IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4489 of 2001 1. Dr. Ramji Prasad Ambastha, son of Late Braj Bhushan Sahay, resident of M.I.G. 130, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 2. Rajendra Prasad Sharma, son of Shri Ramawtar Sharma, resident of M.I.G. 79, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 3. Kishori Prasad, son of Late Khaderan Singh, resident of M.I.G.-106, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 4. Rameshwar Ram, son of Late Doman Ram, resident of M.I.G. 39, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 5. Naresh Sharma, son of Shri Jit Bahan Singh, resident of M.I.G.-45, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 6. Rameshwar Prasad, son of Shri Raghubir Dayal, resident of M.I.G.-52, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 7. Bans Raj Pandey, son of Late Baban Pandey, resident of M.I.G.-55, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 8. Ram Subhag Sharma, son of Chandradeep Sharma, resident of M.I.G.-57, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 9. Baikunth Narayan Singh, son of Shri Kal Bamb Narain Singh, resident of M.I.G.-58, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 10. Smt. Damyanti Devi, wife of Shri Amir Pd. Singh, resident of M.I.G.-89, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 11. Alak Niranjan Prasad, son of Shri Raj Narain Lal, resident of M.I.G.-71, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 12. Krishna Kumar Sinha, son of Late Bindeshwari Pd. Lal, resident of M.I.G.-53, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 13. Urmila Sinha, wife of Late Mani Mohan Sinha, resident of M.I.G.-72, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 14. Malti Singh, wife of Shri Madan Mohan Singh, resident of M.I.G.-46, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 15. Kedar Prasad Singh, son of Sri Laxman Pd. Singh, resident of M.I.G.-49, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 16. P.K. Sinha, son of Late Ramdeo Prasad, resident of M.I.G.-139, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 2 17. Smt. Gunjeshwari Devi, wife of Janeshwar Singh, resident of M.I.G.-87, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 18. Mritunjay Nath Singh, son of Shri Seo Data Pd. Singh, resident of M.I.G.-28, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 19. Dhananjay Nath Singh, son of Shri Sheo Dutta Pd. Singh, resident of M.I.G.-107, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 20. Jitendra Kumar, son of Shri Indradeo Singh, resident of M.I.G.-189, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 21. Madan Mohan Prasad Singh, son of Shri Parash Nath Singh, resident of M.I.G.-60, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 22. K.P. Sharma, son of Shri Ambika Singh, resident of M.I.G.-83, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 23. Chanda Pandey, wife of Shri Upendra Nath Pandey, resident of M.I.G.-82, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 24. Jagdish Ram, son of Shri Ram Balak Ram, resident of M.I.G.-30, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 25. Deo Narain Pathak, son of Shri Nageshwar Pathak, resident of M.I.G.-127, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 26. Ramanugrah Sharma, son of Shri Braj Nandan Singh, resident of M.I.G.-58, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 27. Basant Narain Singh, son of Shri Nandi Pati Singh, resident of M.I.G.-63, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 28. Shivdeo Singh, son of Shri Jagdeo Singh, resident of M.I.G.-41, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 29. Shashi Bhushan Prasad, son of Shri Dineshwar Prasad, resident of M.I.G.-40, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 30. Smt. Manju Mishra, wife of Shri Sureshwar Mishra, resident of M.I.G.-80, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 31. Chhotu Sao, son of Shri Bhikan Sao, resident of M.I.G.-70, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 32. B.P. Gupta, son of Shri R.P. Gupta, resident of M.I.G.-70, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 33. Satya Narain Sao, son of Shri Bishnu Sahu, resident of M.I.G.-36, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 3 34. Ahmad Navi Khan, son of Late Chedan Navi Khan, resident of M.I.G.-167, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 35. Harishankar, son of Shri Narain Pd. Singh, resident of M.I.G.-123, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 36. Mundrika Paswan, son of Shri Narain Paswan, resident of 141, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 37. Kewal Ram, son of Late Ram Lal Choudhary, resident of M.I.G.