The appellants herein, applied for allotment of duplex houses

in the Mukta Prasad Nagar, Bikaner under the Self Financing

Scheme floated by the respondent Rajasthan Housing Board,

Bikaner under two categories:- (1) the Higher Income Group

('HIG') & (2) the Middle Income Group ('MIG'). All the appellants

herein were successful in the draw of lots and the respondents

issued reservation letters dated 23.10.2013 in favour of the

appellants-writ petitioners requiring them to deposit the total

amount in four equal installments as per the schedules below:-

Allottees : Tarun Rawat, Vijay Kumar Suthar & Kishan Lal Gehlot First Installment Rs.7,94,750/- 22.11.2013 Second Installment Rs.7,94,750/- 22.02.2014 Third Installment Rs.7,94,750/- 22.05.2014 Fourth Installment Rs.7,94,750/- 22.08.2014

Allottees : Lalit Kumar Aaseri and Smt. Chandani Devi First Installment Rs.8,38,875/- 22.11.2013 Second Installment Rs.8,38,875/- 22.02.2014 Third Installment Rs.8,38,875/- 22.05.2014 Fourth Installment Rs.8,38,875/- 22.08.2014

The appellants herein claim to have satisfied the total

demand raised by the respondent Housing Board within the

stipulated time period provided by the Board. However,

construction of the colony could not be completed within the

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stipulated period and the respondent Housing Board, imposed

penalty upon the contractor for the delay in completion of the

project.

The Rajasthan Housing Board, issued allotment letters dated

15.10.2015 to the appellants-writ petitioners as per the schedule

below, under the Rajasthan Housing Board Disposal of Property

Regulations, 1970 whereby, additional demand was raised over

and above the amount already deposited with a stipulation that in

the event of non-deposition of the additional demand within 30

days, the allotment made in favour of the applicant/s would be

cancelled.

Name of applicant                  Addl. demand raised by RHB
Tarun Rawat                        Rs.2109433.00
Vijay Kumar Suthar                 Rs.2058821.00
Lalit Kumar Aseri                  Rs.2079621.00
Kishan Lal Gahlot                  Rs.2005508.00
Smt. Chandani Devi                 Rs.2158727.00

Aggrieved by the unjustified and unreasonable additional

demand raised by the respondent Housing Board, the appellants-

writ petitioners herein and other similarly placed persons, filed

writ petitions to challenge the same before the learned Single

Bench of this Court which were dismissed vide impugned orders

dated 08.05.2019 and 06.05.2019 which are assailed in these

appeals.

     It    is   the    common          stance       of    the       parties      that   the

comprehensive         pleadings       and     the       entire      bulk    of    relevant




                                       (6 of 18)                  [SAW-1497/2019]

documents are available in the file of SBCWP No.13124/2015 :

Om Prakash Jakhar Vs State of Rajasthan & Ors. wherein, no

appeal has been preferred.

For justifying the additional demand, the respondent Housing

Board placed reliance on the escalation clause in the scheme

brochure. The petitioners raised a grievance that the escalation in

cost could not be beyond 10%. However, the said grievance raised

by the petitioners has been repelled with rejection of their Single

Bench writ petitions vide the impugned orders dated 06.05.2019

and 08.05.2019 which are subject matter of these appeals.

Learned counsel Shri Rajesh Choudhary, representing the

appellants-writ petitioners urged that the houses were

constructed under the Self Financing Scheme and even while

making the allotment, the developer i.e., Rajasthan Housing

Board, was well aware about the cost escalation factors and the

same had been accounted for while issuing the scheme brochure

and proposing the estimated cost of project. The subsequent plea

of the respondent Housing Board that the cost escalation was on

account of the increase in land price and incidental developmental

charges would also not, justify the exaggerated escalation in cost

which has been demanded from the appellants. In support of his

contentions, Shri Choudhary placed reliance on the following

judgments:-

1. ABL International Ltd. & Anr. vs Export Credit Guarantee Corporation of India Ltd. & Ors. : (2004) 3 SCC 553

2. Karnataka Industrial Areas Development Board vs. M/s.

Prakash Dal Mill : AIR 2011 SC 1570

(7 of 18) [SAW-1497/2019]

3. Kanpur Development Authority vs. Sheela Devi : AIR 2004 SC 400

4. Indore Development Authority vs. Sadhana Agarwal : 1995 (3) SCC 1

5. Ishwar Das Nassa & Ors. vs. State of Haryana : 2012 (1) WLC (SC) Civil 302

6. Haryana Urban Development Authority vs. Ranjan Dhamina & Anr. : 1997 (9) SCC 372

7. DDA vs. Joint Action Committee Allottee of SFS Flats & Ors. :

(2008) 2 SCC 670

8. Popcorn Entertainment vs. City Industrial Development Corporation : (2007) 9 SCC 590

9. M.P. Hosuing & Infrastructure Development Board Vs. BSS Parihar : AIR 2015 SC 3436

Shri Choudhary heavily relied upon the letter dated

21.07.2016 issued by the respondent Rajasthan Housing Board

which was filed on record in writ petition No.13124/2015 wherein,

the entire gamut of escalation in the project has been explained.

