Blog

Writ petition dismissed holding the issue that the contract has not been concluded by the valid acceptance and pricing policy being executive policy, the court refrain from exercising jurisdiction under Article 226 of the Constitution of India of judicial review held the Hon’ble Cuttack High Court before the Hon’ble Justice Savitri Ratho in the matters of Dr Kari Benu Gopal Patro v. the State of Odisha. [Writ Appeal No. 821 of 2020].

The writ petition is filed for quashing the demand notice issued by the Berhampur Development Authority (BDA) and resolution to hand over the possession of land to the Petitioner. The petitioner grievance is not proceeding with the Housing Project stage- II though the petitioner has already deposited the requisite amount as demanded by BDA. Instead of providing houses under the housing project, BDA demanded more than ten times the actual amount for the land only. Houses for the lower-middle-class people was taken up in the 1st phase and completely successful. On the 2nd phase Housing project three more categories were added to the scheme. The petitioner being a lower-middle-income group of the society wanted a house within the BDA area for their residential abode. 

The petitioner deposited Rs. 20,000/- by way of demand draft and subsequently deposited Rs. 2,00,300/-. The first phase of the scheme was completely successful and delivery of possession was given to the petitioner as per the price quoted on the brochure. However, for the second phase, the petitioner had application got delayed. Petitioner applied for R.T.I. Act, the BDA intimated that due to the non-participation of the contractors in the tender process and the non-availability of the solid concrete bricks, the project could not be taken up. So the petitioner received a demand notice from the BDA for the amount ten times the price fixed in the brochure initially only for the land.

The petitioner made representations to the BDA ventilating their grievances stating that the earlier decision was to allot land with houses and now offering houses at an enhanced rate. BDA decided to make allotment as per lottery and now BDA had decided to allot through auction which violated the terms in the brochure. The decision to enhance the rate of houses was purportedly taken by the committee as per the information provided under the RTI Act by the BDA. This decision has been challenged on the ground that it was unilateral and overlooking the benchmark valuation of the locality. 

BDA filed a counter-affidavit stating that they conceptualized a group housing scheme consisting of independent houses. BDA has published tender notice inviting applications from eligible contractors for the construction of the housing complex but there was no response from the contractors. On account of the high rate of inflation, BDA could not have constructed or delivered to the applicants the proposed houses at the price stated in the broacher. BDA denied that experts were not consulted or the benchmark valuation was revised. It was stated that all options were explored and the price of the plots compatible with the benchmark valuation was fixed. There was no lack of bonafide and no arbitrariness in exercising discretionary power by the BDA. The action of BDA being reasonable did not warrant any interference by the court in the exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India. Applicants had been allotted houses and plots while the petitioner was discriminated against. 

The Hon’ble Court held that “the reason for not processing the construction was neither unreasonable nor arbitrary and the reason was bonafide. It cannot be disputed that the price of construction, as well as the price of the land, will escalate over time”. Therefore, no fault could be found with the BDA for dropping the construction of the houses and instead of offering the plot only. A writ court exercising jurisdiction under Article 226 of the constitution neither has the expertise nor the jurisdiction to decide what should be the correct price of a plot of land. The writ petition has rightly been dismissed and no ground to interfere with the same.

Click here to read the judgment.

Judgment reviewed by Kaviya S