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PETITIONER: U.P.AVAS EVAM VIKAS PARISHAD & ANR.

       Vs.

RESPONDENT: RAVI KUMAR ANAND & ORS.WITHCIVIL APPEAL NOS.5714-26/95

DATE OF JUDGMENT02/05/1995

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 AIR 2076            1995 SCC  Supl.  (3) 182  1995 SCALE  (4)108

ACT:

HEADNOTE:

JUDGMENT:           THE 2ND DAY OF MAY, 1995 Present:           Hon’ble Mr.Justice R.M.Sahai           Hon’ble Mr.Justice Sujata V.Mahohar Mr.S.B.Sanyal, Sr. Advocate and Mr.P.K.Jain, Advocate with him for the Appellants. Mr.Arun Jaitley, Sr.Advocate, Mr.Ranjan Mukherjee, Mr.Rakesh Prasad and Mr. B.B.Saharya, Advocates for M/s Saharya & Co. for the respondents.                     J U D G M E N T The following Judgment of the Court was delivered: U.P. Avas Evam Vikas Parishad & Anr.         .....Appellants           Vs. Ravi Kumar Anand & Ors. .....Respondents                          WITH [CIVIL APPEAL NOS. 5714-26 OF 1995 (Arising out of SLP (C) Nos. 10736, 11514, 11528, 11529, 11531, 11530, 11534, 11536, 11535, 12156, 12157, 11532 and 21601 of 1994)].                        O R D E R      The short  question that  arises for  consideration  in these appeals  filed by  the statutory  body constituted for constructing and  providing houses is whether the High Court was justified,  in peculiar facts and circumstances of these cases, to allow review applications and writ petitions filed by various  allottees and  direct the  appellants  to  grant concession of  50% in  profit and administrative charges due to delayed  delivery of  flats as  the High Court in earlier writ  petition  had  granted  such  benefit  in  respect  of interest and penalty.      For proper  appreciation of  the controversy, few facts in brief are necessary to be mentioned. In a Scheme known as ’Self Financing  Scheme, 1985’  announced  sometime  in  the month  of   October/November,  1984   the  respondents  were allotted flats  in 1986  of  different  types  in  different

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income groups.  But the  possession could not be handed over as constructions  were not  complete.  When  possession  was delivered the  appellant demanded  extra amount as the price had escalated  in the  mean time.  It was  challenged by the allottees as  the amount  demanded  was  arbitrary  and  the constructions too  were incomplete.  The writ petitions were decided in  February, 1990.  The escalation  was upheld. But the demand  of interest at 18% was held to be excessive. The High Court  further observed  that brochure  issued  by  the appellant relating  to the Scheme empowered the Commissioner to grant relaxation from various conditions for valid reason or for the delay due to slackness of the official machinery. The High  Court directed  that since delay was caused as the appellant did  not  discharge  initial  responsibility,  the Commissioner may  consider granting  relaxation in  interest and  penalty.  The  respondents  were  not  satisfied.  They approached this Court by way of Special Leave Petitions. The petitions were  dismissed on  22nd March,  1990.  The  order reads as under:-      "The Special Leave Petitions are without      merits and  are dismissed.  The fate  of      these SLPs  will not,  however, stand in      the way  of the  petitioners moving  the      High Court  for clarification of certain      observations in  the impugned  judgment,      which the  petitioners  contend  are  in      their favour  and in  regard to which we      express no view".      In consequence  of the observations in the last part of the order the respondents approched the High Court by way of review petitions. Some of the allottees filed writ petitions as well claiming same benefit as was given by the High Court in its order dated 7th February, 1990. While these petitions were pending  the appellant  held a  meeting to consider the implications of  directions issued  by the  order. The Board resolved:- <SLS>           "The proposal  has been unanimously      approved   by    the   Parishad    after      discussion. It  was further  decided  by      Parishad that  this benefit  be given to      the allottees  who withdraw  their  case      from the court". <SLE>      The letter then gives out the concessions which the Board resolved to grant to allottees. It was as under:- <SLS>           "1.  After   the  issuance  of  the      allotment order  no  interest  would  be      charged  from  the  allottees  within  a      period of  three months  as indicated in      the order dated 22.4.88.      2. After  the  expiry  of  three  months      simple interest  at the  tate of  14.5.%      will  be   realised  from  allottees  as      indicated in  the order dated 29th July,      1988. This  period shall reckon from the      expiry of  three  months,  but  after  a      lapse of  an  year  18%  interest  penal      interest  would  be  charged  from  such      allottees.      3.  The  maintenance  charges  shall  be      reduced to the extent of 50%. In the end it was added:-           "Under  the   above   decision   of

