S.C. Dharmadhikari, J.
1. By this petition under Article 226 of the Constitution of India, the petitioner Co-operative Housing Society is, inter alia, praying for the following reliefs:
(a) Issue a Writ of Mandamus or any other appropriate writ in the nature of Mandamus or other writ directing the respondent No. 2 to act and transfer the title of plot 'A' admeasuring 10561 sq. metres as per the approved plan in favour of the petitioners.
(b) Issue writ in the nature of Mandamus or any other appropriate writ directing the respondent No. 4 to act upon the complaint of the petitioner and take action as per law against the illegal encroachment made by the petitioner and remove the encroachment of illegal construction done by the respondent No. 2 on internal road and on plot 'A'.
2. The first respondent to this petition is the State of Goa. In fact, respondents No. 1, 3, 4, 5 and 6 are not the contesting respondents. Respondent No. 2 is the Housing Board which is a Statutory Body, registered under the Goa Housing Board Act, 1968.
3. Respondent No. 7 is impleaded as it is alleged that Plot 'B' is occupied by the employees of the Income Tax Department. There are 18 flats constructed on Plot 'B' and it is alleged that the concerned occupants/their Society has encroached upon the plot belonging to the Petitioner.
4. Factual position leading to the relief reproduced above, is as follows:
Respondent No. 2, Housing Board after purchase of the said entire property bearing Survey No. 34/1, sub-divided the same in the year 1987 after obtaining approvals from the Town and Country Planning Authority and Panchayat vide approval dated 16.7.1987. In the year 1993, respondent No. 2, Board in order to take up housing scheme, got the said sub-division revised from the Town and Country Planning Authority vide approval dated 10.11.1993. As per the said approval, various plots identified as Plots 'A', 'B', 'C' and so on, were carved out. As per the said revised approved sub-division plan, the area reserved under Plot 'A' is 10,561 sq. metres with clearly identified open space of 1584 sq. metres. A copy of the said sub-division plan showing the various plots and approved sub-divided plot 'A' and the open space therein is annexed and marked as Exhibit A. Plot 'A' is identified with yellow colour and the open space therein is identified with green colour. Plot B is identified with saffron colour. On the eastern side of plot A is approved internal sub-division road of 12 metres wide and beyond which lies Plot B. The said internal road is identified with red colour on the said plan.
5. In the years 1995 respondent No. 2 relying upon the said subdivision plot A, framed housing scheme (referred to as 'the First Scheme') of 72 double bedrooms flats on Plot A on an area of 10561 sq. metres and submitted the site plan and construction plans to the appropriate authorities. The respondent No. 6, the Town and Country Planning Department by its approval No. DB/9838/1292/95 dated 21.6.1995, approved the said building plans upon certain conditions such as parking place, open space, boundaries, set backs, FAR, etc. The copy of the said approved plan of the Town and Country Planning Department is annexed to the Petition and marked as 'Exhibit-B'. The respondent No. 4 upon approval from the Town and Country Planning Department and from respondent No. 5, PWD thereafter granted the licence to respondent No. 2 to construct building in plot 'A' vide its licence No. VP/PDF/Const-licen/95-96.
6. The respondent No. 2 by its Notice GHB/ADM/18/95 dated 6.10.1995 offered the said 72 flats for sale under the advanced contribution scheme for the price of Rs. 6,40,000/- on the ground floor and first floor and for Rs. 6,35,000/- on the second floor. The respondent No. 2, after accepting the entire payment of cost of the said flats, handed over the possession of the flats to the respective purchasers from April/May 1997 to 1999 and further advised the allottees of the said flats to form a Housing Co-op Society in order to transfer the possession and title of the said approved plot 'A' to the Society. Annexed to the Petition and marked as 'Exhibit B-1' Collectively are copies of the Scheme and allotment letter of Flat No. HHF-45 in favour of Shri Ganpati Subrai Dessai, Chairman of the petitioner Society.
7. In the meantime in the year 1997 the respondent No. 2, Goa Housing Board prepared another Housing Scheme (hereinafter referred to as 6 'the Second Scheme') of 18 double bedroom flats on its approved subdivided plot 'B' as approved by planning authority No. PDA/3475/1526/87 dated 16.7.1987 and submitted the building plans of building to be constructed in plot 'B'. In the said plan the building is shown in plot 'B' and towards the west lies the internal road. The respondent No. 6 granted approval vide its approval No. DB/9838/97/1101 dated 2.9.1997 and based on the said approval the respondent No. 4, granted licence to the respondent No. 2 to construct the said building of 18 flats. The copy of said plan showing the location of plot 'B', building thereon and the internal sub-division road is annexed and marked as 'Exhibit -C'. The plot 'B' is identified with yellow colour and building thereon is identified with red colour.