-146, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 38. Dharma Nath Singh, son of Shri Nandi Pati Singh, resident of M.I.G.-131, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 39. Ram Janam Singh, son of Shri Ram Briksha Singh, resident of M.I.G.-149, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 40. Rajiv Ranjan Prasad, son of Shri Braj Bhushan Sinha, resident of M.I.G.-138, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 41. Gopal Das Raitani, son of Late Lila Ram, resident of M.I.G.-176, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 42. Smt. Chandrakali Devi, wife of Late Gaya Prasad, resident of M.I.G.-140, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 43. Binod KIumar, son of Shri Jai Ram Singh, resident of M.I.G.-143, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 44. Smt. Meena Kumari, wife of Shri Ram Chandra Prasad, resident of M.I.G.-112, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 45. Smt. Kiran Singh, wife of Shri Bijendra Prasad Singh, resident of M.I.G.-129, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 46. Uma Pandey, wife of Shri Rabindra Nath Singh, resident of M.I.G.-137, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 47. Ashok Kumar Singh, son of Shri Ram Prasad Singh, resident of M.I.G.-154, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 48. Chhote Narain Singh, son of Late Ram Lal Singh, resident of M.I.G.-102, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. 49. Satish Kumar, son of Ramdeo Singh, resident of M.I.G.-43, Saheed Bhagat Singh Colony, P.S.- Rampur, District- Gaya. ……………………………………………………. Petitioners Versus 1. The Bihar State Housing Board through its Managing Director, 6, Mangles Road, Patna. 4 2. The Chief Engineer, Bihar State Housing Board, 6, Mangles Road, Patna. 3. The Estate Manager, Bihar State Housing Board, 6, Mangles Road, Patna. 4. The Superintending Engineer, Bihar State Housing Board, in-charge, Gaya Circle, Bahadurpur, Patna. 5. The Executive Engineer, Bihar State Housing Board, Gaya Division, A.P. Colony, Gaya. 6. The District Magistrate, Gaya. ……………………………………………………… Respondents. ----------- 18 29/1/2009 Heard Mr. Tarakant Jha, learned Senior counsel appearing on behalf of the petitioners and Mr. R.S.Pradhan, learned Senior counsel assisted by Mr. A.K. Ojha, appearing on behalf of the Bihar State Housing Board. In this writ application the petitioners have assailed the order dated 25.1.2001 as contained in Annexure-20, whereby and whereunder, a Committee which was constituted under the direction of this Court had held that the price of the flats/houses allotted to the petitioners did not suffer from any anomaly and that the plea of the petitioner as against such price fixation was wholly untenable. In order to appreciate the aforesaid decision of the committee one has to notice certain events which had taken place in the past. The petitioners had been allotted houses by the Bihar 5 State Housing Board in the town of Gaya some time in the year 1991. At that point of time for 190 flats/houses in all the Housing Board had only charged the tentative price of Rs. 1,27,494/- by way of provisional cost by keeping its right reserved by virtue of clause both in the letter of allotment and agreement that such provisional cost could be revised in certain eventualities. Subsequently, in 1992 enhancement of cost was intimated to the petitioners being Rs.1,78,326/- for 166 flats and Rs.1,57,491/- for remaining 24 flats respectively. Such demand made by the Housing Board at the aforementioned price was, however, challenged before this Court by some of the petitioners of this case, in C.W.J.C. No.10888 of 1992 and a Division Bench of this Court after considering all aspect of the matter had disposed of that writ application by quashing the demand notices in the following terms:- “This Court in Citizens cause, Ranchi Vrs. The Bihar Housing Board and others (1992) (40) (1) PLJR 367 has held that the price is to be determined on the date when the lottery is held. In 6 this case, lottery was held on 5.1.1991 and as such the price in this case should also be fixed on the date as it was on 5.1.1991 when lottery was held. The Board has not specifically stated as to which the dwelling units were completed. In such a situation, we are of the view that the dwelling units were completed prior to the date of holding of lottery and as such it is just and proper that the price should be fixed as it was in January, 1991. Accordingly, this application is allowed and the demand notices issued against the petitioners, specimen of which have been annexed as Annexures-9 series wherein the price was fixed as it were on 16.3.1992, are quashed and the Board is directed