1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 502 OF 1999 ... Bandra High Phase III Co.op. Housing society Union Ltd. And Anr ...Petitioners v/s. Bombay Housing & Area Development Board and 3 others. ...Respondents ... Mr.V.P.Sawant for the Petitioners. Mr.G.W.Mattos, AGP for Respondents Nos.1 to 4. ... CORAM: D.K.DESHMUKH, & R.G.KETKAR, JJ DATED: 15th October, 2009 P.C.: At the request of the learned Counsel for the Petitioners, the names of Respondents Nos.6 to 8 are permitted to be deleted. 2 1. By this petition, a Co.operative Housing Society challenges the action of the Respondents Nos. 1 to 3 demanding Rs.41,000/- per gala from the allottees in Building Nos. 24 to 28 and an amount of Rs.35,500/- per gala from the allottees in Building Nos.29 & 30. 2. The relevant facts are that the Respondents issued an advertisement dated 25th August, 1986 inviting the applications for allotment of residential galas which were under construction for Middle and Higher Income Group. So far as middle income group is concerned, the approximate sale price of the gala was shown at Rs.2,94,000/- and so far as Higher Income Group is concerned the approximate price of the Gala was fixed at Rs.4,82,500/-. At that time buildings were under construction. The construction of the 3 building was completed in May, 1998 and pursuant to that advertisement, Galas were allotted to the Higher Income Group in June/July, 1988. The total price deposited was Rs.4,82,500/-. The possession of the Galas were given to the Higher Income Group in September, 1988. The allottees, thereafter, formed the society. According to the Petitioners, in the year 1992 the Respondents started demanding increase in the price of the galas. There was a meeting held between the representatives of the Respondents and the representatives of the society. According to the Petitioners, in that meeting the Petitioners were informed that the sale price of their galas has been revised because the sale price in the advertisement was mentioned taking into consideration the profit element at 25% and now the Respondents have decided to change 4 the policy about profit element and now profit to be claimed is 50%. The case of the Petitioners is that as per the terms and conditions which accompanied the advertisement, the approximate price which is mentioned in the advertisement can be increased by the Respondents only if the expenditure of works including interest on the amount of loan taken by the authority and the expenditure incurred on supervision has increased. According to the Petitioners, for no other reasons the price can be revised. The Petitioners, therefore, claim that the increase in price by the authorities/Respondents is without authority of law. 3. Though the Respondents have been served and they are represented by lawyer, they have chosen not to file any affidavit in 5 reply. 4. We have heard the learned Counsel appearing for the Petitioners, who took us through the record and submitted that considering the terms and conditions accompanying the advertisement, the increase in the sale price is without authority of law. The learned Counsel appearing for the Respondents pointed out to us the Appendix to the terms and conditions which relates to handing over of possession, specially Clause 11 of that Appendix and submitted that the Respondents have the power to revise the sale-price. According to the learned Counsel the sale price mentioned in the advertisement was the approximate price and therefore, the Respondents can fix the exact price that was incurred and at that time it was found that the price has to be increased by Rs.41,000/-. 6 The learned Counsel appearing for the Respondents invited our attention to the letter dated 28-12-1998, which states that there was a meeting held in the cabin of the Housing Minister and in that meeting it was decided to increase the sale-price. It may be pointed out here that the minutes of the alleged meeting dated 28-12-1998 are not on record. The Respondents have also not bothered to file any affidavit in reply. 5. Now, if in the light of these rival submissions if the record of the case is perused, it becomes clear that in the advertisement price of the gala is mentioned, but it is made clear that it is approximate price. Admittedly, the terms and conditions of allotment of tenements accompanying the advertisement and the allotment of the tenements was governed by these terms and 7 conditions. In our opinion, Clause 21 of this terms and conditions is relevant. It reads as under:- Power of Board to increase price of tenements. (21)(i) Notwithstanding anything contained in the notice inviting applications or in the agreement executed by an allottee, the Board, shall, if the expenditure on works including interest ont he amount of loans taken by the Authority, if any, and the expenditure incurred on supervision has increased the cost of tenement/building be competent to revise the price of a tenement already specified in the notice or agreement. 6. Perusal of the above quoted Clause 21 shows that the sale-price of the tenement quoted in the notice or advertisement could be increased only in one contingency namely increase in the expenditure of work and for no other reason. Clause 11 of Appendix relied on by the learned Counsel appearing for the 8 Respondents reads as under:- (11) The sale Price of the tenement communicated in the offer of allotment has been fixed tentatively and if after receipt of final bills for the construction of the tenements or payment of interest on the amount of loan taken for the construction of these tenements or for expenditure incurred on supervision and maintenance the Board considers it necessary to revise the price tentatively fixed it will do so and determination and shall have to pay on demand the difference, if any, between the final price determined and the price paid by the allottee. 7. Comparison of Clause 21 quoted above with Clause 11 shows that Clause 11 of the Appendix is in line with what is contained in Clause 21. Clause 11 also shows that increase in the price which is mentioned in the notice or in the offer of allotment can be charged only for one reason namely increase in the costs of construction. The Petitioners have come to the court with a specific case that 9 the Respondents are increasing the costs because of change in their policy regarding profit. They have also produced the document which supports that case. The Respondents, on the other hand, have not filed any affidavit either denying that the reasons for increase in the sale price was not because of change in the policy or what is the exact reasons for increasing the sale-price. The material available on record clearly indicates that the reasons for revising the price is not increase in the costs of construction. Perusal of the communication dated 6-9-1988 which is the communication from the Respondents to the allottees shows that in September, 1988 the construction of the building was complete and the possession was also handed over to the allottees. Therefore, it is obvious that in 1988 itself the Respondents were aware of the costs of 10 construction. In our opinion, therefore, the increase in the costs of construction cannot be the reasons for demanding the revised price in the year 1991 about three years after the construction was completed and possession was handed over. 8. The learned Counsel appearing for the Respondents submitted that some of the members of the Petitioners-society have paid the increased amount and according to the learned Counsel, therefore, as some of the members have paid the amounts, the court should not interfere with the demand. In our opinion, the submission is not well founded. It is possible that because some of the members wanted no objection from the Respondents, they might have paid the amounts, but that will not debar the society from challenging the validity of the demand, 11 if in the opinion of the society the demand is without authority of law. In our opinion, the Respondents being public body cannot insist on retaining the amount recovered by them which is found by the court to be recovered without authority of law. Most that can be said is that they cannot be asked to pay interest on the amount which has been paid. In our opinion, therefore, following order would meet the ends of justice: O R D E R (i)The revision of the sale-price of the flats held by the members of the Petitioner/Society by the Respondent by Rs.41,000/- per gala from the allottees in Buildings Nos.24 to 28 and Rs. 30,500/- per gala from the allottees in Buildings Nos.29 and 30 is held to be 12 without authority of law. Hence, the Respondents are restrained from demanding that amount from the members of the Petitioners/society. (ii) In case some of the members of the Petitioners/society have paid the amounts, on making an application to the Respondents, the amounts recovered from those members shall be refunded to them. (iii)Rule made absolute accordingly. No order as to costs. (iv) If otherwise, the Petitioners-society is entitled to conveyance from the Respondents, the conveyance shall not be denied to the Petitioner-society on the ground that the increase price is not paid. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)