8. The respondent No. 2 by its circular letters dated 13.4.1998 convened a meeting of allottees of flats on 14.4.1998, which was poorly attended. As the said First Meeting was poorly attended the respondent Board on 11.9.1998 issued another circular to the allottees of 72 flats under the First Scheme in plot 'A' to attend the meeting convened on 14.4.1998 failing which it threatened to discontinue the services of pump operation w.e.f. 30.9.1998. At the said meeting held on 14.4.1998 there was a strong protest from the allottees of flats on account of poor quality of construction done by the respondent No. 2. The copy of the said Circular dated 11.9.1998 is annexed and marked as 'Exhibit -D'.
9. Despite protest from the allottees of flats of poor construction, there was no compliance from the respondent No. 2, the allottees of flats wrote a joint appeal dated 4.10.1998 to the respondent No. 2, Housing Board to comply with requirements. On 23.11.1998 a meeting of the allottees of 72 flats was held and it was decided to promote a Co-operative Housing Society. The copy of the said appeal dated 4.10.1998 is annexed and marked as 'Exhibit -E'. As the addresses of all the allottees of flats were not known the respondent No. 2, Housing Board vide its letter No. GHB/EE/(N)/1243/98 dated 25.11.1998 supplied the addresses of allottees of flats to get majority to form Society.
10. During the process of formation of Housing Society the respondent No. 2 GHB issued No Objection letter No. GHB/EE/(N)/1101/98 dated 27.10.1998 to the petitioner that the title of the land under plot 'A' covering the said project of 72-HIG flats and building will be handed over by the Board to the petitioner by executing a sale deed in favour of the Society. The copy of the said No Objection Certificate is annexed and marked as 'Exhibit -F'.
11. On 10.11.1998 the respondent No. 2, Goa Housing Board vide its reply No. GHB/EE(N)/TECH/1183/98 dated 10.11.1998 to the joint appeal of the allottees of the 72 flats dated 4.10.1998, informed that the title of the plot 'A' will be transferred only in the name of Society. The copy of the said reply is annexed and marked as 'Exhibit-G.'
12. As the allottees of flats required the copy of the approved building plan of the said project of 72 flats, the allottees by their letter dated 8.12.1998 requested the respondent No. 2, Housing Board to supply to them the copy of the approved site plan and the building plan of 72 HIG flats. The copy of the said letter dated 8.12.1998 is annexed to the petition and marked as 'Exhibit-H'.
13. The respondent No. 2, Board on 24.12.1998 issued Certificate promising to transfer the title of land covering the 72 flats and the building as per the plans approved by the Town Planner vide No. DB/9838/1292/95 dated 21.4.1995 and as approved by the respondent No. 4, Village Panchayat under reference No. VP/PDF/Const-licen/54/95-96 dated 28.11.1995. Based on the said Certificate issued by the Housing Board the promoters submitted the application for registration of Society. The copy of the said Certificate dated 24.12.1998 is annexed and marked as 'Exhibit-I'.
14. Thereafter, it is alleged that there were meetings held between the Chief Promoter of the petitioner Society and the Goa Housing Board and the Housing Board was requested to supply certified true copy of the subdivision plan of survey No. 34/1 and Plot 'A'. On 26.3.1999, the proposed Society was registered under the present name and style and copy of the registration certificate is annexed as Annexure 'K' to the petition. The petitioner Society immediately informed respondent No. 2 Board about incorporation and registration of the petitioner Society and called upon the Board to execute the sale deed in its favour. The Goa Housing Board, issued a letter dated 12.4.1999, copy of which is annexed and marked as Annexure 'M' agreeing to transfer the title of Plot A on which high income group 72 flats have been constructed and in occupation of the flat holders who are Members of the petitioner. It appears that correspondence ensued with regard to supplying of a draft of the sale deed, but nothing fruitful emerged therefrom. It is alleged that respondent No. 2 did not forward the draft of the sale deed and transfer the Plot 'A' on the ground that some of the Allottees have not paid their dues. However, the petitioner informed the Board that it will not be possible for the petitioner to take up maintenance of the building unless the title of the plot A is transferred in the name of the petitioner and pointed out that even Plot B has been developed, 18 flats constructed and an occupancy certificate is also sought to be obtained hastily.
15. The petitioner became suspicious because Plot B was developed and in fact though there is some problem with regard to actual location of the plots, it appears that Panchayat on account of representations and complaints did not issue occupancy certificate in respect of those 18 flats constructed on plot B. In view of demarcation of Plot A being in progress, the Housing Board avoided to execute the sale deed.
16 In paragraphs 28 to 31, the petitioner has referred to the correspondence on the issue of re-examination and inspection of the site. Further, they referred to the meetings with the High Powered Officials, including the Chairman of the Housing Board and the Housing Minister. It is, in these circumstances, that the petitioner has approached this Court complaining about inaction of the Board to execute the sale deed in its favour.
