high court of madhya pradesh principal seat at jabalpur...

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HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT

JABALPUR

W.A. No.1550/2013

M.P. Housing and Infrastructure Development Board

Vs.

Dr. Sudha Jain

W.A. No.1563/2013


Vs.

Dr. A. K. Chaurasia

W.A. No.1565/2013


Vs.

B. S. S. Parihar

*********************************************************

W.A. No. 175/2014


Vs.

Gajanan Kadu

W.A. No.176/2014


Vs.

Smt. Manisha Jain

2

W.A. No. 192/2014


Vs.

Arastoo Jain

W.A. No.174/2014


Vs.

Shaniram Saryam

W.A. No.179/2014


Vs.

Subhash Bobde

W.A. No.178/2014


Vs.

Prabhakar Raut

W.A. No.199/2014


Vs.

Vimla Shrivastava

W.A. No.177/2014

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Vs.

Yogeshwar Dharpure

**************************************************

W.A. No.170/2014


Vs.

Rameshwar Lokhande

W.A. No.103/2014


Vs.

Nilesh Kumbhare

W.A. No.104/2014

The State of Madhya Pradesh

Vs.

Smt. Shikha Gupta

W.A. No.180/2014


Vs.

Aniruddha Thakre

W.A. No.171/2014

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Vs.

Bhaskar Rao Raut

W.A. No.172/2014


Vs.

Govind Raut

W.A. No.134/2014


Vs.

Nirpat Singh Tekre

W.A. No.135/2014


Vs.

R. C. Gupta

W.A. No.136/2014


Vs.

Smt. Pooja Chawla

W.A. No.137/2014


Vs.

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Smt. Sheela Patel

W.A. No.138/2014


Vs.

Smt. Sudha Takre

W.A. No.139/2014


Vs.

Ku. Tripti Gupta

W.A. No.200/2014


Vs.

Manish ChourasiyaW.A. No.197/2014


Vs.

Yogesh Kumar Tiwari

W.A. No.198/2014


Vs.

Shankar Rao Sakhre

W.A. No.196/2014

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Vs.

Dinesh Ghogre

W.A. No.111/2014


Vs.

Lalita Singh

W.A. No.124/2014


Vs.

Barkha Saryam

W.A. No.114/2014


Vs.

Lalita Singh

W.A. No.110/2014


Vs.

Sandeep Kumbhare

W.A. No.112/2014


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Vs.

Sahebrao Nimberkar

W.A. No.115/2014


Vs.

Swapnil Jambolkar

W.A. No.113/2014


Vs.

Bhaskar Rao Raut

W.A. No.125/2014


Vs.

Manoj Kumar Mahore

W.A. No.123/2014


Vs.

Sonali Saryam

W.A. No.121/2014


Vs.

Chandrabhan Jambolkar

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W.A. No.122/2014


Vs.

Mangla Kalbande

********************************************************

W.A. No.206/2014


Vs.

Hukum Chand Jain

W.A. No.203/2014


Vs.

Smt. Laxmi Rani

W.A. No.205/2014


Vs.

Smt. Munni Jain

**********************************************

W.A. No.144/2014

Property Officer

Vs.

Smt. Geeta Soni

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Present: Hon’ble Shri Rajendra Menon, J. &

Hon'ble Shri Alok Verma, J.______________________________________________________

Shri P. K. Kourav, with Shri R. K. Samaiya, Shri Rakesh

Jain, Shri Vivekanand Awasthy, , Shri Himanshu Mishra, Shri

Piyush Dharmadhikari, Shri Rohit Jain and Shri G. P. Dubey

learned counsel for the appellants.

Shri R. N. Singh, learned Senior Counsel with Shri Vijay

Shukla, Shri Hemant Shrivastava, Shri Jaideep Sirpurkar, Shri

A. Mukhopadhyay, Shri A. K. Singh and Shri Deepak

Raghuvanshi for the respondents.

__________________________________________________

O R D E R

(…../7/2014)

Per : Shri Rajendra Menon, J.

By a common order passed on 21.11.2013 the

learned Writ Court disposed of about 43 writ petitions and the

main order was passed in W.P. No.15692/2013 – Dr. Sudha

Jain and others Vs. State of M.P. and others.

2. As the questions of law decided by Writ Court is

identical in nature with slight variation in the facts, all these

writ appeals which have been filed under Section 2(1) of the

Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko

Appeal) Adhiniyam, 2005, are being disposed of by this common

order.

3. Based on the different areas where the disputed

properties are located and based on some difference in facts the

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cases have been bunched together in five different groups.

However, the only question of dispute in all the cases are with

regard to fixation of price for the land based on the Collector

guide lines for a particular year

a. The first bunch consists of the following Writ

Appeals No.1550/2013, W.A. 1563/2013 and W.A. 1565/2013

and they pertain to allotment of Nice Duplex/ Nice Triplex/ Nice

Duplex (Corner ) in Riviera township, Bhopal. The controversy

in this class of category of cases pertains to price fixation of

land with regard to 36 houses which are either Duplex or

Triples as indicated herein above.

b. The second bunch of cases pertains to

allotment of 8 HIG Senior Houses situated in Chhindwara and

the cases in this category are Writ Appeals Nos.175/2014,

W.A.176/2014, W.A. 192/2014, W.A.174/2014, W.A.

No.179/2014, W.A.178/2014, W.A.199/2014 and W.A.

NO.177/2014.

c. The third bunch of cases pertaining to allotment

of 112 houses under a scheme for the Economic Weaker Section,

in the town of Chhindwara and these cases are Writ Appeal Nos.

170/2014, W.A.103/2014, W.A.104/2014, W.A.180/2014,

W.A.171/2014, W.A.172/2014, W.A.134/2014, W.A. 135/2014,

W.A.136/2014, W.A.137/2014, W.A. 138/2014, W.A.139/2014,

W.A.200/2014, W.A. 197/2014, W.A.198/2014, W.A.196/2014,

W.A.111/2014, W.A.124/2014, W.A.114/2014, W.A.110/2014,

W.A.112/2014, W.A.115/2014, W.A.113/2014, W.A.125/2014,

W.A.123/2014, W.A.121/2014 and W.A. No.122/2014.

d. The 4th category of cases pertains to allotment

of 25 HIG Duplex houses in Hari Singh Gaur Nagar, Sagar and

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these cases are Writ Appeal Nos. 206/2014, W.A. No.203/2014

and W.A. No.205/2014.

e. The Fifth and last category is a single case

bearing No. Writ Appeal No.144/2014 pertaining to allotment of

a house in the City of Satna.