He pointed out that as per this letter, the escalation in the land

cost was 106.36% whereas escalation in construction cost was

15.37%. Shri Choudhary submitted that the land cost had already

been deposited by the petitioners well in advance and thus, the

so-called escalation in land value could not be thrust down upon

the petitioners herein. He submitted that this important

communication having a material bearing on the controversy was

not considered by the learned Single Bench and hence, the

impugned orders have been passed without adverting to relevant

and material facts and thus the same are liable to be set aside.

Shri Manish Shishodia, learned senior counsel, assisted by

Shri Jaideep Singh representing the respondent Housing Board

(8 of 18) [SAW-1497/2019]

vehemently and fervently opposed the submissions advanced by

the appellants' counsel. He urged that many of the original writ

petitioners including Om Prakash Jakhar (Writ Petition

No.13124/2015), have withdrawn their writ petitions by accepting

the refund amount offered by the respondent Board. Some of

them have deposited the enhanced amount demanded by the

Board. He also submitted that when the remaining houses which

fell vacant on account of cancellation, were auctioned, they have

fetched much higher price than what was demanded from the

appellants herein including the escalation cost. In support of his

contentions, Shri Shishodia placed reliance on the following

judgments:-

1. Aawasan Mandal Parijat Uch Ayawarg Sangharsh Samiti vs.

Rajashan Hoursing Board & Ors. : (1997) 9 SCC 641

2. Bareilly Development Authority & Anr. vs Ajai Pal Singh &

Ors. : (1989) 2 SCC 116

3. M.P. Housing Board vs Anil Kumar : (2005) 10 SCC 796

4. Bareilly Development Authority vs Vrinda Gujrati & Ors. :

(2204) 4 SCC 606.

We have heard and considered the submissions advanced at

bar and have gone through the material available on record.

A pertinent query was put to Shri Shishodia regarding the

letter/communication dated 21.07.2016 issued by the Board to

which, he candidly conceded that no counter to this letter was

submitted on behalf of the Housing Board before the learned

Single Bench. Irrespective of that, the contention of Shri Shishodia

(9 of 18) [SAW-1497/2019]

was that even the said letter is of no avail to the appellants

because therein also, the cost escalation of more than 100% is

indicated in the land price and thus, the escalated cost demanded

from the appellants is well explained and justified. He further

submitted that the learned Single Judge, has duly and diligently

considered the entire controversy and that, the impugned orders

do not suffer from any infirmity whatsoever and the same deserve

to be affirmed while dismissing the appeals.

The controversy inter se between the parties in these

appeals is in relation to the escalated cost demanded by the

Housing Board from the appellants herein after nearly two years of

the issuance of the allotment letters. It is not disputed that the

appellants herein deposited the scheduled installments of cost as

demanded by the respondent Housing Board while the

construction activity was underway. These installments fully

covered the cost of land acquired for the project. The construction

of the houses in question was under the Self Financing Scheme.

The only justification as offered by the respondent Housing Board

for escalation of cost was indicated in detail in the letter dated

21.07.2016, referred to supra, the contents whereof having

material bearing on the controversy and thus, are reproduced

hereinbelow for the sake of ready-reference:-

"LofoÙk iksf'kr ;kstuk&2012 ds vUrxZr mPp vk; oxZ ¼MwIysDl½ ds 34 ,oa e/;e vk; oxZ&c ds 40 lQy vkosndksa dks vkj{k.k i= fnukad 22-10-2013 ,oa 23-10-2013 dks tkjh fd;sA ftlesa e.My esa izpfyr fu;ekuqlkj cqdysV ykxr ds vuqlkj gh Hkwfe ,oa fodkl nj o'kZ 2012&13 dh yh xbZA o'kZ 2013&2014 dh Hkwfe ,oa fodkl nj fu/kkZj.k ds le; o'kZ 2012&13 esa izko/kkuksa ds vfrfjDr jkf"k :- 32-42 djksM+ dk vfrfjDr izko/kku fd;k x;kA ftlds dkj.k