17. After this petition was filed and notice was issued by this Court on 20.11.2000 affidavits were field. The Secretary and Managing Director of the Housing Board filed an affidavit and contended that the Goa Housing Board is a Statutory Body, governed by the Goa Housing Board Act, 1968. It is engaged in framing schemes of housing and construction of houses/tenements thereon. The affidavit admits that the allotment of flats has been done and the terms and conditions thereof are clear. He urged that there is allotment of flats to only individuals. There is no allotment in favour of the Society. The Housing Board has permitted formation of Co-operative Housing Society of the Allottees for the maintenance of the buildings and there is no allotment in favour of the Society, nor is there is any agreement made in that behalf. It is alleged by him that some of the Members of the Petitioner have not paid the entire amount towards dues of the Board/penalty and therefore, the petitioner Society cannot pressurise the Board by filing the instant petition. It is alleged by him that the construction of building in plot B is an independent scheme and the petitioners are not concerned with the same.
18. In paras 8 and 12 of affidavit, this is what is alleged:
8. I state that the property admeasuring 11.6 hectares under Survey No. 34/1 situated at Penha de Franca Panchayat area was purchased by the Goa Housing Board in the year 1979. I say that the Goa Housing Board framed Housing Scheme of 72 double bedroom flats in 1995 to be constructed on scheme area of 6145 sq. mts. I say that the Scheme was approved by Planning and Development Authority on 10.11.1993. I say that the building to be constructed was with ground plus two floors. I say that these 72 flats were offered for sale by Notice dated 6.10.1995 under Advance Contribution Scheme and the price of flats on Ground, First and Second floors were fixed. I say that the flats were allotted to the different applicants/purchasers. I say that the possession of the flats were also handed over to the purchasers from 1997 to 1999. I say that the Society was formed by the purchasers of the flats for maintenance of the building. I say that some of the allotees/members of the Society have not yet paid the entire dues of Goa Housing Board. As there was delay in payment by some of the allotess, I say that the Petitioner Society has demanded execution of Sale Deed of an area of 10.561 sq. mts. I say that the petitioner Society is not entitled for this area when indeed the scheme area is 6145 sq. mts. and allotment to them is of particular flats in terms of Allotment order.
12. I say that the Building on Plot 'B' is already complete, which is allotted to the Department of Income Tax, Grave loss and prejudice will be caused to the Respondent No. 2 if any order is passed against the Board. I crave leave to produce Construction Licence dated 5.9.1995 and 23.10.1997 and Completion Certificate dated 24.3.2000 as also complaint dated 31.10.2000 to the Police authorities. I say that the petitioner Society is not entitled for an area of 10,561 sq. mts. when indeed Scheme area is 6145 sq.mts. I say that the purported Report dated 11.5.2000 of Mr. Prazeres A. Gonsalves marked as Exhibit X at page 139 of the petition is not the correct Report. I say that notice of any such inspection was never given to the Board.
19. The petitioner filed a rejoinder and pointed out that the affidavit of the Board is nothing but an afterthought. It is urged by the petitioner that the Society has been formed pursuant to the terms and conditions of the allotment letters themselves. The terms contemplate formation of a Co-operative Housing Society for maintenance of the building in which flats have been constructed. The petitioner pointed out that the Board has clearly represented to the Allottees that they would be permitted to form a Co-operative Housing Society and maintain the building by formation of Society. If there is a permission to form a Co-operative Housing Society, then, the same must be formed for the purposes of maintenance and maintenance cannot be undertaken unless the title of the land is transferred in favour of the petitioner. Further, the obligation is of the Board to remove the encroachment and there is no question of the petitioner being called upon to do so or they exerting any pressure on the Board. The petitioner has pointed out that only some amounts are due and payable by one Carmel D'Souza and Vinayak Naik, but they have not applied for membership of the Society. Further, the petitioner denied that the area is 6145 sq. metres. They asserted that the Board proposed and executed the scheme of 72 flats in Plot 'A' admeasuring 10561 sq. metres. Hence, all contents to the contrary are false and are denied by the petitioner.
20. Thereafter, another affidavit was filed by respondent No. 5 and in the affidavit filed on 27.11.2000, respondent No. 5 referred to the approval from the Planning and Development Authority for sub-division of the plots, approval for putting up buildings and approval of plans in that behalf. However, the Technical Officer denied that there is any encroachment on Plot A. The scheme with regard to Plot B was also approved according to respondent No. 5 and he referred to the date of completion and occupancy of the building.
21. Thereafter, an additional affidavit has been filed on behalf of the Board, but prior thereto this Court admitted the writ petition. This Court noted that respondent No. 2 Board, so also others have raised issue of maintainability of the petition and, therefore, in its order admitting the petition, this Court clarified that preliminary objections with regard to maintainability are being kept open and subject to that the petition is admitted.
22. An additional affidavit on behalf of the Board came to be filed on 7.2.04 and 14.2.04 and it stated that the Board of Directors of the Housing Board in a meeting held on 17.12.2003 decided to execute the sale deed with individual Allottees in view of the problems faced on account of dispute between Members of the Society. Therefore, upon request of individual Allottees, the Board decided to execute the sale deeds in their individual names and conveyed and placed that fact on record of this petition.