4. The question of law considered and decided by the

learned Writ Court which have been called in question in all

these writ appeals pertains to fixation of price for the land and

the principle applied by the appellant Board by basing it on the

Collector guide lines issued for the purpose of assessing market

value of a property under the Stamps Act. The main controversy

that was evaluated and decided by the learned Writ Court

pertains to the method adopted for fixing the price of the land

and linking the cost price of the land with the Collector guide

lines prevailing in the year 20112012. The petitioners in each

of the cases had challenged the pricing policy pertaining to the

land mainly on the ground that linking of price of land and

fixing it in accordance to the Collector guide lines which keep

on changing every year is not correct and it was their contention

before the Writ Court that the pricing of the land should be

based on the price of land prevailing when allotment of the

house as was made to them after draw of lottery. It was there

case that in a process for allotment under the Self Financing

Scheme such a procedure cannot be followed. These assertions

of each of the petitioners having been accepted by the learned

Writ Court and mandamus having been issued to the appellant

Board to fix the price as it existed on the date of issuance of

allotment letter, these appeals have been filed by the Board.

5. In each of the appeals it is the contention of the

Board that pricing has been done in accordance to the scheme,

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the rules and the policy of the Board and the so called allotment

said to have been made in favour of the allottees based on

which the learned Writ Court has decided the controversy is not

the allotment but is only a registration granted to them which is

misconstrued to be a allotment by the learned Writ Court.

6. Having crystallized the controversy as indicated

herein above, we now proceed to narrate certain facts which

may be relevant for deciding these appeals and thereafter to go

into the question of law and disputes of fact, if any, involved in

the matter as certain facts which are different in each of the

cases may be relevant to be taken note of.

7. The main feature in all the cases are that the houses

allotted in each of the cases are based on the self financing

scheme and the appellant Board has formulated its own policy

for the purpose of implementing its scheme for allotment of

houses. Annexure P/4 at page 159 of the paper book is the

scheme for allotment of houses under various schemes of the

Board and the procedure and method for allotment of houses

under the self financing scheme is also indicated therein.

8. As the said scheme is very much relevant for deciding

the controversy involved, it may be appropriate to take note of

the peculiar features of the scheme. It is indicated in Annexure

P/4 that for allotment of houses under the self financing scheme

the prospective applicant has to get himself registered, based

on an advertisement which is issued indicating the features of

the project, the price and other particulars of the houses etc.

The advertisement is to be published in the Newspaper, the

prospective purchaser will have to submit the application for

registration and at the time of registration, he will have to

deposit 10% of the sale price as is notified in the advertisement.

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It is further provided in the scheme that after his application is

accepted for registration, the remaining 90% of the price for the

house and land will have to be given in 4 or 5 installments

during the process of construction or as the Board may decide

and finally if in the end there is any difference in the final sale

price determined after evaluating the actual cost of construction

etc. then the difference will have to be given before possession

is handed over and the transfer affected through a registered

instrument. The scheme provides that the applicant will have

an option to deposit the entire cost price of the house in one

installment at the time of registration and if he does so, he will

be entitled to certain interest at the rate of 8% on the amount so

deposited. It is further indicated that transfer of the house and

land shall be affected only after the transfer deed is executed.

Various eventualities in the matter of recovery of penal interest

at the rate of 16% in case of default in paying the installment

and various other factors are indicated in the scheme. A

provision in the matter of options available to the applicant for

withdrawal is also provided in case they do not agree with the

final price fixation.

9. Thereafter at page 162 it is indicated that

advertisement shall be issued in the Newspaper by the Board

and calling for interested persons to submit their application for

registration. The application along with requisite application fee

shall be submitted within the time stipulated, 10% of the

proposed cost price through challan in the notified bank at the

time of registration. It is indicated that if the number of

applications received is equal to the houses to be allotted, the

houses shall be allotted to the applicants as may be eligible, but

if the number of applications received are more than the

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available houses, the eligible applicants will be selected by

draw of lottery and after intimation to them they may proceed

to deposit the installments as may be fixed. It is indicated in

the Scheme that registration is only provisional. It does not

give them any right and the registered allottees has to make

payment of the actual cost price which may be worked out after

completion of work . It is indicated in page 163 that the entire

amount, as indicated in the advertisement, or as may be

determined will have to be deposited before possession of the

house and its transfer is affected. Certain provisions are made

in the scheme to say that the price fixed in the advertisement

and offered at the time of registration is only provisional and is

liable to be changed as and when the work progresses

depending on the cost escalation. In the scheme it is

stipulated that the Board will make endeavor to ensure that the

final pricing does not increase beyond 10% of the proposed

price as indicated in the advertisement. It is based on these

provisions of the scheme that in all the cases, that the

advertisement were issued and the petitioners submitted their

offers and were granted the so called registration. At this stage

it may be indicated that even though in the order passed by the

learned Writ Court, this is treated to be a allotment but in these

appeals, it is the specific case of the appellant Board that this is

only a registration of the prospective allottee and not a final

allotment. This is one of the controversy involved which we

would advert to at an appropriate stage. We have only

indicated the scheme as answer to the disputed question would

depend on the interpretation and consideration of this scheme.

10. Now we may go into the facts of each category of

cases and indicate them as they appear on record. In the first

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category of cases pertaining to Riviera township, Bhopal it is

seen that the land originally belonged to the Veterinary

Department, Government of Madhya Pradesh. A Memorandum

of understanding was entered into between this department and

the appellant Board and about 13.71 acres of land was

transferred by this memorandum of undertaking to the Board

and the cost for this transfer indicated in this memorandum is

10.95 crores at the rate of Rs.1972/ per sq.m. After taking

possession of this entire land in a phased manner its

development has taken place and apart from the 36 houses in

dispute three other categories of houses have been constructed

in this land. 132 flats have been constructed along with the 36

bungalows and construction of these 132 flats started earlier

and the land for both these projects were developed together

and in fact from the map Annexure P/14 available at page 105

of the paper book it is seen that 36 bungalows are not

constructed separately in one lot, but they are constructed in

three different locations and are in between the 132 flats/

houses. Both these 132 flats/ houses and 36 bungalows (in

dispute) are located in Phase I and entire land for this purpose

has been developed together. According to the respondents/

petitioners the value of land collected from the prospective

purchaser of 132 houses is Rs.6410/ per sq.m. That apart, 146

houses have been constructed which have been allotted to the

Members of Parliament, MLA's etc. and according to the

petitioners this allotment made in March 2007 is at a cost of

Rs.7825/ per sq.m of land. So far as land for the 36 Bungalows

is concerned, documents evidencing these as Annexure P/34

page 148, 152 and 153 of the paper book, show that when the

advertisement was initially issued in the year 2007, the cost of

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the land was shown as Rs.9000/ per sq.m. It was thereafter

increased to Rs.12500/ per sq.m. then to Rs.15000/ per sq.m.

and finally to Rs.30,000/ Sq.m. Be it as it may be, it is the

case of each of the petitioners that originally when the

advertisement was issued and when the offers were called for,

for these 36 houses in November 2007, the cost price of Nice

Duplex as indicated as Rs.40 Lacs, that of Nice Triplex is Rs.45

Lacs and of Nice Duplex Corner at Rs. 53 Lacs and the

construction cost was indicated as Rs.9800/ per sq.m. and the

cost of the land is Rs.12500/ per sq.m. By adding to them

certain supervision charges etc. the total price was fixed. It is

the case of the petitioners that they applied in pursuance to the

advertisement and on 14.12.2007, after drawal of lottery each

of the eligible applicant was communicated on 20 th December

2007 vide Annexure P/9 the fact about their registration for

allotment of a house .