to fix the price of the dwelling units after taking into consideration the actual cost and other expenses including interest as it was on the date of holding of lottery, i.e, on 5.1.1991. After the amount is determined, the demand notice should be served upon the petitioners in terms of the regulations of the Board and allottees should be directed to deposit the amount so that the other formalities may be completed soon.” It is not in doubt that pursuant to the aforementioned order of the Division Bench fresh exercise was undertaken by the Housing Board and the petitioners were communicated the revised price which was slashed in the case of group of 166 houses/flats with regard to earlier price 7 of Rs.1,78,326 to Rs. 1,59,620/- and 24 flats/houses of which earlier price was at Rs. 157,491/- to Rs.1,10082/-. On the basis of said revised and reduced price when the Board had issued demand notice the petitioners had again moved this Court by assailing the revised/reduced price, but this Court instead of deciding the matter had remitted the matter back to the three men committee in lieu of the earlier decision taken by the Division Bench. The order dated 6.1.1998 passed in C.W.J.C. No. 11620 of 1997 (Annexure-12) to the aforesaid effect in fact had bound the parties for accepting the decision of the committee in the following terms:- “Having heard to the prayer made in this writ application, learned counsel appearing on behalf of the parties submits that the entire dispute may be referred to the Committee constituted by the Housing Board pursuant to the direction made by this Hon’ble Court in C.W.J.C. No.2724/94. It is submitted that accordingly a committee has been constituted for determining price etc. of the house allotted to the various allottees. As prayed for, let the entire matter be referred to the Committee who will decide the matter as early as possible, preferably within three months from the date of receipt/production of the copy of the order. It goes without saying 8 that the decision taken by the Committee shall be binding upon the parties. Learned counsel for the parties submit that the petitioners to comply with the directive made in Annexure-14, subject to the final result of the Committee pursuant to the direction of the High Court. Learned counsel for the petitioners agreed to pay the instalments as demanded by the Board through Annexure-14 subject to the result of the Committee.” At this place it would be also necessary to reproduce the directions given by this Court in the order dated 20.10.1995 in the leading case C.W.J.C. No.2424 of 1994, on the basis of which actually the aforesaid directions were issued in the case of some of writ petitioners on 6.1.1998 in C.W.J.C. No. 11620/1997 for referring the dispute to the Committee. This Court in the aforesaid order dated 20.11.1995 had held as follows: - “Having heard the parties, according to me, it is not possible under the writ jurisdiction to come to a definite conclusion as to in which circumstances the price of the flats were raised. It is also not possible for this Court, under writ jurisdiction, to decide the extent of failure on the part of one or other party and then to calculate as to what should be the actual cost to be paid by one of other party for their respective flats. However, a general hike in 9 the cost of the flats cannot be made on the ground that one or other person failed to deposit any amount, though it is always open to the Respondents-Board to charge more amount from a person, who failed to deposit installments in time, and thereby to increase the cost of the flats of that particular person. So far as the persons who have deposited the amount in due time, no hike can be made with respect to their flats till it is shown that delay in completion of such flats took place because of some unavoidable circumstances like; order of stay passed by this Court and/or escalation in the matter of cost of materials and/or increase in acquisition cost of the land, which were beyond the control of the Respondents-Board. However, it appears that dispute in all such types of cases will continue to remain and the aggrieved person will be left without any efficacious remedy, other than fighting out a long battle in a suit. For the said reason, it is desirable to evolve some alternative forum to resolve the dispute of allottees like the petitioners, for which some sort of Tribunal and/or forum should be created by the State and/or by the Respondents-Board itself. Such Tribunal and/or authority is to take into consideration various factors and then to decide the dispute as to what should be the hike, if any, in such type of cases. For resolving such dispute, they