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    Parishad the  Estate management  officer      Indira Nagar/Vikas  Nagar,  Lucknow  and      Kanpur and  Raibarielly be informed that      the persons  affected  be  assessed  and      requisition  be  sent  with  the  notice      enclosed. Please  take quick  action  so      that money may be recovered". <SLE>      This letter  was produced  before the  High Court. Even though the  scope  of  the  review  petitions  or  the  writ petitions was limited, the allottees attempted once again to raise the issue of escalation. It was rejected. But the High Court after perusing the letter observed that these benefits may be  extended to  every petitioner.  It was  further held that since  there was  no contractual  liability  about  the administrative and  profit charges  which wre  sought to  be recovered from  petitioners the  demand  was  liable  to  be reduced by 50%.      The question  that arises  for consideration is whether the High  Court was  justified in  extending the benefits of letter dated  20th/21st July  to all those allottees who had approached the  High Court  since the Board extended it only to those  who agreed  to withdraw  their petition. It is not necessary to decide this larger issue as the allottees could be precluded  from claiming  any benefit only if it could be established that  the decision  of the  Board was brought to their notice  by written  intimation and  yet they  did  not agree to  avail of  it. The  decision of  the Board  was, it appears, not  communicated to  each individual  allottee  in writing. The  argument of  the learned counsel for the Board that when  letter was  produced before  the  High  Court  it should be  held to  be intimation  to the allottees does not impress. The  Scheme was  a self-financing  scheme. The last part of  the letter  indicates that  some allottees  had not made the  payment. Therefore,  the authorities were directed to issue  letters after calculating the amount. The decision was not  communicated, therefore,  it cannot  be argued that those  who  did  avail  of  it  were  not  entitled  to  the concession.  The   effect  of   the   resolution   and   its implementation was  to grant  concession to  these allottees who had  committed  default.  That  was  not  fair.  If  the Commissioner relaxed  the  condition  in  pursuance  of  the judgment of  the High Court then the benefit of it could not be denied  to those  who were more law abiding and deposited the entire  amount demanded  by the Board. They could not be made worse than those who were defaulters. Consequently, all those allottees  who had  filed the review petitions or writ petitions and  to whom  no intimation was sent shall also be extended the same concession.      The High Court has further held that on the same partiy of reasoning  as of  maintenance, the  allottees  should  be granted concession  of 50  per cent in respect of profit and overhead charges.  Whether in  a ’Self Financing Scheme’ the Parishad was  entitled to charge profit and overhead charges from those  persons who  had deposited the entire amount but were not handed over possession and the delay was on part of the Parishad  is a  debatable  issue  on  which  it  is  not necessary to  express any opinion in this case as it was not open to  allottees to  raise it  and the  High Court was not justified in  granting the  concession as  these aspects had been  finally  decided  and  settled  in  the  earlier  writ petitions, SLPs  against which  had been  dismissed by  this Court. The  High Court could not have reopened the matter by way of  a review  petition when it was not permitted by this Court and effect of which, if permitted, would be to disturb

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the finality of the earlier decision.      In the  result, the  appeals are  allowed in  part, the order of  the High  Court allowing  the review  petition and directing the  Parishad  to  grant  50%  concession  on  the administrative charges  as well  as the  profit sought to be realised is  liable to be set aside. The order in respect of interest and the extension of concession as mentioned in the letter dated 20/21st July, 1990 to all the allottees subject to observation  made earlier  is upheld.  The parties  shall bear their own costs.