11. According to the petitioners, as they had already deposited

10% of the cost price at the time of registration, they started

depositing the remaining installments in accordance to the

advertisement issued and the demand of the Board made in its

communication dated 20th December, 2007 (Annexure A/9), and it is

the case of each of the petitioners that they have deposited the entire

cost price as indicated in the allotment letter (Annexure A/9) by

December 2009. They say that either in installments or in one

lumpsum payment, the price has been deposited. It is their case that

after they had deposited the amount in the year 2007 and when most

of the amount was deposited, nothing was done for a period of more

than two years, when all of a sudden a communication was received

by each of the allottees on 18.6.2009, by separate letters – Annexure

R/4 available at page 515 of the paper book, to say that the cost price

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as was earlier notified, has increased and it was indicated that the

price which was earlier notified in the advertisement as 53 Lacs has

now increased to 66.17 Lacs for Nice Duplex (Corner); to 43.95 Lacs

from 40 Lacs for Nice Duplex; and, from 45 Lacs to 55.87 Lacs for Nice

Triplex. In this communication, it was indicated that now the cost

price of the land which was originally notified as Rs. 12500/ per

square meter is increased to Rs. 15,000/ per square meter. It is the

case of the allottees that many of them protested and they have

brought on record certain protest letters for example – one of the

allottees Smt. Kavita Kumar in her communication dated 2.7.2009 has

objected to the increase and she says that in pursuance to the

advertisement the entire amount of cost indicated has been deposited

by her i.e.. Rs. 40 Lacs and now without doing anything for more than

two years and without completing the project within a period of 18

months, as indicated in the advertisement, asking for the difference in

the price is not justified. It is seen from the records that each of the

petitioners protested with regard to the exhorbitant increase in the

cost price of the land.

12. Similar is the situation with all other allottees and

available on record are certain objection of most of the allottees,

which goes to show that they had communicated that they had

deposited the entire amount i.e. cost price of the house, either in

installments or in one lumpsum payment, much before this notice

was issued on 18.6.2009. The communication made by the

allottees is available on record from Annexure R/5 onwards.

13. However, it is the case of the Board that even though

some protest was received as indicated hereinabove, most of the

allottees agreed for the increase. Be it as it may be, after the

aforesaid action was taken when the construction was completed

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and the final call was made, each of the petitioners was informed

that apart from increase in the construction cost, now they have

to pay a sum of Rs. 30,000/ per square meter, as cost of the land.

As a consequence thereof, for niceduplex (corner), the cost price

which was initially shown as Rs. 53 Lacs was shown to be 101.02

Lacs. The cost price of a niceduplex ordinary which was

originally show as Rs.40 Lacs was increased to Rs. 73.17 Lacs;

and, that of nice triplex was increased to 79.84 Lacs. The cost of

construction which was originally shown as 9800 per square

meter increased to Rs. 13,000/ per square meter and certain

other charges were also incorporated.

14. A detailed chart indicating the manner in which the

price fluctuation was undertaken by the Board is reproduced by

the learned Single Judge in page 21 of his order, in a tabulated

form, and this goes to show that originally when the

advertisement was issued, the cost of the plot was Rs.12500/ per

square meter in the year 2009, it increased to Rs. 15,000/ per

square meter; and, finally now the claim is for a price of

Rs.30,000/ per square meter. According to the Board, the price

of the land at the rate of Rs. 30,000/ per square meter is fixed on

the basis of the Collector Guidelines issued for the relevant year

201112, and in case of each of the petitioners it is their

contention that this price fixation for the purpose of assessing the

price of land is unsustainable. Applying the formulae laid down in

the Collector Guidelines is not call for. This is an arbitrary and

illegal decision. The petitioners have no objection in paying the

construction cost at the rate of Rs.13000/ per square meter, but

they only object to the recovery of price of the land, on the basis

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of Collector Guidelines. For the same, the following contentions

have been advanced by them:

(a) The cost price of the land is fixed arbitrarily based on

Collector Guidelines even though there is no increase or

expense incurred by the Board in the matter of

development or upkeep of the land. It is stated that when

the land was purchased from the Veterinary Department,

the Board incurred an expense of Rs. 1972 per square

meter and they have fixed the price of the land at Rs.

12,500/ at the time of issuing the advertisement after

proper costing. Thereafter, they have not incurred any

further expenses in the matter of development or change

of the land, therefore, the arbitrary action for fixing such

an exhorbitant price is unsustainable.

(b) It is their contention that the allotment was made to

them when the registration was accepted and thereafter

the Board is precluded of its power to enhance the cost.

15. The second set of cases pertains to 10 Senior HIG

houses and the third set of cases pertains to 112 houses under

the category of Economically Weaker Section (EWS). Both these

schemes pertain to District of Chhindwara and as the

advertisement and procedure followed in both these cases are

identical, they are being dealt with together.

16. The common advertisement was issued with regard to

both these schemes in the local Newspaper on 20 th of May,

2008. In the advertisement it was stipulated that the willing

applicants should submit their application along with the

requisite fees and it was indicated that the eligible applicants/

allotees would be determined on the basis of the draw of lots

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through a lottery system. Each of the aspirants submitted their

applications in the prescribed proforma and paid the requisite

fees for registration. In this advertisement the proposed price

for 10 Senior HIG houses was indicated as Rs.15.67 Lacs and the

price for 112 EWS houses was notified as Rs.2.85 Lacs.

Thereafter in the advertisement it was also stipulated that after

draw of lots is over, the eligible applicant will have to deposit

certain amount (10% of the cost price) as indicated in the

advertisement and it was classified as the registration fee.

17. After the advertisement was issued and as large

number of applications were received, it seems that by draw of

lots the eligible applicants/ allotees were determined and after

determination of eligible applicants a communication was made

to them. In the case of 10 HIG houses the communication was

made to them on 11.1.2009, wherein it was indicated that with

regard to the application submitted for registration it is to

inform the applicant that he has been allotted a house in

Chandangaon, District Chhindwara under the Self Financing

Scheme. The proposed cost of the house is Rs.15.67 Lacs and by

the draw of lots through a lottery system, House No. (actual

house number mentioned) has been allotted. It may be noted

that in this communication it is clearly mentioned that a

particular House is allotted. Thereafter a scheme for payment

of installments is indicated and it is stipulated that the first

installment after deducting the registration fee has to be

deposited on or before 28.2.2010 amounting to Rs.3,52,500/.

The second installment on 31.5.2010 amounting to

Rs.3,52,500/ and a third installment on or before 31.8.2010

amount to Rs.3,52,500/ and the final installment before

handing over of the possession also of Rs.3,52,500/.

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Thereafter in the Note of this communication it was indicated

that the exact cost shall be determined after the construction of

the house is over and in Note 3 it was indicated that the price of

the land is determined based on the standard size of the plot

and there is possibility of increasing the price of land depending

upon the size determined after final construction is made.

