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Jayvandana D/O. Sumatilal Chimanlal Shah Vs. Gujarat Housing Board and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR73
AppellantJayvandana D/O. Sumatilal Chimanlal Shah
RespondentGujarat Housing Board and ors.
Excerpt:
.....per day and own your house scheme' (hereinafter -save rupee scheme or s. however, the respondent housing board made arrangements with housing and urban development corporation (hereinafter -1-iudco) for loan to construct houses for the poor people under the scheme known as 'economically weaker section scheme' (hereinafter -e. qureshi, the petitioners are very poor persons. scheme which was the next best available in the circumstances, though its terms and conditions were not quite as liberal as those under the s. scheme which was the next best available for the poor people like present petitioners. it is true that the petitioners are very poor people, whose income at that time is said to range between rs. scheme was an ideal way of helping these poor people to own their tenements. 7...........to be rs. 12,000/- when the tenements were ready. the petitioners were offered the said e.w.s, scheme tenements at chandkheda at rs. 12,000/-. each one of these petitioners was allotted one tenement. it is the case of the respondent housing board that each of these petitioners accepted the allotment on the terms and conditions on which it was offered. each petitioner has entered into a separate agreement with the respondent housing board. the petitioners are in possession and enjoyment of their respective tenements since then.3. the petitioners have contended that they had originally applied for allotment of tenements under s.r.d. scheme which the respondent, housing board had accepted and therefore the housing board is bound by it and must provide tenements to the petitioners under.....
Judgment:

A.S. Qureshi, J.

1. In this group of 7 petitions, the common questions of law and facts involved. Hence, at the request of the learned Counsel for the parties, they are heard together and disposed of by this common judgment.

2. The petitioners belong to the Economically Weaker Section of the Society. The respondent Housing Board had formulated a scheme for housing these poor people under 'Save a Rupee per day and Own Your House Scheme' (hereinafter - Save Rupee Scheme or S.R.D. Scheme), whereby the applicants were required to make an initial deposit of Rs. 1050/- and thereafter to deposit at the rate of Re. 1/- a day, to own a small tenement estimated to cost approximately Rs. 6.000/-. Along with others, the petitioners applied for joining the said S.R.D. Scheme. Subsequently, the said S.R.D. Scheme appears to have run into difficulties as the expected finances were not forthcoming and therefore eventually the said Scheme had to be abandoned. However, the respondent Housing Board made arrangements with Housing and Urban Development Corporation (hereinafter - 1-IUDCO) for loan to construct houses for the poor people under the scheme known as 'Economically Weaker Section Scheme' (hereinafter - E.W.S. Scheme). The cost of the tenement was estimated to be approximately Rs. 8,000/-under this scheme. The petitioners had applied for the tenements proposed to be constructed at Vadaj. As the S.R.D. Scheme at Vadaj was not feasible, the respondent Housing Board offered them tenements at Chandkheda under the E.W.S. Scheme, where the total cost was estimated to be Rs. 12,000/- when the tenements were ready. The petitioners were offered the said E.W.S, Scheme tenements at Chandkheda at Rs. 12,000/-. Each one of these petitioners was allotted one tenement. It is the case of the respondent Housing Board that each of these petitioners accepted the allotment on the terms and conditions on which it was offered. Each petitioner has entered into a separate agreement with the respondent Housing Board. The petitioners are in possession and enjoyment of their respective tenements since then.

3. The petitioners have contended that they had originally applied for allotment of tenements under S.R.D. Scheme which the respondent, Housing Board had accepted and therefore the Housing Board is bound by it and must provide tenements to the petitioners under S.R.D. Scheme. According to them, the respondent Housing Board is prevented from imposing the E.W.S. Scheme on the petitioners under the principle of promissory estoppel.

4. Mr. Akil Qureshi for Mr. Hamid Qureshi the learned Counsel for the petitioners in all these petitions has urged that the petitioners had applied for the allotment of tenements under S.R.D. Scheme on a representation by the Housing Board that on payment of Re. 1/- a day, they would be allotted a tenement. According to Mr. Qureshi, the petitioners are very poor persons. Hence, they are unable to pay the amount under the E.W.S. Scheme. He therefore submits that the respondent Housing Board must be directed to consider the allotment of tenements to the petitioners as having been made under S.R.D. Seheme and accept the purchase price under that scheme.