(10 of 18) [SAW-1497/2019]

Hkwfe ,oa fodkl nj o'kZ 2012&13 dh mPp vk; oxZ esa jkf"k [email protected]& ds LFkku ij [email protected]& rFkk e/;e vk; oxZ&c esa jkf"k :- [email protected]& ds LFkku ij [email protected]& izfr oxZ ehVj gks xbZA ftldk eq[; dkj.k lEiw.kZ lsDVj 1 ls 17 eqDrk izlkn uxj esa lhoj ykbZu] lM+ds ,oa uxj fuxe gLrkUrj.k ds le; nh tkus okyh vuqekfur jkf"k ds [kpksZa dks "kkfey fd;s tkus ds dkj.k gqbZA pwafd ml le; e.My ds ikl dsoy foØ; ;ksX; dqy Hkwfe 88775-00 oxZehVj gh miyC/k FkhA mPp vk; oxZ ¼MwIysDl½ dh dqy dher esa Hkwfe ij 106-45 izfr"kr ,oa fuekZ.k ykxr esa 15-87 izfr"kr dh c<+ksrjh gq;h gSA rFkk e/;e vk; oxZ&c ¼MwIysDl½ ds vkoklksa esa dqy dher esa Hkwfe nj ds isVs 106-36 izfr"kr ,oa fuekZ.k ykxr esa 15-37 izfr"kr dh c<+ksrjh gqbZ gS] ftlds ifj.kkeLo:i cqdysV ykxr ,oa okLrfod ykxr esa vUrj vk jgk gSA bl lEcU/k esa ys[k gS fd ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj esa ykxr esa gqbZ c<+ksrjh dks ysdj dqN vkoafV;ksa }kjk okn nk;j fd;s gq;s gSa] tks fd fopkjk/khu gSA ekuuh; U;k;ky; dk fu.kZ; vkus ij vfxze dk;Zokgh fd;k tkuk lEHko gksxkA "

This is an admitted document issued by the Board and there

was no denial of its contents before the learned Single Bench. The

learned Single Bench, while dismissing the writ petitions filed by

the petitioners, made a passing reference to this letter but

ultimately came to a conclusion that the respondents were having

power to revise/escalate/enhance the costs which were earlier

envisaged. The petitioners (allottees) were given impression that

the escalation would not be more than 10% but the actual

escalation in cost was far beyond the same and thus, the Board

could not be precluded from demanding the escalated cost. While

dealing with the arguments advanced on behalf of the petitioners,

the learned Single Bench observed as below:-

"57. This Court finds that the total records of the case indicate that though the respondents were having the power to revise/escalate/enhance the costs, which were earlier envisaged, but an impression was given to the petitioners

(11 of 18) [SAW-1497/2019]

that the cost shall not be escalated for more than 10%, whereas the escalation in cost is far beyond the same.

58. The respondent-Board, which operates on no profit basis however, seems to have miscalculated its cost; but once the cost has been incurred, then at this stage of allotment asking the respondent-Board not to take the cost, which has incurred on the scheme, would be extremely unfair.

59. This Court has also carefully seen the precedent law cited by both the parties, finds that the petitioners could not establish any such glaring example, which could demonstrate that the cost escalation was due to the arbitrariness or illegalities committed by the respondent.

60. On examination of the complete records, this Court finds that certain amenities, like sewerage systems, installation of water supply systems, road network, reconstruction of roads, street lights etc. for the complete sector, which were not completely envisaged by the respondent-Board, have subsequently, led to such cost escalation.

61. On a careful perusal of the record, this Court also finds that the respondent-Board has shown the details in which they have referred to various heads and various rates, which clearly indicate that the respondent-Board was left with no option, but to escalate the cost. Moreover, the petitioners cannot be said to be prejudiced because the respondent- Board is offering their money back alongwith prevailing interest, and thus, if the petitioners are finding it so unaffordable, then they can certainly get the refund back. However, it is for sure that there would have been a legitimate expectation of the petitioners that the escalation would not be more than 10%, and therefore, the respondent-Board needs to be more careful, while launching such schemes and needs to give a definite escalation clause whenever in future they come up with a policy or scheme, so that the applicants would not suffer at the belated stage, with a beyond expectation higher escalation.

62. Though all the precedent laws are variant on facts, but the precedent law of Mangat Ram Taneja (supra) is quite near

(12 of 18) [SAW-1497/2019]

to the present dispute being adjudicated and it is based upon a Division Bench and the Hon'ble Apex Court judgments.