Similarly in the case of 112 EWS houses also a communication

was made to all concerned in identical manner and they were

also informed that they have been allotted a house under the

lottery system and the amount has to be paid in accordance to

the installments indicated. Even though in their case the exact

particulars of the house allotted to them was not indicated but

all other factors with regard to payment of installments etc. was

communicated to them as was done in the case of 10 HIG

allottees.

18. It is therefore, clear that even though in all the cases

the appellants contend that there is no allotment and there is

only a registration of the applications for considering the

eligibility of a person but the procedure followed which is

termed as registration indicates that certain allotment was

made, installments were fixed and all the aspirants paid the

amount for the houses in accordance to the installments fixed,

some of them seem to have paid the entire amount in one

installment. That apart, in most of the cases house number etc.

have also been indicated at this stage.

19. The fourth set of cases pertains to 25 HIG Complex

situated in Harising Gaur Nagar, Sagar. In this case as was

done in the case of houses pertaining to Chhindwara and

Bhopal, advertisement was issued, registration was done and

after registration only a sum of Rs.1,50,000/ was paid and

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thereafter the documents available on record goes to show that

various communications were made and it was indicated that for

the purpose of development of land and with regard to land

acquisition also certain formalities have to be completed and the

distinguishing feature in this case is that except for demanding a

sum of Rs.1,50,000/ as initial payment which was paid by the

petitioners, no other installment was fixed and there are

communications to show that with regard to price of the land,

the development activities in the land and assessment of

compensation to be paid on land acquisition was in progress.

20. The fifth category of case is an isolated case being

Writ Appeal No. 144/2014. This pertains to allotment of Junior

HIG house in District Satna. An advertisement was issued in this

case also and based on the same the petitioner was granted a

registration vide letter dated 22.4.2008. The estimated cost of

the house in this communication was shown as Rs. 11.90 Lacs.

However, vide another letter dated 20.10.2008 – Annexure P/3,

the petitioner was informed that the cost of the house is now

assessed at Rs. 15.03 Lacs and, therefore, she should give an

undertaking in this regard. The petitioner is said to have given

the undertaking in accordance to this communication and

thereafter vide Annexure P/4 dated 16.7.2009, the installments

were fixed for payment of the amount of the amount of Rs.

15.03 Lacs and it is the case of the petitioner that she deposited

the entire amount as per the communication – Annexure P/5

dated 7.4.2012, further amount was also deposited by the

petitioner before 20.4.2012. Even though the house was allotted

to various other persons, it was never allotted to her. On the

contrary by the impugned communication – Annexure P/1 dated

4.5.2013, she was informed that now the cost of the house has

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gone upto to Rs. 20.39 Lacs and, therefore, she should deposit

the remaining amount of Rs.4.6 Lacs.

21. On going through the procedure followed in each of

the cases as indicated herein above, it is seen that except the

cases pertaining to 25 HIG situated in Hari Singh Gaur Nagar,

Sagar in all other category of cases after the right of each of the

applicants was determined by a lottery system, they were

communicated about their registration and allotment, even

though in the form of a registered allottee, installments were

fixed, options were given either for paying the installment as

per the installments indicated or by paying a lumpsum amount

in accordance to the scheme and availing the benefit of 8%

interest. All the applicants/ allottees adhered to the request

made. Some of them paid the entire amount in one installment

and others paid the installments within the schedule time and it

is when they were paying the installments that the impugned

action was taken for informing them that now the price of the

house to be allotted to them has increased in view of the

assessment of the price of the land as per Collector guide lines

issued in the respective district for the year 20112012.

22. In the backdrop of the aforesaid fact, it was the

finding recorded by the learned Writ Court that allotments have

been made to each of the aspirants and once allotment is made

the price of the land fixed at the time of allotment cannot be

changed. The learned Writ Court has held that except for

recovering any actual expenses incurred for the purpose of

development of the land or for any extra cost incurred for

construction, based on the Collector guide lines only the value

of the land on market price cannot be demanded after the

allotments. To this, the argument of the appellant Board is that

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the learned Writ Court has misconstrued the registration as

allotment, in fact there is no allotment in accordance with law.

What has been done is only a registration, actual allotment is to

be done after the houses are complete and final installment is

paid and therefore, before this stage the price of the land can be

increased. This is the moot question to be answered in these

appeals?

23. That apart, the learned Writ Court has also gone into

the question of tenability of Collector guide lines with reference

to the provisions of Section 47A of the Indian Stamp Act and the

finding recorded is that the Collector guide line is nothing but a

procedure for assessing the stamp duty to be paid on an

instrument. It is only a prima facie assessment of the cost of the

land or the house, for purpose of paying duty on the instrument

is not value of the land and, therefore, cannot be used for

recovering market value.

24. Shri R.N. Singh, learned Senior Advocate, appearing for

the petitioners/ allottees invited our attention to various documents

and material available on record – namely the advertisement dated

9.11.2007 – Annexure P/8, available at page 177; the Brochure –

Annexure P/4 at page 159 to 163; the transfer of land made by the

Veterinary Department; price incurred and calculation of the cost price

made for the land at Rs. 9000/ per square meter vide Annexure P/7;

the declaration made in the Vidhan Sabha with regard to the land; the

selffinancing scheme; the main features of the Scheme and tried to

argue that the fixation of the price for the land based on the Collector

Guidelines is unsustainable.

25. Learned Senior Advocate took us through the reasoning’s

given by the learned Single Judge to say that the price of the land

25

fixed by the Board is nothing but an arbitrary decision and the learned

Writ Court has not committed any error.

26. On the contrary, it was the case of the Board represented

by Shri P.K. Kaurav, Advocate, that what was intimated to the

petitioners vide communication dated 20.12.2007, (in the case of

Revera Township) is only a fact about their registration; learned

counsel pointed out that there was not allotment of the house as

canvassed by the petitioners/ allottees. Applications were called for, a

process of registration was undertaken and when the registration was

done, it was clearly brought to the notice of each of the prospective

purchaser/ allottees that the price fixed at the time of registration is

provisional and tentative, it is not final and is subject to increase based

on the escalation in the cost of construction etc, including the

escalation in the land price. It is his contention that from time to time

the cost price for construction and the price of the land increased and,

therefore, ultimately when the construction was completed and

possession was to be handed over after execution of the requisite

deed, the construction cost and the cost of the land was assessed, this

was done in accordance to the statutory powers of the Board and,

therefore, in demanding the price of the land based on the Collector

Guidelines, it is emphasized by Shri P.K. Kaurav that the Board has not

committed any error.