23. The petitioner then filed an affidavit of its Chairman and pointed out that the decision of the Board to allegedly execute individual sale deeds is illegal and malafide, so also contrary to the terms and conditions of the allotment. There cannot be individual sale deeds of the land and the petitioner, therefore, challenges the decision of the Board to execute the individual sale deeds. The affidavit in that behalf is filed on 1.3.2004. In the meanwhile, the Income-Tax Department also filed an affidavit to this petition and denied that there was any encroachment. On the other hand, it contended that the road and the flats of the petitioner and the Middle Income Group flats were in existence prior to the construction of the building purchased by the Income Tax Department.
24. An additional affidavit has been filed on behalf of the Board in this petition on 6.9.04 and the Board has denied that a decision was ever taken to execute any sale deed in favour of the petitioner to transfer 10,561 sq. metres of land. The petitioner was never promised that Plot A admeasuring this area would be transferred. In paras 5 and 6 of this affidavit this is what is stated:
5. I state that the petitioners have produced letter written by Executive Engineer Mr. A.V. Radhakrishnan which are dated 11.9.98, 27.10.98, 10.11.98, 24.12.98, 12.4.99 etc. I state that these letters have not been issued on behalf of the Housing Board as alleged. I state that these letters are issued by the Executive Engineer and it cannot be considered to be issued by the Housing Board. The letter dated 3.4.2000, which is submitted by the petitioners itself shows that many of the allottees were not members of the Society and no promise as such was given to the petitioners.
6. I state that under Section 3 of Goa Housing Board Act 1968, Goa Housing Board is body corporate and acting through its Board of Directors. I state that there is no resolution of the Board of Directors to transfer land admeasuring 10561 sq. mts. to the petitioner's society nor these letters were placed before the Board of Directors. Therefore, letters referred herein above which are issued by the Executive Engineer does not in any manner be considered as promise to the members of the petitioners. I state that all the letters referred by the petitioners are after issuing of allotment orders and therefore there is no question of representation to the members or the Allottees.
The affidavit once again reiterates the decision to execute individual sale deeds and points out that some of the members of the petitioner have opted to do so.
25. The petitioner had to file a rejoinder to this affidavit and while denying the contents of the affidavit filed additionally by the Board, the petitioner reiterated the contents of their earlier affidavits and the writ petition. Further, the petitioner pointed out in the affidavit filed on 20.9.04 that whenever Middle Income Group flat holders requested for transfer of the title of flats in individual names, the Board has replied that the request cannot be considered as it has decided to execute sale deed in favour of a Co-operative Housing Society formed by the flat owners. The petitioner relied upon letter of the Board to this effect issued to one Dharamchandra Chodankar, Purchaser of Flat No. MCG-25 in M.I.G. flats Scheme at Porvorim. Despite this fact, the Board filed another affidavit and urged that the entity at Porvorim (MIG flats) is a distinct scheme and, therefore, reliance cannot be placed on the letter addressed to Chodankar. The Board sought to explain its stand further by stating as under:
4. I state that the Goa Housing Board in its meeting of Board of Directors held on 17.12.03 has resolved to execute sale deed in the name of individual allottees. However all the members of Golden Era Co-operative Society through the Society have represented before the Goa Housing Board that sale deed should be executed in favour of the society and they do not want sale deed in their name. I state that in view of this, matter was again placed before Board of Directors in respect of their request. The Board of Directors in its meeting held on 12.5.04 resolved to execute sale deed in favour of Golden Era Society as a special case. In view of this resolution, the application of member of the said society Mr. Dharamchandra Chodankar could not be considered and accordingly letter dated 16.8.04 was issued to him.
5. I state that the Golden Era Society has all the Allottees as the members where as petitioner No. 1 Society do not have all Allottees enrolled as members. Besides this, some of the members of the petitioner's themselves requested to execute individual sale deed and one of allotttee Mrs. Brance M.D. Miranda has already executed sale deed dated 30/4/98 in her favour. I state that petitioner society was not active for long time and there is no consensus among the members. I state that resolution of Board dated 17.12.03 is applicable to the petitioners and petitioners are not entitled to say that there is discrimination against them.
26. In these circumstances, when this writ petition appeared before a Division Bench of this Court on 22.7.08, that the Division Bench directed the Board to file a proper affidavit with regard to construction on Plot 'A' and the additional affidavit is filed by one Shri Damodar Shanke, Managing Director of respondent No. 2. In this affidavit, the Board in paras 3, 4, 5 and 6 state as under:
3. I state that the Goa Housing Board has purchased a property admeasuring 11.06 hectares under Survey No. 34/1 situated at Village Penha de franca in the year 1979. I state that the Respondent No. 2 has obtained approval from the Planning and Development Authority for sub-division of the said property for the purpose of implementing a Housing scheme under approval dated 16/07/1987. I state that the said property has been subdivided into various plots which have been approved by the Respondent No. 6 vide Approval dated 10/11/1993.