63. In light of the aforesaid observations, the present writ petitions are dismissed. However, this Court directs the Rajasthan Housing Board to give the exact details of the costs in their scheme brochures in future, and while giving the probable escalation clauses, approximate idea to the applicants regarding the cost escalation hereafter shall also be included in their initial scheme, which would be disclosed to the applicants. Stay applications also stand dismissed accordingly."

On going through the impugned orders, it is manifest that

the contentious letter dated 21.07.2016 on which, the petitioners

heavily relied upon, seems to have escaped consideration of the

learned Single Bench. This letter was the only contemporaneous

communication provided to the petitioners appellants by the

respondent Rajasthan Housing Board towards justification of the

cost escalation. It may be reiterated that the letter dated

21.07.2016 which was filed on record in the case of Om Prakash

Jakhar (supra) was not rebutted by the Board by filing any counter

affidavit etc. even during pendency of these appeals.

The proposition that the Board can escalate the cost of the

land as well as the flat owing to factors beyond its control but

such escalation has to be properly explained. Reference in this

regard may be had to the Supreme Court judgment in the case of

Indore Development Authority vs Sadhana Agarwal & Ors.

reported in (1995) 3 SCC 1 wherein it was observed as below:-

"9. This Court in the case of Bareilly Development Authority v. Ajai Pal Singh, had to deal with a similar

(13 of 18) [SAW-1497/2019]

situation in connection with the Bareily Development Authority which had undertaken construction of dwelling units for people belonging to different income groups styled as Lower Income Group, Middle Income Group, Higher Income Group, and the Economically Weaker Sections. The respondents to the said appeal had registered themselves for allotment of the flats in accordance with the terms and conditions contained in the brochure issued by the Authority.

Subsequently, the respondents of that appeal, received notices from the Authority intimating the revised cost of the houses/flats and the monthly instalment rates which were almost double of the cost and rate of instalments initially stated in the General Information Table. But taking all facts and circumstances into consideration, this Court said that it cannot be held that there was a misstatement or incorrect statement or any fraudulent concealment, in the brochure published by the Authority. It was also said that the respondents cannot be heard to say that the authority had arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents. In that connection, it was pointed out that the most of the respondents had accepted the changed and varied terms. Thereafter they were not justified in seeking any direction from the Court to allot such flats on the original terms and conditions. Recently, the same question has been examined in the case of Delhi Development Authority v. Pushpendra Kumar Jain,. In respect of hike in the price of the flats, it was said:-

"Mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of drawal of lots. The scheme evolved by the appellant does not say so either expressly or by necessary implication. On the contrary, Clause (14) thereof says that "the estimated prices mentioned in the brochure are illustrative and are subject to

(14 of 18) [SAW-1497/2019]

revision/modification depending upon the exigencies of lay out, cost of construction etc."

Although, this Court has from time to time taking the special facts and circumstances of the cases in question has upheld the excess charged by the development authorities, over the cost initially announced as estimated cost, but it should not be understood that this Court has held that such development authorities have absolute right to hike the cost of flats, initially announced as approximate or estimated cost for such flats. It is well known that persons belonging to Middle and Lower Income Groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results into great hardship when the development authorities announce an estimated or approximate cost and deliver the same at twice or thrice of the said amount. The final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements. With the high rate of inflation, escalation of the prices of construction materials and labour charges, if the scheme is not ready within the time frame, then it is not possible to deliver the flats or houses in question at the cost so announced. It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed. In the instant case, the estimated cost for the LIG flat was given out at Rs. 45,000. But by the impugned communication, the appellant informed the respondents that the actual cost of the flat shall be Rs. 1,16,000 i.e. the escalation is more than 100%. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation. We may add that this does not mean that the High Court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High Court has to be satisfied on the

(15 of 18) [SAW-1497/2019]

materials on record that the authority has not acted in an arbitrary or erratic manner."

In this very judgment, Hon'ble Supreme Court also held that

final cost should be proportionate to the estimated cost initially

announced. In case of disproportionate enhancement of cost at

the time of delivery of the flats, the authority obliged to explain to

the satisfaction of Court the reasons.

