KAR.INDUST.AREAS DEV.BOARD Vs M/S PRAKASH DAL MILL .
Bench: B. SUDERSHAN REDDY,SURINDER SINGH NIJJAR, , ,
Case number: C.A. No.-005406-005445 / 2005
Diary number: 10171 / 2003
Advocates: Vs
A. S. BHASME
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REPORTABL E
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5406-5445 OF 2005
Karnataka Industrial Areas Development Board & Anr. .. Appellants
VERSUS
M/S Prakash Dal Mill & Ors. ..Respondents
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. The instant appeals are preferred against the final
order and judgment of the High Court of Karnataka
at Bangalore in W.A. Nos. 2183 to 2221 of 2000 &
W.A. No. 1492 of 2000 dated 18th February,
2003 whereby the Division Bench of the High Court
allowed the writ appeal by setting aside the
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judgment of the High Court in W.P. Nos. 23578 to
23617 of 1999 dated 7th July, 1999.
2. We may now briefly notice the relevant facts which
are necessary for the adjudication of the present
case. The Karnataka Industrial Areas Development
Board (hereinafter referred to as ‘appellant No.1)
had formed an industrial layout at Tarihal village in
the year 1983, pursuant to which, it invited
interested purchasers to make applications for
allotment of industrial sites. Pursuant to the same,
the respondents herein, applied for the allotment of
sites. It is a matter of record that the respondents
had applied for the allotment of sites at different
points of time. Consequently, the appellant issued
letters of intent, indicating that it had resolved to
allot all respondents the sites shown in their cause
titles at Tarihal Industrial Estate. The said letter
also indicated the tentative price at which the land
was sought to be allotted.
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3. In response to the offer made by the appellant No.1,
the respondents being desirous of purchasing their
respective plots indicated their willingness for the
abovementioned site. Accordingly, they affirmed
their interest to purchase the same. Thereafter, the
letters of allotment were issued in favour of the
respondents incorporating the terms and conditions
of allotment. Subsequent thereto, lease-cum-sale
agreements were executed in favour of the
respondents on their complying with conditions of
allotment.
4. One of the conditions mentioned in the lease-cum-
sale agreement reads thus:-
“7(b) As soon as it may be convenient the Lessor will fix the price of the demised premises at which it will be sold to the Lessee and communicate it to the Lessee and the decision of the Lessor in this regard will be final and binding on the Lessee. The Lessee shall pay the balance of the value of the property, if any after adjusting the premium and the total amount of rent paid by the Lessee, and earnest money deposit within one month from the date of receipt of communication signed by the Executive
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Member of the Board. On the other hand, if any sum is determined as payable by the Lessor to the Lessee after the adjustment as aforesaid, such sum shall be refunded to the Lessee before the date of execution of the sale deed.”
5. The lease-cum-sale agreement, entered into between
the Board and the respondents, contained
covenants that the respondents shall pay 99% of
the allotment price immediately and remaining 1%
in 10 equal yearly installments plus lease premium
alongwith the interest at 12.5%. The respondents
claim to have complied with all the stipulations and
the conditions incorporated in the lease-cum-sale
agreements. It seems that the appellants even after
a lapse of 11 long years did not execute the regular
sale deeds in favour of the respondents. On the
contrary, the appellants after a gap of 6 months
from the date of expiry of the lease period, issued
letters to the respondents, raising therein the
demands with regard to the final allotment price
and also directed the respondents to pay the
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balance of final allotment price within a stipulated
period. The appellants vide its Board meeting dated
18th September, 1997 resolved to fix the final price
of the land as follows:
Allotment made at the basic tentative rates as per acre (in Rs.)
Basic final prices fixed per acre (in Rs.)
1. 40,000/- 1.08 lakhs 2. 60,000/- 1.27 lakhs 3. 1.00 lakh to 1.25 lakhs 2.01 lakhs 4. 1.50 lakhs to 1.60 lakhs 2.61 lakhs
6. On receipt of the aforesaid demand, respondents
filed their objections individually putting forth their
grievances and declined to pay the increased
amount. It was contended by them that the final
allotment price was unreasonable, arbitrary, unjust
and contrary to what was legitimately expected and
assured by the appellant, i.e., only marginal
increase, based on the cost of land acquisition.