27. Shri P.K. Kaurav, learned counsel appearing for the

Board, invited out attention to the MP Griha Nirman Mandal

Act, 1972; its amendment Chapter IV of the same; Section 47,

50 and the powers of the Board to fix the cost price; so also MP

Housing Board Accounts Rules, 1991, the provisions of Rule 5.0

to 5.11 thereof; and the costing scheme stipulated in the

statutory rule to say that under Rule 5.7.4, it is clearly

stipulated that the Board is authorized to determine the sale

26

price of its houses, based on the actual determination of amount

incurred and the appreciation in land value can be included for

determination of the sale price. Based on these Rules, Shri

Kaurav tried to emphasize that the petitioners cannot claim

payment of land price contrary to something which was

prevalent at the time when the sale was to be executed after

construction. Learned counsel invited out attention to Circular

dated 24.10.2008, to canvass a contention that it is clearly

indicated in this Circular based on the decision of the Board that

for the purpose of transfer of land, the Collector Guidelines

would be made applicable; and in demanding the same the

Board has not committed any error. Learned counsel took us

through the Circular and scheme in detail to say that it clearly

contemplates that the price fixed at the time of registration is

not the final price; the final pricing is done by the Price Fixation

Committee, which is determined at the time of completion of

construction and it is at that time that the costing of the actual

land price is undertaken. It was the case of the Board and Shri

P.K. Kaurav vehemently argued that the Board has only

demanded for the price as per the terms and conditions agreed

upon and has not committed any error. It is his case that the

Board is well within its right in demanding the price of the land,

based on Collector Guidelines as that is the actual value of the

land, when transfer of the land is to be undertaken after

construction is completed.

28. Shri P. K. Kourav, who appeared for the housing

board along with Shri R. K. Samaiya, Shri Himanshu Mishra,

Shri G. P. Dubey who represented the appellant Housing Board

in various appeals argued that in each of the case final

allotment has not been made. What was communicated to the

27

respondents was that they have been provisionally selected for

allotment and therefore, their name has been registered, they

have paid certain amount towards confirmation of their

registration, allotment is to be made after the final call is given

and before the final call for allotment and payment of the

actual cost price of house and land is not made, the Board has a

right to seek the actual market value of the land as determined

at this stage along with actual construction cost of the house. It

is their case that as per the scheme and the communication

made, each of the respondents had agreed to this proposal of

the Board and now they cannot go back on their acceptance. It

is the case of the appellant in each of the case that the learned

Writ Court misconstrued the registration to be allotment and

applied the law laid down in various cases which pertains to

questions determined by the Supreme Court in the matter of

enhancement of price after the actual allotment is made. It is a

specific case of the Board that in all these cases, no allotment

has been made, only registration has been granted. That apart,

it is their contention that as the land is being transferred to the

allottees on a particular day, the value of land and its market

value as on that day can be claimed by the Board, as this is the

value of the land being transferred to the aspirants and

therefore, the Collector guide lines is applicable.

29. Learned Counsel appearing for the appellants in

support of their contentions placed reliance on the following

judgments : Ramesh Chand Bansal Vs. District Magistrate –

(1999)5 SCC 62; R. Sai Bharthi Vs. J. Jayalalitha – (2004)2

SCC 9; Jawajee Nagnatham v. Revenue Divisional Officer

(1994)4 SCC 595; Land Acquisition Officer Vs. Jasti Rohini –

(1995) 1 SCC 717; UP Jal Nigam Vs. Kalra Properties –

28

(1996) 3 SCC 124; Lal Chand Vs. UOI – (2009) 15 SCC 769;

V. N. Devadoss vs. Chief Revenue Control – (2009)7 SCC

438; Kaliaperumal Vs. Rajagopal – (2009)4 SCC 193; Delhi

Development Authority Vs. Pushpendra Kumar Jain – (1994)

Supp (3) SCC 494; MP Housing Board Vs. Anil Kumar

Khiwani – (2005) 10 SCC 796; Indore Development

Authority Vs. Sadhna Agrawal – (1995) 3 SCC 1; Nisha

Singhal Vs. MP Housing Board, AIR 1996 MP 212; DDA Vs.

Joing Action Committee – (2008) 2 SCC 672; Bareilly

Development Authority Vs. Ajay Pal Singh – (1989) 2 SCC

116; Delhi Development Authority Vs. Pushpendra K. Jain –

(1994) Supp.3 494; S. Srinivasa Murthy Vs. Karnataka

Housing Board – (2012) 8 SCC 424; T.N.Housing Board Vs.

Sea Shore Apartments – (2008)3 SCC 21; Bareilly

Development Authority Vs. Vrida Gujarati – (2004)4 SCC

606; Chief Administrator vs. Shabnam Virk (2006)4 SCC

74 ; BSNL vs. BPL Mobile – (2008)13 SCC 597; Central

Inland Water Transport Corporate Limited Vs. Brojo Nath –

(1986) 3 SCC 156; Tamil Nadu Housing Board Vs. Service

Society – (2011)11 SCC 13; Premji Bhai Parmar vs. DDA –

(1980) 2 SCC 129; Bareilly Development Authority Vs. Ajai

Pal Singh – (1989)2 SCC 116; Naseem Bano Vs. State of U.P.

AIR 1993 SC 2592; State of Punjab Vs. Dhanjit Singh

Sandhu – Civil Appeal No. 56985699/09 and State of UP Vs.

Chaudhari Ranbeer Singh – (2008)5 SCC 550.

30. Shri P. K. Kourav took us through each and every

judgment as indicated herein above and submitted that the

learned Writ Court has relied upon these judgments and he tried

to distinguish each and every case by contending that the

application of the case and the principles laid down therein, in

29

the facts and circumstances of the present dispute is wholly

unsustainable. He refers to the scheme for allotment of house

under the Self Financing Scheme, the Rules of 1994 and argued

that all these provisions permit the Board to fix the price of the

land at the time when the final allotment is made after the

house is contructed and as the respondents in each of the cases

has agreed to this scheme, they are now estopped from going

back on the same. In the case of 30 houses pertaining to Revera

Township, Bhopal, it was specifically emphasized by him that

when communication was made for increase of the price, the

applicants/ allottees give their consent for payment of the cost

of the land as per Collector guide lines and that they are now

estopped to wriggle out from the same. He has given a written

note, in support of his contention.

31. Shri R. N. Singh, learned Senior Counsel who has

represented most of the respondents, Shri Jaideep Sirpurkar,

learned counsel who appears for the respondents in Chhindwara

case and Shri Hemant Shrivastava and Shri Vijay Shukla,

learned counsel appearing for the respondents submitted that

what is termed as a registration by the Board is in fact a

allotment and once the allotment is made, the law does not

permit the Board to increase the price of the land. That apart, it

was emphasized by them that in each of the case, they have no

objection in paying the actual cost incurred by the Board due to

increase in the cost of the construction or any expenses incurred

for development of the land etc. but they say that merely

because the Collector guide lines has come into force, without

any extra cost being incurred for the purpose of development of

land, demanding the land price as per Collector guide lines is

not feasible as it is nothing but undue enrichment by a Statutory

30

Board created for public welfare. They submit that under the

Self Financing Scheme, this is not permissible and further

contending that the arbitrary decision has been taken by the

Board in fixing the price of land as per Collector guide lines,

they sought for interference. It was submitted by taking us

through the judgment of the learned Single Judge in detail that

the learned Writ Court has dealt with each aspect of the matter

in accordance to law and therefore, no indulgence be made into

the matter. Learned counsel for the respondents also relied

upon the same judgments as are mentioned in para 28 above in

support of their contention.

