VIKRAMADITYA PRASAD, J. - (1.) HEARD the parties. The respondent -Housing Boards have not filed any counter -affidavit. The petitioner has filed this writ petition for issuance of mandamus upon the respondent to transfer/ register the Flat allotted to the petitioner in her name and thus, to perform the final disposal of the said Flat, considering the fact that petitioner has already deposited the entire purchase price as agreed between the petitioner and the respondents on installment basis long back in the year 1997 and consequently to quash Annexure -10 issued by the respondents, whereby and whereunder a sum of Rs. 1,99.554/ - has been demanded as dues of the Board to be paid by the petitioner.
(2.) THE undisputed facts of the case are that the petitioner was allotted a Flat No. H/212 MIG after the death of her husband and there was a Hire -Purchase Agreement for the same entered into between the petitioner and the respondent Board on 11th July, 1986. Under this agreement, the tentative cost of the Flat was fixed at Rs. 85,400.00 and this amount, after deduction of the initial amount of Rs. 17,080.00 , was to be paid in monthly installments of Rs. 819.90. It is submitted that the petitioner paid the installment and the installments were complete by March, 1997. It is relevant that by Annexure -5, the possession of the Flat had already been delivered to the petitioner on 11.8.1986. Thereafter, by Annexure -8, the petitioner asked the respondents for issuance of the No Due Certificate and for determining the final cost of the Flat, so that the petitioner might be in a position to pay the rest amount, and also for transfer of the Flat in her name. It appears that thereafter the Executive Engineer of the Board wrote to the Manager, Estate that the tentative amount had been fixed and Rs. 85,400.00 has been paid, besides Rs. 200.00 as fees against the legal charges. The installments deposited by the petitioner were also confirmed and he also requested for fixing the disposal price of the Flat so that the balance amount was directed to be paid by the petitioner. Thereafter, by Annexure -10 issued on 15.6.2002, the impugned order was passed, which is sought to be quashed. The allotment agreement, Annexure -3, clearly provides that the price that was fixed in the year 1985 was tentative and on this tentative price, the installment was fixed. Thus, whatever installment is there, that is towards the payment of the tentative price and not towards the payment of the final cost of the Flat and there can be no dispute on this. The Clause 9 of the Hire -Purchase Agreement reads as follows : "That after the full payment has been made and all dues cleared and if there has been no violation of any of the terms and conditions of this agreement or of the Board 'sRegulations in this regard a deed of lease in respect of the transfer of the aforesaid premises on perpetual lease hold basis shall be executed in favour of the settlee." Clause 23 of this agreement reads as follows : "That the settlee shall cease to be a tenant and shall be the owner of the House/premises only after the last installment of hire purchase and all other dues have been paid by him to the Board and the transfer of the property to him has been effected through conveyance deed such form as may be prescribed by the Board." Ram Narayan Sharma Versus State Of Jharkhand
(3.) WHAT will be the final price and on which date it will be calculated has to be considered. There is no specific provision made in the agreement itself with regard to the date on which the final price of the Flat has to be calculated. Clauses 4(a) and (b) of the agreement have got some relevant with regard to the final valuation of the Flat. These reads as follows : "4(a) That the total disposal price indicated above is according to the present estimate and hence tentative. Increase in the cost of the construction or development or due to increase in cost of land acquisition due to any decision/award of Court of law or legislation or due to increase in the cost due to final valuation or calculation or otherwise as per the decision of the Board shall be payable by the settlee either in installments thereof or in lump sum within the period decided by the Board......." "4(b) That the settlee shall be liable to pay such charges, if any, incurred by the Board on maintenance of road, water supply, drainage, street lighting and other services and amenities within a Housing Estate." Thus, the determination of final price is dependant upon the aforesaid factors. One argument was raised by the learned counsel appearing for the petitioner that since the possession of the Flat was delivered in the year 1986 and the construction was complete, the cost occurring on account of that construction should be that which could be on the date of delivery of the possession. Even if this proposition appears to be acceptable, then some questions also still remain unanswered that whether there is any increase in the land valuation, which was tentative at the time of settlement and the cost regarding development and maintenance etc., which are the factors to be taken into consideration, while calculating the final price. Therefore, while I agree with the submission of the learned counsel appearing for the petitioner that as the possession of the Flat had been delivered in the year 1986, the cost over construction of the Flat should be that which was the actual cost that had occurred on that date because once the Flat is constructed, that cannot subsequently be the subject of escalation in the price of the building materials. But so far as the land over which it is constructed is concerned, if the valuation of the land acquisition is increased subsequently, I mean to say, not as per the market price of the land, but due to award of the Court, then that amount has to be paid by the petitioner. The land on which the Flat stands and the further development costs even after the delivery of possession has to be included in the final price because of delivery of possession can be made in the initial stage and subsequently the road, park etc. can be developed, the electrical fittings can be made. These are also to be included in the final price. Therefore, whatever price was fixed in the year 1986 even at the time of delivery of possession was definitely a tentative price and the Board had a right to calculate the final price of the Flat so allotted after taking into consideration the factors admissible for such calculation.;