4. I state that in the year 1995, the Goa Housing Board formed a Housing Scheme of 72 (seventy two) Double Bedroom flats to be constructed on a scheme area of 6,667 sq. metres comprising of two Phases. I state that the Goa Housing Board for the purpose of obtaining permission from the Town and Country Planning Department submitted a Plan with details of the property and the area statement showing that the total area of the property is 10,561 (ten thousand five hundred sixty one) square metres wherein the said 72 (seventy two) Double Bedroom flats on Plot No. `A' were proposed to be constructed.
5. I state that although in the said Plan that the total area of Plot `A' was shown as 10,561 square metres, the actual area was only 6,667 square metres, I state that as regards Plot No. `A' the Respondent No. 2 got the Plan approved from the Town and Country Planning Department vide Approval dated 21/06/1995.
6. I state that it appears from the records that a large area was acquired for the purpose of the Goa Housing Board which was then divided into various sectors/plots. While submitting the area statement with the application seeking for the planning approval, inadvertently the area came to be mentioned as 10,561 square metres probably without verifying the factual plot measurements and area available and without deducting the area covered for the roads/open spaces. This area of 10,561 square metres was never represented to the Petitioner Society nor any of its Members. No such area of 10,561 has been mentioned in the Agreement. In fact in the cost calculation statement of the Board, the area is reflected as 3,345 (three thousand three hundred forty five) square metres of Phase I and 3,322 (three thousand three hundred twenty two) of Phase II which totals an area of 6,667 (six thousand six hundred sixty seven) which is the correct area for which the Purchasers have been charged.
27. The Board took a stand for the first time that the area is 6,667 sq. metres and that is covered by the project and that is how the cost calculation has been made with regard to the project. The Board did not charge costs of 10,561 sq. metres and it never represented to the petitioner that an area of the plot A is 10,561 sq. metres. In such circumstances, the plan prepared by the petitioner was disputed by the Board. It also disputed that there is any encroachment by Plot 'B' flat holders. The Board stated that as per its record, the Income Tax Building is constructed on Plot 'B' and petitioners'/Society's building is on Plot A. There is a road which divides it into two plots. Further the Board reiterates that 12 sale deeds have been executed with 12 flat purchasers in the scheme on Plot 'A' between 1998 to 2008. Further, the Board urged that since the petitioner has raised the issue of the exact area of the Plot 'A', the Board has requested the Dy. Collector, Bardez by its letter dated 30.7.08 to depute the Official Surveyor of Land Survey Department, Government of Goa for re-demarcation of the land and, therefore, it prayed for time to carry out the same.
28. After this affidavit was filed on 7.8.08, the petition was placed before us for hearing and final disposal and after the Counsel appearing for the Board handed over the record for perusal of this Court, oral arguments were heard.
29. Shri Kakodkar, learned Senior Counsel appearing for the petitioner contended before us that the Board is now estopped from urging that the area is not 10,561 sq. metres, but something else. He submits that the Board is a Statutory Body and it is implementing a statutory scheme. There are no contractual obligation involved. It is a clear case of scheme being framed and implemented by the Board which is in consonance with the mandate of Article 39(b) and (c) of the Constitution of India, read with Article 21 thereof. Shelter and housing is part and parcel of right to life guaranteed by Article 21 of the Constitution of India. While fulfilling this constitutional mandate, the Board has to abide by Article 14 as well. All actions have to be fair, transparent, non-arbitrary and non-discriminatory, so also reasonable. The Board having represented to the flat holders and purchasers that the Plot Admeasures 10,561 sq. metres, and 72 flats were to be constructed thereon which would be offered for sale, then, the Board now cannot urge that the area is something else, more so, when the figure is mentioned in the approved plan, so also the documents and records of the Board itself. The figure is also supported by documents of the Planning Authorities. In such circumstances, the Board must keep its promise and execute the sale deed.
30. In any event, Mr. Kakodkar submits that by 11.9.98, the Housing Board asked he Allottees of the flats in the scheme to form a Cooperative Housing Society. Thereafter, on 27.10.98, the Board informed the Allottees that the title of the land covering the project and the building will be handed over to the proposed Society by execution of a sale deed in favour of the Society. Further, the Board issued certificates and letters stating that the title of the land covering the flats and the building will be handed over to the proposed society as soon as it is registered. Thereafter, the petitioner Society was registered and a draft of the sale deed was not forwarded by the Housing Board and, therefore, correspondence ensued between the petitioner and the Board.
31. On 24.2.2000, the Board stated that the sale deed will be executed after payment of all dues by the Society. Thus, it is not as if the Board is not committing itself for execution of the sale deed. That it committed itself in writing is clear from the conditions of allotment. It very clearly stated in the scheme itself that the Allottees shall form a co-operative Society for the purpose of maintenance of the Building. In such circumstances, the Board cannot be permitted to go back on its promise. Shri Kakodkar submits that the principles enshrined in Section 115 of the Indian Evidence Act are clearly attracted. There is a representation made by the Board based upon which the petitioner has acted and, therefore, conveying the land and the open spaces is an obligation which must be discharged by the Board.