Pursuant to the objections filed individually by the
respondents, the appellant invited them to
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Bangalore for a discussion. According to the
respondents, during the course of discussions, they
had sought for the detailed break up, based on
which the enhanced claim was made. The board
had furnished them a statement showing the basis
for enhancement of the price. In the break–ups
statement, as provided by the appellant, it was
shown that Rs.34.17 lakhs were indicated to be the
cost of future development. The respondents having
expressed their inability to pay the hiked prices,
once again brought to the notice of the appellants
that the proposed enhancement was unjust and
arbitrary. Thereafter, the appellant No.1, on
consideration of the objections raised by the
respondents reduced the final allotment price
marginally and issued demand notices to the
respondents as follows:
Basic final prices fixed in the meeting held on 18.9.1997
Reduction in the final prices approved (Rs. in lakhs)
1. 1.08 lakhs 0.95 lakhs 2. 1.27 lakhs 1.10 lakhs 3. 2.01 lakhs 1.80 lakhs
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4. 2.61 lakhs 2.40 lakhs
7. Aggrieved by the same, the respondents filed a writ
petition W.P. No. 23578–23617 of 1999 before the
High Court of Karnataka at Bangalore and prayed
for a writ in the nature of certiorari for quashing the
letters enhancing the price and for a direction to the
appellant to execute the sale deeds on the basis of
the price indicated in the lease deed. The High
Court in its judgment dated 7th July, 1999
dismissed the writ petition. The Division Bench of
the High Court in writ appeal vide its final order and
judgment dated 18th February, 2003 allowed
the same and quashed the enhanced demands as
proposed by the appellant. Hence the instant
appeals by special leave before us.
8. We have heard the learned counsel for parties.
Ms. Kiran Suri, learned counsel appearing for the
appellants submits that the High Court committed a
grave error in holding that Clause 7(b) of the
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lease-cum-sale agreement doesn’t confer power on
the appellants to revise or alter the tentative price.
She submits that the appellant No.1 is an industrial
board established for the purpose of establishment
of industrial areas. Section 13 of the Karnataka
Industrial Areas Development Board stipulates
functions of the Board which includes establishing,
maintaining, developing and managing industrial
estates within industrial areas. Thus, power of
fixation of price of the land vested with the
appellant.
9. She further submits that enhanced price was fixed
after taking into consideration, the cost of
acquisition, the development expenditure, statutory
charges and interest. The price fixed at the time of
the allotment was only tentative since the
appellants could not foresee the quantum of land
acquisition compensation that would be fixed in
future. The price so fixed was uniform to all
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allottees. She further submits that the High Court
was not right in holding that the allottees of the site
in one industrial area cannot be regarded as
persons belonging to same class. The final price
fixed was much less than the actual market price
and hence the High Court erred in holding that it
was arbitrary, unjust and unfair. The appellant
No.1 was entrusted with the responsibility to
develop the industrial area as a whole and it had
nothing to do with any class of allottees. She also
submitted that the present matter was not one of
escalation of price but the fixation of the final price.
10. Learned counsel further submitted that the final
price fixation is in accordance with the allotment
letters issued to the respondents. As per the
allotment letter, the tentative price of the land had
been fixed at Rs.40,500/- per acre in Tarihal
Industrial Area. The allottees were to exercise
option with regard to the mode of payment of the
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purchase price. The letter clearly indicated that the
price was only tentative. The final price was fixed
taking into account the cost of acquisition,
development expenditure, statutory charges and
interest. On the basis of the above criteria, the cost
of land per allotable acre worked out approximately
to 2.61 lakhs per acre. Therefore, the break-ups of
the same was as follows:-
Rs. in Lakhs
a) Cost of acquisition 0.20 b) Development expenditure:
Already incurred (as on 31.12.96) Future development (as estimated on 31.12.96)
0.88 0.98
c) Statutory Charges: 0.23 d) Interest 0.32
2.61
Therefore, keeping the above cost per acre as the basis,
the appellant Board, at its Board Meeting dated
18th September, 1997 resolved to fix the final price of the
lands as follows:-
Allotment made at the basic tentative rates as per acre (in Rs.)
Basic final prices fixed per acre (in Rs.)
