Housing Board Phase III Colony, Residents Welfare Association Vatluru v. The Vice Chairman & Housing Commissioner, of A.P

Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned proceedings Lr.No. 936/VAT- Ph. III/DB/EE-TPG/2005 dated 04-5-2005 issued by the 3nd respondent as illegal, arbitrary and in violation of principles of Natural Justice and consequently direct the Respondents to register the houses in favour of the members of the Association as per the notification and agreement made between the parties forthwith and pass such other order or orders as this Honourable court may deem fit and proper in the interest of justice Counsel for the Petitioners: MR.K.VISWANAT HAM Counsel for the Respondents: MR.D.RANGANAT HA KUMAR T he Court made the following Order: T HE HON'BLE SRI JUST ICE V.V.S.RAO WRIT PET IT ION No.19257 of 2005 ORDER: Housing Board Phase III Colony Residents’ Welfare Association, Vatluru, Eluru, West Godavari District, filed instant writ petition challenging a communication dated

04.05.2005 issued by second respondent informing that it is not possible to reduce and re-fix the final cost of HIG and MIG houses constructed under phase III at Vatluru. The brief fact of the matter is as follows. Pursuant to notification dated 05.08.2001 issued by Andhra Pradesh Housing Board (APHB) proposing to construct independent houses in various districts, the members of petitioner association applied and they were allotted houses. A tentative cost was fixed at Rs.4,50,000/- for HIG house and Rs.3,50,000/- for MIG house. After completion of construction of houses, all the allottees were handed over possession. Sometime in 2004, APHB determined final cost of Rs.5,24,264/- for HIG house and Rs.4,17,068/- for MIG house. As many as twenty allottees challenged said fixation of final cost by filing W.P.No.25038 of 2004, inter alia, contending that when once the cost of house was fixed and was allotted, it cannot be revised upwardly. This Court did not agree with the submission. Said writ petition was dismissed on 20.01.2005 giving liberty to individual allottees to approach APHB for reducing final cost. It appears that pursuant thereto members of petitioner association made request to APHB to reduce final cost. In response thereto impugned order/communication dated 04.05.2005 was issued. The petitioner association contends that the respondents did not consider the representation made by it properly and that fixation of final cost is arbitrary. Second respondent filed a counter-affidavit opposing the writ petition and justifying the fixation of final cost. While dismissing W.P.No.25038 of 2004, this Court observed as under. I am unable to agree with this submission of the petitioners. A reading of the Notification issued by the Board would disclose that the Board has fixed the cost of each of the unit of HIG and MIG tentatively at Rs.4.50 lakhs and 3.50 lakhs, thereby indicating that the cost fixed by the Board is provisional and is subject to change, and further, even though the petitioners contend that even in the intimation letters issued to them, they were informed that the cost of each of the unit of HIG and MIG is Rs.4.50 lakhs and Rs.3.50 lakhs, but there is an escalatory clause in the said intimation letter in clause 7, wherein it is inter alia stated that “t he cost of t he house is t ent at ive, and difference cost of t he house should be paid by t he allot t ee aft er final cost is fixed… ”. The cost of each of the unit of HIG and MIG fixed by the Board being tentative, and is subject to change, and the difference being liable to be paid by the allottee upon fixing of final cost, no exception can be taken to the action of the Board in issuing intimation letters fixing the final cost of each unit of HIG and MIG at Rs.5,24,264/- and Rs.4,17,068/- respectively, which it cannot be doubted, is worked out by experts in the field having regard to the cost of various materials and manpower that was used in the construction of the units. In view of the above when at the time of allotment the allottees were informed that the cost is tentative and it will be fixed finally, no exception can be taken if ultimately final cost is fixed in accordance with the Regulations 23 and 24 of the Andhra Pradesh Housing Board (Allotment, Management and Sale of Middle Income Group Houses) Regulations, 1975. Further as rightly contended by learned standing counsel for APHB a writ petition questioning fixation of final cost would not lie. In Bareilly Development Authority v Ajay Pal Singh it was [1] observed as under. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly installments and giving directions in the writ petitions as prayed for. The ratio as above was approved by a three-Judge Bench of the Supreme Court in Delhi Development Authority v Ahok Kumar Behal . Learned standing counsel also brought to the [2] notice of this Court an unreported judgment of this Court in N.Satyanarayana v. Chairman, APHB , wherein referring to Bareilly Development Authority supra this Court observed as [3] under. The instant writ petition is squarely covered by a decision of the Apex Court in Bareilly Development Aut horit y v Ajay Pal Singh (AIR 1989 SC 1076). In such view of the matter, the relief as prayed for declaring the impugned demand of payment of revised cost made by the first respondent in pursuance of an alleged revision of the cost price by the second respondent cannot be granted. It is stated in categorical terms that it has become just and necessary for the Housing Board to revise the cost and arrive at a final decision in view of the termination of Proceedings subsequent to fixing of the preliminary costs. Even otherwise the relationship between the petitioner and the respondent-Housing Board is purely governed by the agreement entered by and between the parties as held by the Apex Court. This Court in exercise of its judicial review jurisdiction cannot issue a writ enforcing the terms of contract which determines the right and obligation for the parties. Land Acquisition In the result, for the above reasons, the writ petition is misconceived and the same is accordingly dismissed. No costs. _____________ (V.V.S.RAO, J) 24th September, 2008 GHN To 1 The Vice Chairman & Housing Commissioner, of A.P.H.B, Gruhakalpa Complex, M.J. Road, Nampally, Hyderabad. 2 The Executive Engineer (Hg), A.P. Housing Board, Tadepalligudem, West Godavari District. 3 2CD copies Form-NIC-OGS/WP{RLD} [1] AIR 1989 SC 1076 [2] AIR 2002 SC 2940 [3] W.P.No.8923 of 1992 dated 20.06.1997