will have to look into the following factors: (i) What was the fund that was taken as a loan by the Respondents-Board from HUDCO for construction of such flats and at what rate of interest; (ii) What was the time limit fixed for completion of such 10 flats and what cost was fixed by the Respondents-Board, for each flat, on the basis of such time framed; (iii) What was the reason for enhancing the cost price of the flat(s) and; (iv) If the reason for enhancement of cost price of flats is because of delay in construction of a flat, for which the Respondent-Board is to pay more interest to HUDCO, in that case, to decide as to for whose laches, such delay took place. If the laches were beyond the control of the Respondents-Board, in that case, the rise relating to flats can be made in general to be charged from each and every allottee. On the other hand, if the delay took place because of laches in making payment of instilments on the part of one or other allottee, such additional price should be added in the cost of flat(s) allotted in favour of one other such allottee, who failed to deposit the installments in time, to the extent they are liable. Accordingly, without deciding the merit of the claim of one or other party, I direct the Respondents- State of Bihar to constitute an appropriate Tribunal/or forum to decide such type of disputes, within a period of six months from the date of receipt/production of a copy of this order. On the other hand, if the Respondent-State of Bihar, for some reason or other is not in a position to constitute any such Tribunal/forum to decide such dispute, the Respondents-Board and its authorities are directed to vest such power with one or other committee, which will look into the matter and decide the dispute. In such case, one of such member should be a person having knowledge of Accountancy. Such power is to be 11 vested with some Committee by the Respondents-Board, within a period of one year, if no Tribunal and/or forum is constituted by the Respondents-State of Bihar. The petitioner will thereafter raise their grievances before such Tribunal/forum or Committee.” It is not in dispute that pursuant to the aforesaid direction of this Court dated 6.1.1998 the petitioners having formed an association had appeared before the Committee and had placed their case. From the impugned order passed by the Committee it would transpire that the only challenge by the petitioners was against the revised price by raising a plea there was obvious discrepancy in notifying the price of same type of flats/houses at two different rates. As noted above, the price of 24 flats was earlier fixed at Rs.1,27,494/- and the same was slashed to Rs.1,01,800/-, whereas, remaining 166 flats/houses of the same type the price fixed at Rs. 1,70,376/- was reduced to Rs. 1,57,106/-. It was on the basis of basically this difference in the price that the petitioners and/or their Association 12 before the three men committee had claimed that the price fixed were not in terms of the earlier order of the Division Bench, i.e, the price as prevailing on 5.1.1991. The Committee had gone into whole aspect of the matter with the help of the materials and records as furnished by the officials of the Board who had justified that whereas 24 flats/houses of the same type were constructed from the loan financed by the State Government on lower rate of interest to the Housing Board, the remaining 166 flats/houses were constructed from the loan taken by the Housing Board from HUDCO on higher rate of interest. Consequently, the decision of the committee in the impugned order (Annexure-13) did not find any anomaly in the price fixation as shown by the Board in terms of the Division Bench judgment of this Court by reaching to the conclusion of liability of the Board with reference to the terms and conditions of HUDCO loan vis-à-vis loan of the State Government in the following words:- “Having heard the parties, we are of the opinion that the said 190 13 MIG Houses were constructed by the Board under two different schemes by obtaining loan from two different institutions on certain terms and conditions, quite different from each other and especially in view of the fact that the cost/price was determined by the Board on “AS IS HERE IS BASIS” there is neither any discrimination nor any arbitration on the part of the Board in determining the same and accordingly, we reject the petition filed on behalf of the petitioner-SANSTHA.” The petitioners have now assailed the aforementioned decision of the Committee and their challenge can be safely confined to only one paragraph of the writ application, i.e, paragraph 40 which reads as follows:- “That the order passed