1. 40,000/- 1.08 lakhs
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2. 60,000/- 1.27 lakhs 3. 1.00 lakh to 1.25 lakhs 2.01 lakhs 4. 1.50 lakhs to 1.60 lakhs 2.61 lakhs
11. According to the learned counsel, the aforesaid
exercise carried out by the Board would clearly
indicate that the decision has been taken upon
consideration of all the relevant parameters for
determination of the final price. Learned counsel
further submitted that the respondents have
wrongly claimed that they had been allotted plots in
fully developed area. The development work had
just begun in 1982. These allotments have been
made at a heavily subsidized rate. The final price
has been fixed to put all allottees at par, irrespective
of the date, area/phase/segment of the allotment.
The development costs had been worked out as a
whole and the allottees had not been segregated
into separate groups. The respondents having
voluntarily entered into lease agreement can not
now be permitted to question the power of the
Board to fix the final price. She relied on Premji
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Bhai Parmar & Ors. Vs. Delhi Development
Authority & Ors. 1 and Centre for Public Interest
Litigation & Anr. Vs. Union of India & Ors. 2 .
12. The learned counsel further submits that it is a
settled proposition of law that price fixation is
beyond the scope of judicial review in writ petitions.
The High Court, therefore, exceeded its jurisdiction
in allowing the writ appeal in favour of the
respondents. She relied on the judgment of this
Court in the case of Meerut Development
Authority Vs. Association of Management
Studies.3 She then brought to our notice that if the
impugned judgment prevails then it would cause a
loss of Rs.1,66,000/- for allotment of every acre.
13. On the other hand, Mr. Basava Prabhu S. Patil,
learned senior counsel appearing for the
respondents submitted that the allotment letters
1 (1980) 2 SCC 129 2 (2000) 8 SCC 606 3 (2009) 6 SCC 171
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have been issued by the appellant Board in exercise
of its powers under Section 41 of the Karnataka
Industrial Area Development Act, 1966. Section 41
empowers the Board to make regulations consistent
with the Act and the Rules made there under, to
carry out the purposes of this Act. Sub-section
41(2) provides that the Board can make regulations
with regard to “(b) the terms and conditions under
which the Board may dispose of land”. In exercise
of this power, the Board has framed Karnataka
Industrial Area Development Board Regulations,
1969. Under Regulation 7, the Board has to notify
the availability of land for which applications may
be made by the intending purchaser. The notice
has to specify the manner of disposal, the last date
for submission of application and such other
particulars as the Board may consider necessary in
each case by giving wide publicity through
newspapers, having circulation in and outside
Karnataka State. Upon receipt of the applications,
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the allotment letter has to be issued in terms of
Regulation 10. According to the learned senior
counsel, the exercise of power with regard to the
fixation of price by the Board has to be within four
corners of the aforesaid statutory provisions. He
further pointed out that the lease agreement
between the applicants/lessee and the Board has to
be executed in terms of Form IV contained in the
third schedule. The Form is issued in terms of
Regulation 10(c). The form being statutory, it was
necessary to strictly comply with the aforesaid
provisions. However, in the contracts entered into
between the appellant Board and the allottees,
Clauses 7(a) and 7(b) have been introduced without
amending the applicable Regulations or Form IV.
Therefore, according to the learned senior counsel,
the final price fixation is without any statutory
basis. Learned senior counsel further submitted
that in calculating the final price, the respondents
have not only included the cost of land acquisition
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which is not disputed, but also included future
development costs and interest on investments.
According to the learned counsel, the Board had no
power to levy such amounts either under the
contract or under the regulations. Learned senior
counsel submitted that the difference between the
so called tentative price and the final price is
excessive and unquestionable. The increase in price
can not be said to be marginal as the allottees are
now required to pay double the amount which was
initially indicated. Under Clause 7 of the
Regulations, the appellants were required to fix the
final price as soon as possible. In the present case,
the price has been finalized after a period of 13
years.
14. Learned senior counsel further submitted that the
respondents were not entitled to such an arbitrary
increase in price. This itself shows that the decision
making process was totally flawed. The
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respondents had taken into consideration factors
which were not permissible under the Statute or the
Regulations. Thus, the decision has been rendered
arbitrarily. This is evident from the fact that a sum
of Rs.237.14 lakhs is sought to be calculated for
future development. Learned senior counsel
submitted that the Division Bench, considering the
entire issue has recorded the correct conclusions
and, therefore, does not call for any interference.