32. We have considered the rival contentions and we find

that the moot questions which warrants consideration in these

appeals are : (a) As to whether in fact and in law in each of

the cases allotment of houses was made or the procedure

followed as contended by the Board is only a process of

registration and not allotment ? (b) Whether the Board is

entitled to claim the price of the land as per Collector guide

lines without incurring any extra expenditure on its

development or otherwise ? and (c) Whether under the Self

Financing Scheme the market value of the land can be

determined in the manner done by the Board which has a result

of there being total uncertainity in the price of the land which

fluctuates from time to time?

33. We have considered the contentions advanced by

learned counsel for the parties at length. All the cases before us

are cases pertaining to allotment of residential accommodation

under the Self Financing Scheme. The scheme has been filed

by the parties and already indicated herein above. It is

Annexure P/4 at page 159 of the paper book.

31

34. The concept of Self Financing Scheme and its salient

features have been laid down by the Supreme Court in the case

of Anil Kumar Khiwani (supra). In the aforesaid case it has

been held that under the Self Financing Scheme cost plays an

important role. The various units of the building scheme are

self financed. The buyer of the unit has to fund the cost of

construction. Under such a scheme the buyer is not entitled to

buy a unit at a price which is less than the cost of construction.

It is held by the Supreme Court that under the Self Financing

Scheme pricing is generally based on the cost of construction

unlike outright sale made of a house after the construction is

complete, where pricing is market related. That being so, the

Supreme Court itself has held that in a Self Financing Scheme a

cost is determined on the basis of cost of construction and the

price is not market related as is generally the case of transfer in

other housing schemes. The only restriction on a buyer in a Self

Financing Scheme is that he does not have a right to purchase

any unit at a price lower than the actual construction price.

Another feature of the Self Financing Scheme is that even if

there is a failure on the part of one contributor to pay the cost,

this cost difference is distributed amongst the other stake

holders. If we go through the aforesaid judgment and Self

Financing Scheme as laid down by the Board, it is clear that the

Board may be entitled to recover the entire actual cost spent by

them in making the purchase of the land but by introducing a

concept of market valuation or market price, they are not

entitled to enhance the cost and claim escalated price without

there being any actual escalation in the price paid by the Board

or expenses in the matter of construction or purchase of land or

its development. It is this aspect of the matter which has been

32

taken note of by the learned Single Judge while dwelling to

consider the question involved in the matter. In para 32 of the

judgment rendered by the learned Single Judge, he has found

that the Board has to establish that they had incurred extra cost

for the land and therefore, they are charging market value.

That being so, we are of the considered view that once it is an

established position that the transfer of the property in the

present case and the entire scheme was based on a Self

Financing Scheme, recovering market value for the land

without there being any actual expenses incurred by the Board

was not correct.

35. The board is a creation of the statute, it is an organ of

a State and primarily established for providing housing facility

to the citizens of the State on terms and conditions as are

financially viable and within the reach of the common man. The

Board is not a commercial business venture of the State

Government like other builders or estate agent and is not

expected to be a profit earning venture. It is only required to

get such profit which is reasonable and which is required for its

functioning and adequate enough for its maintenence. The

amount required for carrying out the activities of the Board are

calculated while implementing a particular scheme or project

and it is never the intention of the legislature to permit the

Board to engage in commercial activities which is detrimental to

public interest. The decision of the Board has to be reasonable

and in public interest. If the act of the Board in the present case

in the matter of fixing the price of land is evaluated, it would be

seen that this is not in confirmity with the aims and objects of

the Board and therefore, we have to term it as an arbitrary and

illegal decision, which is unsustainable. The increase in price of

33

land is exorbitant and is not justified. The only reason that

came forth at the time of hearing was that the Board is facing

financial crisis and loss and is trying to make it up, due to

which the impugned actions seems to have been taken.

Mismanagement of Board which resulted in financial crisis,

cannot be a ground for acting in a manner so as to cause undue

harassment and financial burden the consumer and saddle them

with additional financial liability which is not warranted in the

given set of circumstances. This is also a reason which compels

us to hold that the action of the Board in applying the Collector

guide lines in the present set of case is not proper.

36. The next question which warrants consideration is as

to whether the allotment in question which is claimed to be only

a registration by the appellant Board is in fact a allotment and

therefore, once the allotment is made the Board is debarred

from raising the construction cost or claiming enhanced price of

the land.

37. From the judgment rendered by the Supreme Court in

various cases which were read during the course of hearing and

on a perusal of the order passed by the learned Writ Court, we

find that from para 33 onwards the learned Writ Court has gone

into the question and has held that once the allotment is made,

the price cannot be increased and for holding so, the principles

laid down in various cases including the case of Tamil Nadu

Housing Corporation (supra) and Delhi Development

Authority (supra) case has been relied upon. Learned counsel

for the appellant Shri P. K. Kourav also admitted this position,

but he argue that in the present case, the learned Writ Court has

misconstrued the registration granted to be an allotment which

according to him is a perverse finding.

34

38. If the Scheme for allotment as contained in Annexure R/4

is considered, it would indicate that in the Scheme a provision is there

for issuance of advertisement; calling for applications; drawing of lots

and fixing the allottees; registering their names; simultaneously

getting them to pay 10% of the cost price; and, thereafter fixing the

installments for payment of the remaining amount; the amount to be

fixed in each installments is fixed; thereafter the allottee is given an

option either to give the entire amount in one installment in which

case he is granted a benefit of 8% interest. There is nothing in the

Scheme which goes to show that at the time of registration and when

the entire schedule for payment of installment and the cost is

determined, there is any other procedure for allotment. The only

requirement thereafter is final possession and execution of the

document. It is, therefore, clear that neither in the Scheme – Annexure

P/4 nor in the actual procedure followed by the Board in each of the

case, is there anything to be done after the draw of lottery and

registration is completed, which can be termed as a process for

allotment of the house to a prospective allottee. Infact the process of

registration is a process of allotment itself and in the procedure

contemplated, it also provides for entering into an agreement at that

point of time, but there is no agreement executed in any of the cases

in hand.

39. The contention of Shri P.K. Kaurav, learned counsel for the

appellants, that the process followed initially in each of the case is

nothing but a registration and is not an allotment cannot be accepted

by us. The procedure followed even though termed as registration by

the Board is a process of allotment and in holding the same to be

allotment the learned writ Court has not committed any error.

40. It is clear from the scheme that for allotment of

houses under the Self Financing Scheme, the appellant Board

35

issues an advertisement, in the advertisement a fees is fixed

which is to be deposited along with the application, the price of

the house is indicated and the interested person is required to

deposit 10% of the cost price at the time of registration. If the

applications received are equal to the number of house available

or less, allotment is made to eligible candidate and if the

number is more than the available houses, then the prospective

allottee is determined by draw of lot through a lottery system.