32. Shri Kakodkar has relied upon the following decisions in support of the rival contentions:
1) Real Estate Agency v. Model Co-operative Housing Society Ltd. and 10 Ors. 1990(1) GLT (291);
2) HIG Flat Owners Welfare Association v. Tamil Nadu Housing Board and Ors. : AIR2000Mad446 ;
3) Kantilal and Ors. v. Chairman, Town Improvement Trust, Ratlam and Ors. : AIR1986MP134 ;
4) Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. (1983) 3 SCC 479;
5) ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Anr. : (2004)3SCC553 ;
6) State of Karnataka and Anr. v. All India Manufacturers Organisation and Ors. : AIR2006SC1846 ;
33. Shri Kakodkar contended that the decisions would indicate that the writ petition is maintainable because this is a clear case of the Board acting in its capacity as Instrumentality or Agency of the State. The flats are sold under a housing scheme which is implemented as per the statutory powers of the Board. In terms of the scheme which is traceable to the statutory powers, the Board was obliged to execute a conveyance in favour of he petitioner and, therefore, in the peculiar facts of this case, a writ petition would lie to enforce that obligation. Further, there are no disputed questions of facts which would require any elaborate trial. The issue can be decided by relying upon the communications and letters of the Board itself. Therefore, and when the Board does not dispute that it is obliged to execute a conveyance, but only raised an issue with regard to the area, then, the writ petition is maintainable.
34. On the other hand, Shri Nadkarni, learned Counsel appearing for the Board contended that the writ petition is not a remedy to obtain a sale deed and conveyance in favour of the petitioner. The title is to an immovable property. A title to an immovable property can be obtained only after declaration is claimed of a right existing in favour of the party. That right flows in the present case from a contract. Therefore, this is not a statutory scheme, but a purely contractual obligation. Once, there is no statutory obligation and duty, but a purely contractual dispute, then, the remedy of the petitioner is to file a civil suit for claiming a decree of specific performance or such other reliefs as are available in law. A writ petition is not maintainable.
34. In support the submission with regard to the maintainability and preliminary objection in that behalf, Shri Nadkarni relied upon the following decision:
1) Radhakrishna Agarwal v. State of Bihar : [1977]3SCR249 ;
2) The Divisional Forest Officer v. Bishwanath Tea Co. Ltd. : [1981]3SCR662 ;
3) Bareilly Development Authority and Anr. v. Ajai Pal Singh and Ors. : [1989]1SCR743 ;
4) Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Ors. : (2004)192CTR(SC)492 ;
5) Larsen & Turbo Ltd. v. Union of India and Ors. : 2005(191)ELT39(SC) .
35. Without prejudice, Shri Nadkarni submits that there is no question of promissory estoppel and that doctrine cannot be invoked against the Board in the facts of this case. Shri Nadkarni submits that the petitioner is a co-operative Society. The petitioner cannot claim to have been informed and persuaded by the Board to alter its position on the basis of some terms. This was a scheme for the public and flats were sold by the Board in pursuance of the Scheme. In the scheme, there is no promise to the petitioner, based upon which it can claim to have altered its position. Therefore that doctrine also cannot be invoked in the facts of this case.
36. In any event, Shri Nadkarni submits that there is a dispute with regard to the area and the petitioner at no stage was promised that a conveyance or sale deed will be executed in its favour in respect of land admeasuring 10,561 sq. metres. That is not the area of Plot A. That may have been stated in the plan and applications seeking approval to the plan. However, beyond the plan and the approvals thereto, nothing has been pointed out by the petitioner which would indicate that Plot A admeasures 10,561 sq. metres. On the other hand, the area statement, perused as a whole, would indicate that the Board is right in its conclusion that Plot A admeasures 6,667 sq. metres.
37. Without prejudice and in the alternative, Shri Nadkarni makes a statement, on instructions, that the Board would be ready and willing to execute a sale deed in favour of the petitioner in respect of this area and the petitioner must lay its claim elsewhere if it is maintaining its stand that Plot A admeasures 10,561 sq. metres. For all these reasons, the petition be dismissed.
38. Mr. Nadkarni in all fairness has handed over the file pertaining to the scheme for our perusal.
39. At the outset, we are of the opinion that the petition cannot be thrown out and dismissed on the ground of maintainability. Our reasons for reaching this conclusions are as follows:
The Board does not dispute that it has been established under the Goa Housing Board Act, 1968. It does not dispute that it is a statutory body, governed by this Act. It does not dispute that it is engaged in providing houses by implementing housing schemes for various classes and categories of persons. It does not dispute that housing and shelter is part and parcel of right to life guaranteed by Article 21 of the Constitution of India. Further, the Board does not dispute its obligation under directive principles of State Policy and more particularly Article 39(b) and (c) of the Constitution of India. The Board has not disputed before us that it formulated and implemented a scheme by which it offered 72 double bed rooms flats at Porvorim for sale to the group which is known as 'H.I.G. Scheme'. A copy of the scheme is annexed to the petition and it defines the allotttees of Higher Income Groups. There is reservation of flats for certain categories. There is eligibility criteria, including income limit. There is a procedure prescribed for registration and allotment and there is a price which has to be paid in installments as per stages stipulated in the scheme. The possession of the flat will be handed over upon such payment and the Allottees shall, thereafter, form a Co-operative Society for the purpose of maintenance of the building. Further, the brochure indicates the area of the flats and amenities available. In pursuance of the advertisement and the terms of allotment that the flats have been purchased by the Members of the petitioner Society. We have perused the files and some of the relevant documents.