15. We have considered the submissions made by the
learned counsel. It is true that under Clause 7(b),
the Board reserved to itself the right to fix the final
price of the demised premises as soon as it may be
convenient to it and communicate the same to the
concerned lessee. Upon communication of the
price, the lessee is required to pay the balance of
the value of the site. Determination of the price by
the Board is binding on the lessee. In our opinion,
the aforesaid clause would not permit the Board to
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arbitrarily or irrationally fix the final price of the site
without any rational basis. The power of price
fixation under Clause 7 being statutory in nature
would have to be exercised, in accordance with
statutory provisions; it can not be permitted to be
exercised arbitrarily. Undoubtedly, as observed by
this Court in the case of Premji Bhai Parmar
(supra), Courts would not reopen the concluded
contracts. Ms. Suri had placed reliance on the
observations made by this Court in Paragraph 10 of
the judgment, which are as follows:-
“Pricing policy is an executive policy. If the Authority was set up for making available dwelling units at reasonable price to persons belonging to different income groups it would not be precluded from devising its own price formula for different income groups. If in so doing it uniformly collects something more than cost price from those with cushion to benefit those who are less fortunate it cannot be accused of discrimination. In this country where weaker and poorer sections are unable to enjoy the basic necessities, namely, food, shelter and clothing, a body like the Authority undertaking a comprehensive policy of providing shelter to those who cannot afford to have the same in the competitive albeit harsh market of demand and supply nor can afford it on their own meagre emoluments or income, a little more from those who can afford for the benefit of those who need succour, can by no stretch of imagination attract Article 14. People in the MIG can be charged more than the
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actual cost price so as to give benefit to allottees of flats in LIG, Janata and CPS. And yet record shows that those better off got flats comparatively cheaper to such flats in open market. It is a well recognised policy underlying tax law that the State has a wide discretion in selecting the persons or objects it will tax and that the statute is not open to attack on the ground that it taxes some persons or objects and not others. It is only when within the range of its selection the law operates unequally, and this cannot be justified on the basis of a valid classification, that there would be a violation of Article 14 (see East India Tobacco Co. v. State of A.P.). Can it be said that classification income-wise- cum-scheme-wise is unreasonable? The answer is a firm no. Even the petitioners could not point out unequal treatment in same class. However, a feeble attempt was made to urge that allottees of flats in MIG scheme at Munirka which project came up at or about the same time were not subjected to surcharge. This will be presently examined but aside from that, contention is that why within a particular period, namely, November, 1976 to January, 1977 the policy of levying surcharge was resorted to and that in MIG schemes pertaining to period prior to November, 1976 and later April, 1977 no surcharge was levied. If a certain pricing policy was adopted for a certain period and was uniformly applied to projects coming up during that period, it cannot be the foundation for a submission why such policy was not adopted earlier or abandoned later.”
16. In our opinion, these observations would not be
applicable in the facts of this case. The appellants
are required to fix the price within the stipulated
parameters contained in the Statute and the Board
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Regulations. Ms. Suri has also relied on a
judgment of this Court in the case of Indore
Development Authority Vs. Sadhana Agarwal
(Smt.) & Ors. 4 in support of the submissions that
since the allotment letters indicated only the
tentative price, the respondents could not demand
that they be allowed the sites at the original price.
In that case, this Court observed as follows:-
“Although this Court has from time to time, taking the special facts and circumstances of cases in question, has upheld the excess charged by the development authorities over the cost initially announced as estimated cost, but it should not be understood that this Court has held that such development authorities have absolute right to hike the cost of flats, initially announced as approximate or estimated cost for such flats. It is well known that persons belonging to middle and lower income groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results in great hardship when the development authorities announce an estimated or approximate cost and deliver the same at twice or thrice of the said amount. The final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements. With the high rate of inflation, escalation of the prices of construction materials and labour charges, if the scheme is not ready within the time-frame, then it is not possible to deliver the flats or houses in question at the cost so announced.