In case of Ishwar Dass Nassa & Ors. vs State of

Haryana & Ors. reported in 2012 1 WLC 302, the escalation

cost claimed by the Housing Board after ten years was repelled

observing as below:-

"10. A conjoint reading of the allotment letter and clause 2 (w) of the Hire Purchase Tenancy Agreement, which every allottee is required to execute makes it clear that the price of the tenement specified in the allotment letter is tentative and the Board can revise the price after receiving final bills representing the cost of construction or if as a result of an order of the Court or an award made by the Arbitrator it is required to pay higher cost for the land used for construction of the tenements. In either case, the allottee is bound to pay the additional amount which would represent the final price of the tenement. If the cost of land is enhanced for any other similar reason then too the Board can revise the price and ask the allottees to pay additional price. In a given case, the Board may revise the tentative price more than once and the allottees are bound to share the burden of additional cost.

However, in these cases, the Board's power to revise the price of the tenements is hedged with the limitation of 7 years contained in clause 2(w) of the Hire Purchase Tenancy Agreement. That clause contained an express bar against the

(16 of 18) [SAW-1497/2019]

change in price after 7 years of the allotment of tenement. To put it differently, in view of the bar contained in clause 2(w) of the Hire Purchase Tenancy Agreement, the Board could not revise the price after 7 years of the allotment of tenement, irrespective of the justification for such revision. The Board's understanding of the prohibition contained in clause 2 (w) of the Hire Purchase Tenancy Agreement is evinced from Resolution dated 10.5.1989 wherein it was clearly mentioned that enhanced cost is not to be recovered from the allottees after 7 years from the date of allotment. This is also the reason why the Board accorded ex post facto sanction for payment of Rs.53,98,091/- to Improvement Trust, Sonepat.

11. While preparing the format of Hire Purchase Tenancy Agreement, the Board must have taken into consideration various factors which could lead to an increase in the cost of tenements and consciously incorporated a prohibition against change in the price after 7 years from the date of allotment of tenements. The rationale of this embargo was that once the allottee pays the total price, he may not be subjected to the burden of additional cost after a number of years. Surely, adjudication of the landowners' claim for higher compensation is not within the domain of the Board or the allottees but once the Board has, after due deliberations, incorporated a prohibition against change in the price after a period of 7 years from the allotment of tenements, there is no reason why it should not be asked to honour the commitment made to the allottees that they will not live under the fear of being asked to pay additional price after an indefinite period. Unfortunately, the learned Single Judge and the Division Bench of the High Court did not give due weightage to the prohibition contained in Clause 2(w) of the Hire Purchase Tenancy Agreement and negatived the appellants' challenge to the demand of additional price by assuming that the Board is vested with the power to revise the price at any time. The use of the expression `or

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enhancement in cost of land on any account' after the expression `the receipt of the final bill for the construction of tenements or as the result of land award or arbitration proceeding' shows that while framing the regulations, the Board had kept in view all the eventualities which could lead to an increase in the cost of land made available for construction of the tenements and yet it thought proper to put an embargo against the revision of price after 7 years. Therefore, the learned Single Judge and the Division Bench of the High Court were not right in deciding the writ petitions and the writ appeals on the premise that once the cost of land gets increased on account of payment of higher compensation to the landowners the Board is entitled to demand additional price from the allottees."

We are of the firm view that the justification for the cost

escalation was neither properly explained nor this aspect

appropriately appreciated by the learned Single Bench because

the letter dated 21.07.2016 which is a document issued by the

Board and provides relevant information on the escalation factor

was not appositely considered while deciding the writ petitions.

The contention of Shri Shishodia that other similarly placed

persons have either given up their claim for the houses or that

some of them have accepted the escalated cost factor as applied

by the Board cannot act as an estoppel against the petitioners on

prevailing facts and circumstances discussed supra. It is our firm

opinion that the petitioners have a right to raise a grievance

regarding the arbitrary escalation of cost without being prejudiced

by the acceptance of similarly placed persons of the escalated cost

demanded by the Board. We therefore, feel that the learned

(18 of 18) [SAW-1497/2019]

Single Bench was under an obligation to advert to the contents of

the said letter before deciding the writ petitions.

Hence, the impugned orders dated 06.05.2019 & 08.05.2019

are set aside. The letter dated 21.07.2016 shall be taken on

record of all the writ petitions. The respondent Rajasthan Housing

Board would be at liberty to submit its explanation to the contents

of the said letter within a period of three weeks from today. The

writ petitions shall be restored to their original number and shall

be placed before the learned Single Bench for fresh consideration

and decision on merits.

The appeals are allowed in these terms. No order as to costs.

                                   (KULDEEP MATHUR),J                                     (SANDEEP MEHTA),J
                                    Sudhir Asopa/-









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