40. On 5.9.95, the Village Panchayat of Penha de Franca, granted permission in the prescribed form for construction of the flats to the Board as per the plan attached. The plan which is titled as 'site plan' shows an area of plot A, upon which the 72 flats were to be constructed, as 10,561 sq. meters. Further, there are plans for individual flats. On 25.3.98, the Occupancy Certificate was granted in the prescribed form by the said Panchayat. Prior thereto there is a note which indicates that the plot was sub-divided and numbered as Plot A. The note which was placed before the meeting fixed on 26.5.2000 with the Office bearers of the Society shows that the area of the plot admeasures approximately 6,645.25 sq. metres. This is based on the site dimensions. The note admits that the plot area as recorded in the approved plan is 10,561 sq. metres. We have also been shown from the file a letter dated 9.6.1994 addressed to the Chief Engineer, Housing Board by one Francis Dias, Architech Planner. He encloses with this letter a set of working drawing of the propose 72 develop flats at Porvorim. He states that as per the site condition, area of the plot is 6,645.25 sq. metres, and not 10,561 sq. metres as shown in the sub-division plan approved by the town and Country Planning Department on 10.11.93. Therefore, he requests that this may be taken into account while computing the costs of each flat. It is stated that the Architect Planner thereafter applied for development permission based on the site condition and this computation. This is how the Village Panchayat approved plan on 12.7.1994. It is, therefore, the case of the Board that the area is not 10,561 sq. metres as claimed, but the area is as stated above. We have been also shown a Board Resolution which was passed on 279th meeting held on 12.5.1995. Minutes of this meeting were confirmed in the 281st Meeting held on 7th July, 1995. The Board confirmed the decision and fixed the sale price of each flat as Rs. 6,40,000/- on the ground and first floors and Rs. 6,35,000/- on the second floor. The cost sheet/revised project cost shows that the computation is based on the area calculation made above.
41. Shri Nadkarni urges that even if the documents relied upon by the petitioners are taken into consideration, they would reveal that the total area of the property is 10,561 sq. metres, but the area covered is 1912 sq. metres for each floor. Therefore, the total area consumed is 5736 sq. metres. The floor area ratio is 54.31 and FAR permissible is 844.8 sq. metres. Therefore, it is the case of the Board that at no stage the figure of 10,561 sq. metres is an admitted figure.
42. We are of the view that the dispute about measurement and demarcation of the area at site cannot be resolved in writ jurisdiction. There is substance in the contention of Shri Nadkarni to this limited extent. If the plot admeasures 10,561 sq. metres and that is sought to be proved by relying upon the documents annexed to the petition as Annexure 'A', including site plan approved by the Town and Country Planning Department, then, the petitioner will still have to explain as to how this entire area is covered by plot 'A'. Further, the figures, as are demonstrated by the Board, reflect that the construction occupies a portion of the entire area, then, atleast to the limited extent there is substance in the contention of Shri Nadkarni that until a survey, measurement and demarcation is done jointly or otherwise, the dispute cannot be resolved. That is something which we cannot undertake. However, we propose to issue certain directions in that behalf. More so, when the Board itself undertakes to carry out the measurement and survey of the site, so also demarcation of the area of plot A afresh.
43. However, when the Board commits itself in the affidavit filed before us that the construction of the 72 flats covers an area admeasuring 6,667 sq. metres, then, atleast to the extent of this area it is committed to execute a sale deed in favour of the petitioner. We are not in agreement with Shri Nadkarni that individual Allottees are entitled to sale deed in their favour and the Co-operative Society cannot be held to be so entitled. The submission in this behalf overlooks the documents of the Board itself.
44. What we have before us is the firm commitment by the Board itself and there is substance in the contention of Shri Kakodkar that the Board cannot be permitted to resile or back out from the assurance and promise contained in the communications. At page 89 is the letter dated 27.10.98 addressed by the Executive Engineer(North) of the Goa Housing Board to the Chief Promoter stating therein in clearest terms that the Housing Board has no objection to form a Co-operative Housing Society for the purpose of maintenance and managing other affairs relating to the use of 72 HIG flats at Porvorim. The Board stated that the title of the land covering the said project and the buildings for maintenance will be handed over to the proposed Society by it at the time of execution of the sale deed in the name of the Society. As if this was not enough, on 10.11.98, in response to a letter dated 4.10.98 from the Chief Promoter, the Board stated that the land can be transferred only after forming the Society. Thereafter, there is written correspondence. On 24.12.1998, the Board issued the following certificate at the request of the Chief Promoter:
This is to certify that the flats from 37 to 72 in H.I.G. scheme in Phase-II at Porvorim have been allotted to the intending purchasers. The title of the land covering the said flats and the buildings as per the plans approved by the Associate Town Planner vide No. DB/9838/1292/95 dated 21.4.1994 and as approved by V.P. Penha de Franca under ref. No. VP/PDF/Const-licen/54/95-96 dated 28.11.95 for the purpose of managing and maintaining, will be handed over to the proposed Society as soon as it is registered. The relevant true copies of approved site plans and building plans (blue print) pertaining to Phase-II and title of land are enclosed herewith for reference.