4 (1995) 3 SCC 1
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It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed. In the instant case the estimated cost for the LIG flat was given out at Rs 45,000. But by the impugned communication, the appellant informed the respondents that the actual cost of the flat shall be Rs 1,16,000 i.e. the escalation is more than 100%. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation. We may add that this does not mean that the High Court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High Court has to be satisfied on the materials on record that the Authority has not acted in an arbitrary or erratic manner.”
17. These observations make it clear that the High
Court has the jurisdiction to satisfy itself on the
material on record that the authority has not acted
in an arbitrary or erratic manner. In our opinion,
the High Court, in the present case, has not acted
beyond such jurisdiction. Ms. Suri then relied on
the case of Kanpur Development Authority Vs.
Sheela Devi (Smt.) & Ors. 5 In the aforesaid case,
this Court reiterated the jurisdiction of the High
5 (2003) 12 SCC 497
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Court to satisfy itself, that there was material on the
record to justify the escalation of cost of a
house/flat. The Court can take notice as to
whether the delay was caused by the allottee or the
authority itself. In our opinion, the judgment of the
High Court is within the parameters of the
jurisdiction vested in it under Article 226 of the
Constitution of India.
18. The Board being a State within the meaning of
Article 12 of the Constitution of India is required to
act fairly, reasonably and not arbitrarily or
whimsically. The guarantee of equality before law
or equal protection of the law, under Article 14
embraces within its realm exercise of discretionary
powers by the State. The High Court examined the
entire issue on the touchstone of Article 14 of the
Constitution of India. It has been observed that the
fixation of price done by the Board has violated the
Article 14 of the Constitution of India. It is correctly
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observed that though Clause 7(b) permits the Board
to fix the final price of the demised premises, it
cannot be said that where the Board arbitrarily or
irrationally fixes the final price of the site without
any basis, such fixation of the price could bind the
lessee. In such circumstances, the Court will have
the jurisdiction to annul the decision, upon
declaring the same to be void and non-est. A bare
perusal of Clause 7(b) would show that it does not
lay down any fixed components of final price.
Clause 7(b) also does not speak about the power of
the Board to revise or alter the tentative price fixed
at the time of allotment. The High Court has
correctly observed that Clause 7(b) does not contain
any guidelines which would ensure that the Board
does not act arbitrarily in fixing the final price of
demised premises. Since the validity of the aforesaid
Clause was not challenged, the High Court has
rightly refrained from expressing any opinion
thereon.
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19. Even though the Clause gives the Board an
undefined power to fix the final price, it would have
to be exercised in accordance with the principle of
rationality and reasonableness. The Board can and
is entitled to take into account the final cost of the
demised premises in the event of it incurring extra
expenditure after the allotment of the site. But in
the garb of exercising the power to fix the final
price, it can not be permitted to saddle the earlier
allottees with the liability of sharing the burden of
expenditure by the Board in developing some other
sites subsequent to the allotment of the site to the
respondents. The respondents have placed on
record sufficient material to show that acquisition
and development of land in the industrial area has
been in phases. Some areas and segments are fully
developed and others are in different stages of
development. Sites and plots have been allotted at
different times and locations. Thus, it cannot be
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said that all the allottees form one class. Earlier
allottees having sites in fully developed segments
cannot be intermingled with the subsequent
allottees in areas which may be wholly undeveloped.
Such action is clearly violation of Article 14. We
are also of the opinion that the Board can not be
permitted to exercise its powers of fixing the final
price under Clause 7(b) at any indefinite time in the
future after the allotment is made. This would
render the word “as soon as” in Clause 7(b) wholly
redundant. As noticed earlier, in the present case,
the Board has sought to fix the final price after a
gap of 13 years. Such a course is not permissible in
view of the expression “as soon as” contained in
Clause 7(b).
20. In our opinion, the High Court correctly concluded
that the fixation of final price by the Board is
without authority of law. It violates Article 14 of
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the Constitution of India being arbitrary and
unreasonable exercise of discretionary powers.
21. In view of the above, we find no merit in these
appeals. The appeals are accordingly dismissed.
……………………………..J. [B.Sudershan Reddy]
……………………………..J. [Surinder Singh Nijjar]
New Delhi April 06, 2011.
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