ORDER
1. In pursuance of advertisement issued by U.P. Avas Evarn Vikas Parishad Lucknow (hereinafter referred to as the Parishad) the petitioners of these writ petitions got themselves registered with the Parishad after paying registration fee etc. for purchasing various types of houses to be constructed by the Parishad under various schemes such as self financing scheme, hire-purchase scheme etc. At the time of registration the petitioners were given brochure containing terms and conditions for purchasing houses under various schemes of the Parishad to which they agreed by consent letters.
Some of these terms and conditions are as follows :--
(i) Cost of the houses as shown is only approximate and it may increase or decrease after construction of the houses.
(ii) If the payment is not made within the specified period the defaulter is liable to pay 18% additional interest.
(iii) If there is default in making the payment for a period of six months, the registration shall come to an end automatically.
(iv) Under the ordinary circumstances the houses will be allotted within two years from the date of registration, but the Parishad will neither be responsible for the delay in the construction nor would be liable to pay any interest on the amount already deposited.
(v) In the matter of registration and allotment of house, the Housing Commissioner will have full power to relax any of the terms and conditions contained in the Brochure and his decision will be final.
2. In accordance with these terms and conditions, the petitioners have entered into agreement with the Parishad for purchasing houses under Self-financing scheme or Hire-purchase scheme and are required to make the payments according to the schedule fixed by the Parishad. The Parishad has now issued letters to the petitioners requiring them to deposit the prices of the houses allotted to them. The price, which is sought to be recovered by the Parishad is much higher than the price shown in the brochure. The petitioners have filed these writ petitions challenging the enhanced prices of the houses and have prayedfor quashing the letters/orders of the Parishad, increasing prices of the houses and for writ in the nature of mandamus commanding the Parishad to make the allotment without effecting the impugned enhancement.
3. At the admission stage the Parishad has filed counter-affidavit and petitioners have filed rejoinder affidavit and these writ petitions are being disposed of finally in accordance with rules of the Court. As the question involved in these writ petitions are the same they are being decided by a common judgment.
4. Relying on a judgment of Hon'ble Supreme Court in case Bareilly Development Authority v. Ajai Pal Singh (AIR 1989 SC 1076), learned counsel for the Parishad has argued that relationship between the petitioners and Parishad are governed by non-statutory contract and as such writ petition is not maintainable. In the case of Bareilly Development Authority (supra) dispute before Hon'ble Supreme Court was identical having similar terms and conditions as contained in the brochure in the instant case and the writ petitions were filed after Bareilly Development Authority has asked the allottees to pay enhanced price. The Hon'ble Supreme Court observed that at page 1081 & 1082:
"it is clear that all the respondents who have sent their applications for registration with initial payment only after having fully understood the terms and conditions of the brochure inclusive of the clauses 12 and 13 and notes 1 and 2 of the General Information Table as per which the BDA has reserved its right to change, enhance or amend any of the terms and or conditions as and when felt necessary and also the right to relax any of the conditions at its discretion, and that the cost shown in the column 4 of the brochure was only estimated cost subject to increase or decrease according to the rise or fall in the price at the time of completion of the property. This is not only the case of the applicants of MIG scheme but also of the other applicants falling under the other catagories i.e. HIG, LIG and EWS. So it cannot be said that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the BDA on the strength of which all the applicants falling under the various catagories applied and got their names registered. In such circumstances the respondents cannot be heard to say that the BDA has arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents."
It was further observed that at page 1083:--
"Even conceding that the BDA has the trappings of a State or would be comprehended in 'other authority' for the purpose of Art. 12 of the constitution, while determining price of the houses/ flats constructed by it and the rate of monthly instalments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field.
There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Art. 226 of the constitution of India so as to compel the authorities to remedy a breach of contract pure and simple : Radhakrishna Agarwal v. State of Bihar (1977) 3 SCR 249 (AIR 1977 SC 1496) Premji Bhai Parmar v. Delhi Development Authority (1980) 2 SCR 704 : (AIR 1980 SC 738) and DFO v. Bishwanath Tea Company Ltd. (1981) 3 SCR 662 : (AIR 1981 SC 1368).
In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Art. 226 of the constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/ flats and the rate of monthly instalments and giving directions in the writ petition as prayed for"
In the instant case the relationship between the parties are governed by non-statutory contract and as such in view of the law laid down by Hon'ble Supreme Court in case of Bareilly Development authority (supra) these writ petitions are not maintainable, and the only remedy left to the petitioners is to file suit in civil court for necessary reliefs.