After the lottery system is followed and the allottee is finalized,

even though the communication (as available on record)

information is given to the registered allottee, but along with

this communication he is given a schedule for payment of

installments and installments have been collected as per this

schedule and in some cases an option for one time deposit on

payment of interest at the rate of 8% is granted. Thereafter,

when the construction is over only the remaining price is

recovered and the instrument of transfer registered. Once the

draw of lottery takes place and when the schedule for payment

is indicated, it is not known as to what further process is

required for issuing any allotment order. Even though the

appellant Board terms this procedure to be only registration of

the prospective allottees but in fact and in law we have no

hesitation in holding that this procedure is nothing but a

procedure for allotment of the house, because once the allottee

is determined, he is communicated the installments to be paid,

the period and schedule for installment is also given. An

option to deposit the entire amount in one go and thereafter, if

the construction cost and after the construction, the difference

in cost is worked out and after recovery of the same, the

transfer is effected. That being so, the learned Writ Court has

36

not committed any error in holding that in all of these cases

allotment has been done and once the allotment has been done,

the Board is denuded of its power to seek enhanced cost of land

based on Collector guide lines. Cost of the land was determined

by the Board based on the various factors and other aspects at

the time of allotment/ registration itself and thereafter the

Board cannot recover any cost of land on the ground that at the

time of handing over the possession and registration of

instrument, the land price has increased due to coming into

force of new Collector guide lines. This action of the Board

was clearly unsustainable and therefore, the learned Writ Court

has not committed any error in holding that once the allotment

has been done, no enhancement or recovery is permissible. This

is in accordance to the law laid down in various cases and we

see no reason to take a different view.

41. Shri P.K. Kaurav, learned counsel, while canvassing

his contention in detail had referred to various documents and

observations of the Supreme Court in the judgments relied upon

to say that the Board is entitled to fix the price of the land in

accordance to the Collector Guidelines and the value of the land

transferred is nothing but the one indicated by the Collector in

the guidelines.

42. However, the learned writ Court has gone into all these

aspects in detail and has discussed each and every judgment and its

implication. That apart, the Circular dated 24.10.2008; the statutory

Rules and the Provisions of the Act of 1992 have been meticulously

considered by the learned Single Judge for arriving at the conclusions.

We have gone through each and every aspect of the matter as has

been discussed by the learned Single Judge and we find that the

learned Judge has given due consideration to each and every aspect

37

of the matter and it is not necessary for us now to go into various

aspects of the matter separately, as we are only affirming the order of

the learned Writ Court. The learned Single Judge has gone in detail

through the statutory provisions, particularly the Act of 1972; the MP

Housing Board Accounts Rules, 1991; the Provisions of Rule 5.0 to

5.11 under Section V; and based on these Rules the final conclusion

drawn by the learned Single Judge in paragraph 28 reads as under:

“28. The Board has tried to justify the linking of

determination of cost price of land with the Collector's

guidelines. These guidelines, evident it is, are for the

purpose of determination of Stamp Duty and keeps on

changing every year. Whether such a volatile flexible and

even changing factor can be the foundation for

determination of the cost price in respect of self financing

scheme. And even if it can be relied whether an

application of it can be at the detriment of the

purchasers/allottees. When in fact as in the present case

where it will be noticed little later that no extra cost has

been incurred on the land from the date it is acquired and

moreso from the date of allotment of Units in favour of

respective purchasers.”

43. Thereafter, the learned Writ Court has gone into the

question of Section 47A of the Indian Stamp Act, 1899; the judgments

with regard to the fixation of the market value based on Collector

Guidelines and the Rules framed under the Stamp Act; and, the

conclusions drawn by the learned Single Judge in this regard reads as

under (Paragraph 32):

“32. ….. However, unless established that the

determination of market value is by the expert committee

constituted under 2000 Guideline Rules, by following the

38

procedures laid down therein, the market value

determined by the Collector in the considered opinion of

this Court will not be foolproof determinant for pricing of

the residential accommodations under the self financing

scheme. Even if it is made the basis which the Board has

in the instant case. It will be for the Board to establish

that with every changing market value of land, they had to

incur extra cost for the land with every change from the

date of final allotment. And unless established it will be

beyond its power to add hypothetically the cost price.”

44. As far as determining the date of allotment is concerned,

the learned Single Judge in paragraphs 33 and 34 has considered the

issue in the following manner:

“ 33. The next question is whether it is the date of

allotment order or the date when an instrument of transfer

is executed should be the date for determining the cost

price of land to be included in the final cost price which a

buyer has to pay under self financing scheme. Can it be

the date when the project is mooted, i.e., when a technical

and administrative sanction is granted, or the date when

the offer is floated vide advertisement, or when the

applications are scrutinized. The answer would be in the

negative because, these stages are the floating stage. A

stage, however, comes after the scrutiny of application

received in pursuance to the tender, when the respective

allotees are determined; i.e., the allotment is finalized.

However, at this stage there may be or may not be any

execution of instrument conveying the title, but still stage

is reached when it is finally determined as to the person

39

who is to be allotted the unit. There is thus accrual of

some right in favour of such allottee. Which in future

culminates into sale/transfer of the property in question

with the execution of instrument of sale or transaction, as

the case may be. At this stage one comes to know that he

is the actual purchaser of the residential house.

34. Whereas, the contention on behalf of petitioners is

that the date on which the allotment order is issued should

be the date for determining the cost price of land, subject

to adding of any extra price incurred in the cost price of

land. The respondent Board, however, has to submit that

since there is no accrual of right in favour of the

prospective buyers, merely on their registration and the

right only accrues when an instrument of transfer is

executed, it is the date of such instrument which is the

determinant date for the cost of land to be included in the

final cost price which in turn is based on he Collector's

guidelines. True it may be that the title in property will

normally pass to purchaser from the date of execution of

saledeed. However, as held in Kaliaperumal v.

Rajagopal and another [(2009) 4 SCC 193] “the true

test is the intention of the parties”. It has been held

therein “18. Normally, ownership and title to the

property will pass to the purchaser on registration of the

sale deed with effect from the date of execution of the sale

deed. But this is not an invariable rule, as the true test of

passing of property is the intention of parties. ....” Though

the proposition of law is in the context of different set of

facts. However, the principle can be taken aid of in

respect of the aspect of pricing of a unit/residential house

40

under the self financing scheme. The determinant factor

would be when it is tacitly agreed, if not expressly, that,

the price of land at the time of registration of/or execution

of instrument of conveyance would be included in the

input price for pricing the unit/residential house, it will

the date on which the right to allot the house is

determined. It has been held in Delhi Development

Authority v. Pushpendra Kumar Jain [1994 Supp (3)

SCC 494] that “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.”

45. After so holding, the learned Single Judge has gone into

the MP Housing Board Accounts Rules; selffinancing Scheme; the

distinct features of the Scheme; the law laid down in the case of Anil

Kumar Khiwani (supra); and, in paragraph 40, the conclusion is

drawn in the following manner:

“40. The principle culled out from the above verdict is

that in case of self financing scheme, the purchaser will

have to bear the actual costs of construction which

includes the price which the Housing Board has to incur.