by the Committee which was constituted pursuant to the direction of this Hon’ble Court is per-se arbitrary and illegal and is fit to be quashed, in as much as, the same has been passed in utter disregard of the directions of this Hon’ble Court passed in C.W.J.C.No.10888 of 1992 and C.W.J.C.No.47/1994 with C.W.J.C.No.2724 of 1994, disposed of on 1.4.1994 and 20.10.1995 Annexures 4 and 11 to this writ application respectively.” There is no averment in the writ petition nor any material has been placed before this Court to question the finding of the Committee and in fact nothing has 14 been shown that either the plea of the Board with regard to taking of the loan for 166 houses from the HUDCO and for 24 houses from the State Government was incorrect. The quantum of interest charged by the State Government and the HUDCO have also not been in any manner assailed by the petitioners. In fact the petitioners have also not suggested as to what could have been the actual price of the flats in question as on 5.1.1991. Mr. Tarakant Jha, learned Senior counsel appearing on behalf of the petitioners has however tried to project his case by relying paragraph 14 of the writ application. In the opinion of this Court, paragraph 14 by itself would go to show that the price which was shown was a tentative price and in any event the same did not remain in existence. In this context one has to refer the terms and conditions of the agreement between the petitioners and the Housing Board which in no uncertain terms had bound the petitioners to pay not only the tentative price as communicated to the petitioners 15 for giving possession but also any price revision which could be effected on account of revision in price of land/building materials including component of interest of loan taken by the Housing Board for construction of these 190 flats/houses in Gaya. In that view of the matter, if the prices were fixed by the Housing Board by slashing the amount from Rs.1,78,336/- to Rs.1,59,600/- or from Rs. 1,27,492/- to Rs.1,01,800/- the same cannot be questioned by the petitioners in absence of any valid material. Admittedly, no such material had been produced by them even before the Committee and nothing has also been brought before this Court to assail the aforesaid findings of the Committee. The jurisdiction of the High Court under Article 226 of the Constitution in the matter of price fixation is very limited. This Court, in fact, cannot go into controversial or disputed question of facts and has to proceed on the basis of certain parameters as set out in the original price fixation policy. 16 The Supreme Court in the case of „Prag Ice and Oil Mills Vs. Union of India‟, reported in AIR 1978 SC 1296 has held that “In the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of persons, the procedural basis of price fixation has to be accepted in the generality of cases as valid.” The said law laid down by a Constitution Bench of the Apex Court has in fact been followed without exception and in this connection the reference can be made to the subsequent judgment of the Apex Court in the case of „Rohtas Industries Vs. Bihar State Electricity Board‟, reported in AIR 1984 SC 657, and in the case of „Kerala State Electricity Board Vs. M/S S.N.Govind Prabhu & Brothers‟, reported in AIR 1986 SC 1999. The matter relating to price fixation was again reviewed by the Apex Court in the decision of „Shri Sitaram Sugar Company Limited Vs. Union of India‟, reported in 17 (1990) 3 SCC 223 which having followed the earlier judgment of the Apex Court in the case of „Saraswati Industrial Syndicate Limited Vs. Union of India‟, reported in AIR 1975 SC 460 and in the case of „Union of India Vs. Cynamide India Limited‟, reported in AIR 1987 SC 1802 had held that the price fixation is not function of the writ Court. In the light of the aforementioned judgments when it is found by this Court that there is absolutely nothing to show in the present case that the rate of interest charged either by the State Government or by the HUDCO from the Housing Board as projected and placed by the Housing Board before three men committee were incorrect or the price so fixed was based on any irrelevant consideration of any extraneous impermissible component of price. As a matter of fact the permissibility of taking into account the higher rate of interest of HUDCO was specifically approved by this Court in the order dated 20.11.1995 in C.W.J.C. No. 2724 of 1994. 18 Thus it can not be even remotely established much less proved by the petitioners that the impugned decision of the Committee was in teeth of the directions of this Court. That being so, this court must hold that the decision taken by the