5. Sri Ashok Khare, learned counsel for the petitioner in writ petition No. 16672 of 1988, has however, argued that in view of decision of the Hon'ble Supreme Court in two . subsequent cases of M/s. Dwarkadas Marfatia and sons v. Board of Trustees (AIR 1989 SC 1642) and Mahabir Auto Stores v. Indian Oil Corporation (1990 (1) Judgment Today 363) : AIR 1990 SC 1031 the writ petition against the action of public body or statutory authority is maintainable even if the relationships are governed by non-statutory contract. It is not possible for us to agree with the learned counsel. In the case of M/s Dwarkadas Marfatia and Sons (supra) the Board of trustees, as owner of the property, had evicted a tenant in pursuance of a policy framed by it for developing its property in accordance with Town Planning Scheme whereunder the plots are to be allotted to the persons who were holding major portions thereon. The question before Hon'ble Supreme Court in this case was whether the action of the Board in evicting a tenant and granting the possession to another person was legal and justified. The Hon'ble Supreme Court held that conduct of the Board is not matter of contract pure and simple, and as such their actions are subject to rules of law and they cannot act arbitrarily. Relevant extract from para 24 are quoted below :
"The field of letting and eviction of tenants is normally governed by the Rent Act. The port trust is statutorily exempted from the operation of the Rent Act on the basis of its public/governmental character. The legislative assumption or expectation as noted in the observations of Chagla, CJ. in Rampratap Jaidayal's case (AIR 1953 Bom 170) (supra) cannot make such conduct a matter of contract pure and simple. These corporations must act in accordance with certain constitutional conscience and whether they have so acted, must be discernible from the conduct of such corporations."
The Hon'ble Supreme Court upheld the action of the Board on the ground that it had evicted the tenant in pursuance of its policy whereunder plot was to be allotted to a person holding major portion thereon and the policy was found to be fair and reasonable. In this case the Board of Trustees were not acting' under any concluded non statutory contract between the parties and have, on the other hand, taken action under a policy formulated by it for developing the property in accordance with Town Planning Scheme. In these circumstances the Hon'ble Supreme Court observed that the principle of Art. 14 of the constitution of India are to be applied to the actions of the Board.
6. In the other case of Supreme Court in Mahabir Auto Stores (supra) AIR 1990 SC 1031 the Indian Oil Corporation had stopped supply of all kinds of lubricants to its dealer after about 18 years on the ground of change of policy. In this case also the relationship was not governed by any concluded contract between the parties and the appellant therein had been treated as dealer and was supplied lubricants by the Indian Oil Corporation on orders, received from him. Supreme Court held that the course of transaction over about 18 years should not have been brought to an end on the ground of change of policy without taking the dealer into confidence. Relevant passage of the judgment is quoted below at page 1039 :
"It appears to us that in respect of corporation like IOC when without informing the parties concerned, as in the case of the appellant firm herein on alleged change of policy and on that basis takes action to seek to bring to an end the course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence."
The Supreme Court accordingly directed the respondent Corporation to consider afresh the submission of the appellant namely that existing arrangement amounts to a contract by which distributorship was continued without any formal contract and further that new policy of the government would not cover the appellant firm and as such he is entitled to supply of all the lubricants. The aforesaid decisions do not help the petitioners as in both the cases of Dwarkadas Marfatia & Sons and Mahabir Auto Stores the impugned decision of the authorities were taken under a new policy and the relationship between the parties were not governed by any concluded contract.
7. Sri Dinesh Dwivedi, learned counsel for the petitioner in writ petition Nos. 6264 of 1988 and 17831 of 1988, has argued on similar lines, supporting maintainability of writ petition. For that purpose he has relied on Mahabir Auto Stores v. Indian Oil Corporation (1990 (1) Judgement Today 363), Gujarat State Financial Corporation v. M/s Lotus Hotels Pvt. Ltd. (AIR 1983 SC 848) Sri Anadi Mukta Sadguru S.M.V.SJ.M.S. Trust v. V. R. Rudani (AIR 1989 SC 1607) and D.F.O. v. Ram Sanehi (AIR 1973 SC 205).
8. In none of the aforesaid cases there was non statutory concluded contract between the parties. We have already discussed the judgment of Hon'ble Supreme Court in Mahabir Auto Stores case (supra) while dealing with the submission of Sri Ashok Khare. The case of Shri Anadi Mukta Sadguru deals with different controversy. In this case also parties did not make any claim under any statutory concluded contract. In M/s. Lotus Hotels Pvt. Ltd. case the Hon'ble Supreme Court granted relief on the ground of promissory estoppel and also on the ground that Financial Corporation has entered into statutory contract, as is clear from paras 11 and 12 of the Judgment. Similarly in the case of Ram Sanehi High Court in Special Appeal held that D.F.O. has passed the impugned order in exercise of statutory authority and this was upheld by Hon'ble Supreme Court. Relevant extract of the judgment is quoted below at page 206 :
"But in the present case the order is passed by a public authority modifying the order or proceeding of a subordinate forest authority. By that order he has deprived the respondent of a valuable right...... There can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power."