Thus, the price paid by the Board in construction or in

raising the fund becomes the principal factor for pricing of

a housing unit which is likely to be different than the price

of constructed unit sold at market price. Therefore, it has

been observed in Anil Kumar Khiwani (supra) in

paragraph 21 “Our observations herein however should

not be read to mean that the developer in the present case

has an absolute right to increase the cost of flats initially

41

announced as estimated cost. The final cost should be

proportionate to the estimated cost mentioned in the offer

keeping in mind the rate of inflation, escalation of the

prices of inputs, escalation in the prices of the construction

material and labour charges.”

46. Thereafter, the learned Single Judge found that the

concept and expression ‘market value’ is a changing concept; and, in

paragraphs 42 and 43, its implication in the backdrop of selffinancing

Scheme has been considered in the following manner:

“42. Would that mean that in case of self financing

scheme wherein the execution of instrument of

conveyance is deferred, cost incurred on the land at the

initial stage and in absence of cogent material to establish

that the Board subsequently thereafter has incurred any

cost on said input (i.e., land), the market price of land as

determined by Collector, at the time of execution of the

instrument of conveyance can be included in pricing.

43. Since the basic feature of pricing under self financing

scheme is meeting out the cost of input, if no further cost

is shown to have been incurred in the input such as land,

the Board is not justified in adding the market price of the

land at the time of execution of instrument of conveyance.

In case if the Board is allowed to do so, then it is like

permitting the Board to earn profit which would be

contrary to the object for which the Board has been

brought into existence. Unjust enrichment is contrary to

justice, equity and good conscience.”

42

47. After so holding, each and every judgment referred to

hereinabove and relied upon by learned counsel for the parties is

considered by the learned Single Judge and it is his conclusion that

unless established that some extra expenditure was incurred by the

Board after the allotment of site and before final pricing, that the

action of the Board is nothing but an arbitrary and unjustified action.

In arriving at the aforesaid conclusion and in holding that the Board is

not entitled to recover the extra amount for the price of land based on

Collector Guidelines, we find that the learned Single Judge has not

committed any error warranting interference.

48. We have reproduced the observations and findings

made by the learned Single Judge in the preceding paragraphs

only to indicate that the learned Single Judge has exercised his

powers in a very reasonable manner, has given cogent reasons

for holding so and, therefore, it is not necessary now for us to

go into the question separately and answer them in a different

manner when we agree with the conclusion arrived at by the

learned Single Judge and the justification given by him for

doing so.

49. In W.A. No. 144/2014 i.e.. the fifth case also, once

the allotment was finalized and the entire amount was paid by

the petitioner as per communication – Annexure P/4 dated

16.7.2009, and when the petitioner also deposited the enhanced

amount demanded vide Annexure P/5 on 7.4.2012, the

impugned order seeking payment of additional sum of Rs. 4.6

Lacs can be justified only if the additional sum now claimed by

the impugned order is the actual cost and expense incurred by

the Board for making construction. If it pertains to only fixing

the price of the land on Collector Guidelines, it is not

permissible.

43

50. We may point out that except in the cases pertaining

to Hari Singh Gour Nagar, Sagar, there is allotment and deposit

of installments or registration in one go in all the cases and

therefore, in all the cases, the allotment order having been

issued no increase thereafter is permissible with regard to the

cost of the land.

51. As far as the 25 HIG Duplex houses in Hari Singh

Gaur Nagar, Sagar is concerned, the different process has been

followed in their cases and therefore, we are of the considered

view that the concept of allotment having been made cannot be

applied in these cases. In these cases the question has to be

reconsidered based on the factual scenario as is existing therein

and therefore, these cases are to be remanded back to the

Appellant Board for reconsideration as it cannot be said that in

these cases also final allotments were made because the

communication available do not show so.

52. However, once we hold that the scheme under the

Self Financing Scheme does not permit the appellant Board to

apply a market oriented concept for recovery of land price and

approve the finding of the learned Writ Court. We have to

further say that the decision of the Board in recovering the

market price for the land based on the Collector guide lines is

nothing but an arbitrary decision and it has to be quashed. The

board is only entitled to recover the price of the land and fix it

based on the actual expenses incurred by the Board for purchase

of the land, its development etc. and determine it with reference

to the date when the allotment is made after finalization of the

lottery. This process should be followed even in the case of 25

HIG Duplex houses in Hari Singh Gour Nagar, Sagar and

therefore, for determining this factor we remand these matters

44

(Hari Singh Gour Nagar, Sagar) back to the Board itself. The

cases pertaining to HIG Duplex houses in Hari Singh Gour

Nagar, Sagar are remanded back to the appellant Board with the

following directions :

The appellant Board shall determine the cost of the

land and cost of houses in all these cases based on actual

expenses incurred by the Board for construction and for

development of land, payment of compensation etc. on land

acquisition and thereafter shall recover the value of the land by

determining the cost of the land in accordance to law.

53. In view of the aforesaid findings and reasons given by

us the order passed by the learned Writ Court challenged in

these appeals is upheld and all the appeals except the following

appeals pertaining to 25 HIG Duplex Houses in Harisingh Gour

Nagar, Sagar , are dismissed without any order so as to costs.

54. As far as the following Writ Appeals No.WA

206/2014, W.A. 203/2014 and W.A. No.205/2014 are

concerned they are remanded back to the competent authority

of the Board for proceeding in accordance to the directions

already given by us as indicated herein above.

55. As far as Writ Appeal No. 144/2014 is concerned, it is

directed that the orderdated 4.5.2013 – Annexure P/1 is

quashed; and, the respondent Board shall only recover from the

petitioner therein the actual escalated cost of construction, if

any, after notice to the petitioner. They are restrained from

collecting any amount towards cost of the land assessed on the

basis of Collector Guidelines. If the entire amount of Rs.4.6 Lacs

is the cost of the land assessed on the basis of the Collector

Guidelines, the Board is restrained from collecting the same,

else they are granted liberty to recover only such amount which

45

is the actual cost of construction i.e… the escalated cost, and if

the petitioner pays the same, the house be allotted to the

petitioner.

56. The entire process as directed herein above be

concluded within a period of three months from the date of

receipt of certified copy of this order and in such cases where

construction of the houses are complete and allotees have made

the entire payment, the process for handing over possession and

concluding of the requirements for handing over possession be

undertaken and completed within a period of 30 days from the

date of receipt of certified copy of this order.

57. With the aforesaid, all these appeals stands disposed

of.

(Rajendra Menon) (Alok Verma)

Judge Judge

mrs.mishra

46

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT

JABALPUR

W.A. No.1550/2013 & other 41 connected cases

J U D G M E N T

For Consideration:

( RAJENDRA MENON )

JUDGE

/07/2014

HON'BLE SHRI ALOK VERMA, J.:

( ALOK VERMA )

JUDGE

/07/2014

POST FOR : /07/2014

( RAJENDRA MENON )

JUDGE

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