5. Mrs. K.A. Mehta, the learned Counsel for the respondent Housing Board has submitted that while it is correct that the petitioners had applied for allotment of tenements under S.R.D. Scheme, they could not be provided With the tenements under that scheme as the said scheme did not materialise on account of non availability of funds. She has further submitted that the Housing Board had, as an alternative, offered to the petitioners and others the E.W.S. Scheme which was the next best available in the circumstances, though its terms and conditions were not quite as liberal as those under the S.R.D. Scheme. Mrs. Mehta has also urged that the petitioners have willingly accepted the allotment of tenements under E.W.S. Scheme. Hence, they are bound by its terms and conditions, especially as they have entered into separate agreements in respect of the said allotment. Mrs. Mehta has relied on a Single Judge judgment of this Court, (Coram : A.M. Ahmadi, J.) in Special Civil Application Nos. 704/ 80 and 739/80, wherein it was held that the petitioners in those petitions had applied for the allotment of tenements under the E.W.S. Scheme. Hence, it was not open for them to claim the allotment under S.R.D. Seheme. Mr. Qureshi has pointed out that there is distinction between the facts of those two cases and the present petitions inasmuch as the present petitioners had not applied for allotment of tenements under E.W.S. Scheme, as was the case in the aforesaid two petitions. Mrs. Mehta has met this argument by pointing out that although in the present petitions, the original application was under S.R.D. Scheme, the petitioners have adopted E.W.S. Scheme by accepting the allotment under the later scheme. Hence according to her, the petitioners are bound by the terms and conditions of E.W.S. Scheme under which they have accepted the allotment of the tenements. This contention urged on behalf of the respondents (of Mrs. Mehta) must be upheld. The petitioners having obtained allotment under E.W.S. Scheme, it is not open to them to fall back on their original application and say that the respondent Housing Board is bound to allot them tenements under S.R.D. Scheme, which did not materialise due to certain inevitable circumstances. The petitioners are bound by the terms and conditions included not only in the letter of allotment, but also under the independent agreements signed by each of the petitioners separately. It is submitted on behalf of the petitioners that the respondent Housing Board is bound by the principle of promissory estoppel. In fact the principle of promissory estoppel has no application to the facts and circumstances of this case. There is no promise as such that the respondent Housing Board is bound to provide tenements under S.R.D. Scheme. The applications were invited in a hope that necessary funds would be available to carry out the scheme, but in absence of such funds forthcoming the respondent Housing Board was compelled to abandon the scheme. The petitioners were offered tenements under E.W.S. Scheme which was the next best available for the poor people like present petitioners. The petitioners had a clear option to reject the offer made to them for the allotment of tenements under the E.W.S. Scheme, and claim the refund of the amount paid by them till then and walk out of the scheme. But having opted to take the benefit of the allotment of tenements under E.W.S. Scheme, now it is not open to them to say that they are not bound by the terms and conditions of E.W.S. Scheme. It is true that the petitioners are very poor people, whose income at that time is said to range between Rs. 250/- and Rs. 350/- per month. The S.R.D. Scheme was an ideal way of helping these poor people to own their tenements. It is just unfortunate that the funds were not forthcoming as was expected and hence, the said scheme did not materialise. But the respondent Housing Board has been fair enough to offer them tenements in the next available scheme under which the petitioners accepted and have been alloted tenements which they are occupying at present.

5.1. As regards the cost of construction, Mr. Qureshi has stated that the original estimate was Rs. 6,000/- per tenement under the S.R.D. Scheme. Subsequently however with the rise in cost of materials, the estimate was increased to Rs. 8.000/-. At the time when the petitioners applied for the allotment of tenements, the estimated cost was Rs. 8,000/- per tenement. Mr. Qureshi has urged that it is not open to the respondent Housing Board to claim the actual cost of each tenement at Rs. 12.000/- which is considerably more than the original estimate of Rs. 8,000/-. This contention of Mr. Qureshi cannot be accepted because an estimate is only an approximate figure worked cut on the basis of current prevailing prices of materials and labour charges. The final cost can be known only after the construction is complete and all expenses incurred. The original estimate cannot be regarded as the basis of contract between the applicant and the respondent Housing Board. It is common knowledge and daily experience that the prices are rising continuously and therefore any estimate would be overtaken by the galloping increase in prices. Hence, the contention that the final purchase price which is considerably higher than the estimated price the petitioners cannot be compelled to pay is untenable. The petitioners have to pay the purchase price of the tenement worked out on the basis of the actual expenses incurred. It may be pointed out that the questions regarding the actual cost cannot be determined in a petition under Article 226 of the Constitution because such a question can be determined only on the basis of the evidence which may be led by the parties in a civil suit. The writ jurisdiction is not amenable to decide the disputed questions of fact.

7. In the result, the petitions fail and are rejected. However, the petitioners are said to be in arrears with regard to the payment of past instalments. They deserve to be given some time in view of the fact that they belong to the weaker section of the society. It is hereby directed that the petitioners will pay the arrears of all the dues payable to the respondent Housing Board within a period of six months in six equal monthly instalments together with the current instalment every month. Rule discharged. In the circumstances of the case, there shall be no order as to costs.


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