What was challenged in Ram Sanhei case was an order of an authority invested with statutory power. Supreme Court in M. Radhakrishna Agarwal v. State of Bihar, (AIR 1977 SC 1496) has observed that the order impugned in Ram Sanehai case was passed in exercise of statutory power. Relevant passage from this decision is quoted below at page 206 D :
"The authorities cited were : the D.F.O. South Kheri v. Ram Sanehi Singh, AIR 1973 SC 205 (supra) all that was decided, relying upon K. N. Guruswamy v. State of Mysore, AIR 1954 SC 592 (supra) was that where the source of a right was contractual but the action complained of was the purported exercise of a statutory power, relief could be claimed under Art. 226."
9. In the present case the contract between the parties is non-statutory. The learned counsel for the petitioner could not point out any basis for treating the terms and conditions of the contract as statutory. As the dispute in the instant case relates to realm of non statutory contract the writ petition is not maintainable and proper forum for adjudication of such disputes is Civil Court. The controversy involved in these petitions stands decided by Supreme Court in Bareilly Development Authority (supra) where on similar facts it was laid down that after the State and a citizen has entered into a non statutory contract, their relations are to be governed by terms and conditions of the contract and not by constitutional provisions, and for enforcement of contractual right the writ petition is not maintainable. These writ petitions, as such, are liable to be dismissed.
10. Sri Ashok Khare has raised additional grievance against the imposition of additional interest at the rate of 18 percent and for this purpose has placed reliance on a Division Bench Judgment (LKO) 1990 All LJ 760 in writ petition No. 1179 of 1987 Ravi Kumar Anand v. Avas Evam Vikas Parishad, decided on Feb. 7, 1990. Under condition No. 8.2 the Parishad is entitled to impose additional interest at 18% if an allottee has not made payment for certain period. The case of the Parishad is that the petitioner failed to make the payment within time stipulated in the aforesaid condition, the Parishad is fully justified in charging the additional interest and this has been done in exercise of rights under contract entered into between the petitioner and the Parishad. It is true that the Parishad has right under the contract to charge additional interest at 18%, in case there is default by the allottee in making the payment for certain period. But the grievance of the petitioner that the Parishad itself has caused considerable delay in constructing the houses resulting in escalation in price, cannot be rejected outright and cannot be said to be without substance, even though the Parishad may have its own justification for delay in construction of the houses. But as the Parishad is charging additional interest under terms and conditions of the contract, it is not possible for us in exercise of our power under Art. 226 of the constitution of India to give any relief to the petitioner. However, the petitioner is not remediless and apart from remedy of suit being available to him the petitioner has another remedy condition 9-8 whereunder the Housing Commissioner has been empowered to relax any of the conditions and his decision has been declared to be final. The reason behind condition No. 9-8 empowering the Housing Commissioner to relax any condition is to redress the genuine grievance of the allottees and remove unnecessary hardship and loss which might be caused to them, if strict compliance of the conditions is adhered to. The petitioner can approach the Housing Commissioner and explain difficulties and the circumstances including his own financial position and if such a representation is made by the petitioner before the Housing Commissioner, we are sure he will consider it sympathetically, taking into account the financial hardship of the petitioner and the delay caused in construction of the houses, resulting in escalation of the price. The Division Bench of this Court in case of Ravi Kumar Anand (supra) while dismissing the writ petition has made the following observations regarding similar conditions relating to the power of Housing Commissioner to relax any of the conditions of the contract :
"The default of the weaker persons, having several responsibilities and commitments is not to be viewed very strictly, and they are entitled to relaxation. Those who are clear defaulters and despite the fact that they got possession of the house and yet committed default without any explanation, obviously, may not be at the par.
We are of the view that in view of the fact that the initial responsibility is on the Avas Evam Vikas Parishad, the relaxation clause should be exercised by the Avas Evasm Vikas Parishad in favour of house seekers in the matter of interest and penalty.
We respectfully agree with the aforesaid observations of the Division Bench.
11. Sri Dinesh Dwivedi has also raised additional grievance about the interest on the ground that it is being charged without there being any justification under the contract. As it is not possible for us to interfere in these matters under Art. 226 of the constitution of India we cannot grant any relief even if the grievance of the petitioner is justified. It is, however, open to the petitioner to file the suit and or approach the housing commissioner in this regard, who may pass appropriate order, looking into the facts and circumstances of the case.
12. Sri S. K. Vidyarthi, learned counsel for the petitioner in writ petition No. 4510 of 1988, has argued that his client is ready to pay the instalments fixed by the Parishad and has requested for appropriate directions to the Parishad for accepting the instalments. As admittedly there has been default in making payment of instalments, no direction under Art. 226 can be issued to the Parishad in favour of the petitioner. It is, however open to the petitioner to file the suit and or to make a representation to the Housing Commissioner regarding the same explaining the circumstances and his own difficulties, who will consider the same and pass appropriate orders.
13. With these observation the writ petitions are dismissed. However, in view of facts and circumstances of the case there will be no order as to costs.
14. Petitions dismissed.