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SUPREME COURT OF INDIA
L. NAGESWARA RAO, HEMANT GUPTA, JJ.
THE BIHAR STATE HOUSING BOARD & ORS. – APPELLANT(S)
Versus
RADHA BALLABH HEALTH CARE AND RESEARCH INSTITUTE (P) LTD. – RESPONDENT(S)
Civil Appeal No. 7243 of 2019 (Arising Out of SLP(Civil) No. 4990 of 2018)
Decided on : 13-09-2019
(A) Real Estate – Bihar State Housing Board (Management and Disposal of Housing Estates) Regulation, 1983 – Regulation 33 – Allotment of plot – Respondent does not get any right of allotment of a plot merely because it has applied for allotment earlier – Response to an advertisement does not lead to any obligation on appellant to allot any plot – There was no allotment in pursuance of offer submitted by respondent – Mere fact that respondent had applied for allotment of a plot does not confer any legal or equitable right to seek allotment of any plot – Public property could not be disposed of without any advertisement and without giving opportunity to eligible persons to apply and seek consideration of allotment of public property in a transparent and non-discriminatory manner – Very allotment of two plots, on the basis of direction given by High Court to consider claim of respondent, is against public interest – However, after allotment, respondent has constructed hospital which is operational – It is too late in the day to cancel allotment of plot allotted to respondent – In exercise of jurisdiction under Article 142 of Constitution, interest for period from date of filing of writ petition before High Court till date of order of this Court shall not be charged from respondent provided respondent pays entire balance sale consideration in terms of condition of allotment within six months. (Paras 25, 26, 27, 32 and 33)
(B) Real Estate – Allotment of Plot – Price fixation – Appellant as a State is required to act fairly in fixation of price for allotment of a plot – Order of High Court to direct appellant to charge price proportionate to price advertised earlier has no legal basis – It is a commercial decision taken by appellant fixing price of plot – In matter of fixation of price, Board has right to fix such price, more so, when such price was accepted by respondent on three different occasions – Action of respondent to dispute allotment price after accepting the price is neither fair nor reasonable and cannot be accepted. (Paras 30 and 31)
Facts of Case:
Challenge in present appeal is to an order passed by Division Bench of High Court of Judicature at Patna on November 21, 2017, whereby, the Letters Patent Appeal against an order passed by the learned Single Bench on September 19, 2016 was dismissed.
Findings of Court:
Appellant as a State is required to act fairly in fixation of price for allotment of a plot. The order of the High Court to direct appellant to charge the price proportionate to the price advertised earlier has no legal basis. It is a commercial decision taken by appellant fixing the price of the plot. In the matter of fixation of price, the Board has a right to fix such price, more so, when such price was accepted by the respondent on three different occasions.
Result : Appeal allowed.
JUDGMENT
Hemant Gupta. J.
1. Leave granted.
2. The challenge in the present appeal is to an order passed by the Division Bench of the High Court of Judicature at Patna on November 21, 2017, whereby, the Letters Patent Appeal against an order passed by the learned Single Bench on September 19, 2016 was dismissed.
3. The appellant published an advertisement on May 10, 2008 inviting applications for allotment of plot for health center in Lohia Nagar Housing Colony, Patna measuring 43000 sq. feet at the price of Rs. 1,71,89,057/-. Rs. 1,00,000/- was the earnest money. The respondent applied for such plot along with the amount of earnest money. It was mentioned in the advertisement that upon receipt of more than one application, allotment shall be made by draw of lots and that the Chairman-cum-Managing Director of the appellant has the power to cancel allotment without assigning any reason. The respondent herein was the sole applicant for seeking allotment of plot advertised for health center but no such plot was allotted to the respondent, may be for the reason that the respondent being the sole applicant.
4. The respondent filed writ petition before the High Court in the year 2009 challenging the action of the appellant in not accepting the application of the respondent for the reason that it had not submitted the documents of recognition from the State Government. In view of the stand taken, the High Court directed the appellant to take a decision on the application of the respondent within a period of one month. Subsequently, contempt petition was filed wherein; the Court was informed that the request of the respondent for allotment of plot was not accepted. The respondent was given liberty to challenge the decision of the appellant by way of a fresh writ petition.
5. The respondent again filed writ petition before the High Court contending that the respondent approached the Managing Director of the appellant, who agreed to the proposal of allotment of alternative plots for construction of hospital in lieu of original plot offered, though with much less area than the plot advertised earlier. The respondent submitted the technical and financial proposal also stating that the plot, which was advertised, was of an area of 43000 sq. feet for a consideration of Rs. 1,71,89,057/-, thus, there should be proportionate reduction of price on account of lesser area being offered. The respondent sought allotment on the terms and conditions of the advertisement itself. The two plots offered as alternative to the earlier plot, were plot nos. G-5 and G-6 measuring an area of 10,000 sq. feet and 14000 sq. feet respectively situated near Rajendra Nagar Over Bridge in Patna. However, the Board took a decision to allot the aforesaid plots on the basis of Swiss Challenge Method. The said decision was communicated to the respondent on December 14, 2011.
6. The said writ petition was decided on May 10, 2013 holding that the advertisement cannot be given a go by adopting a method of allotment other than what was described in the advertisement. As such, Swiss Challenge Method cannot be applied in the case of the respondent. However, change of plot was not interfered with in view of the fact that the respondent agreed for the offered plots. The appellant was directed to consider issuing an allotment letter in favour of the respondent in terms of the advertisement but with respect to plot Nos. G-5 and G-6 in place of the original plot, as mentioned in the advertisement, on the same terms and conditions with proportionate cost reduction on account of the area of the plots having been reduced. The High Court passed the following order:
"In view of the reasons and discussions made above, the decision of the board to allot the Plot Nos. G-5 and G-6 in favour of the petitioner vide office order no. 160 of 2009 as contained in Memo No. 10792 dated 09.12.2011 (Annexure-16) as also the Letter No. 10871 dated 14.12.2011 (Annexure-17) on the basis of Swiss Challenge Meth
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