This certificate is issued at the request of Shri G. S. Desai, Chief Promoter proposed Housing Society.
45. It is too late in the day to urge that the Executive Engineer had no authority to make any commitment on behalf of the Board. The letters have been written way back in 1998 and the affidavits raising such an issue are filed after institution of the writ petition. For years together, the Board did not controvert any of the statements in these letters, nor disputed the genuineness or authenticity of the Certificate. It never raised the issue of authority of the Executive Engineer to make any commitment on behalf of the Board. It is well settled that the Board performs a duty and obligation to undertake housing schemes for poor, middle income and high income groups of the society. Once it undertakes this obligation and functions as part of a welfare State and represents the State, then, it has to act fairly, reasonably, and in a transparent manner. It cannot take a stand that its Officers are not authorized to address such communications for the first time in this Court and that too after considerable time has elapsed from the date thereof.
46. On 12.4.99, the Board issued a fresh certificate and the same reads as under:
We confirm having received your communication of registration of proposed Co-op. Housing Society for H.I.G. flats bearing Nos. from 37 to 72. Now in supercession of our earlier certificate, we advise to you to enroll Allottees of Flat Nos. 1 to 36 Phase I, as we intend to transfer the title of Plot A, (undivided) on which H.I.G. 72 flats have been constructed. On confirmation of forming Managing Committee of Society, we shall carry out all necessary formalities of executing sale deed of plot - A and flats.
47. After the Occupancy Certificate was issued and the Society was formed, the Board has been continuously approached by the Members. The Board, thereafter, speaks through one G.A. Pal, Executive Engineer, and he addresses a letter to the Chairman of the Petitioner Society on 24.2.2000 and states that the Society should look after self management of the premises. The only duty of the Board is to remove structural defects. The Board states that the sale deed will be executed after payment of all dues by the Allottees. Thereafter also the matter was followed up by the petitioner, but at no stage the Board took the stand that its communications are not valid or that it does not stand to commit in any manner to execute a sale deed.
48. Surprisingly, the Board raised the issue of authority of Shri Radhakrishnanan, Executive Engineer for the first time in the affidavit, which has been filed in this Court on 6.9.04. The relevant portion of the said affidavit has been reproduced by us hereinabove. The Board may very well say in 2004 that this Executive Engineer did not address this letter on behalf of the Board, but it does not, in any manner, dispute the authority of Shri Pal another Executive Engineer when he addressed the letter on 24.2.2000. Therefore, the Board cannot pick and choose letters addressed to the petitioner by one of its Executive Engineer as being lacking in authority, while not disputing the authority of another Executive Engineer when he issues identical letter on 24.2.2000. The Board cannot approbate and reprobate and blow hot and cold at the same time. More so, when the Board is a Statutory Body and has not disputed that the terms and conditions in the scheme contemplated formation of a Co-operative Housing Society by the Allottees. In such circumstances, we do not permit the Board now to raise the issue of authority of its Executive Engineer who addressed a letter to the petitioner Society dated 24.12.1998.
49. In the latest affidavit of the Board, it does not dispute that the 72 flats were constructed on Plot 'A'. All that it disputes is the area calculation. It does not deny its obligation to execute a sale deed in favour of the petitioner, but expresses its inability to do so because 12 sale deeds have been executed with 12 purchasers/Allottees between 1998 to 2008. Admittedly, there are 72 flat purchasers and it is not the case of the Board that the Society does not have requisite number in law. Merely because it has executed sale deeds with regard to the individual flats, there is nothing in law which prevents them from executing a sale deed in favour of the petitioner36 Society or such other document transferring rights in its favour to manage and administer the affairs with regard to the 72 flats, including maintenance thereof. Appropriate stipulations and recitals in that behalf can always be made part and parcel of such comprehensive sale deed. The Resolution of the Board dated 17.12.2003 or the decision taken at the same does not, in any manner, preclude the petitioner Society from calling upon the Board to enforce its obligation and fulfill its promise as mentioned in the letters and documents. We are in agreement with Shri Kakodkar that the Board is merely postponing execution of the sale deed. It is not as if the Board is not ready and willing to execute the sale deed in respect of the area admeasuring 6,667 sq. metres in favour of the individual allottee. When the dispute about area is raised by the Board, then, all the more, the Board must fulfill its promise to the Allottees, so also comply with all the statements made on oath before this Court.
50. In a decision reported in Sunil Pannalal Banthia and Ors. v. City and Industrial Development Corporation of Maharashtra Ltd. and Anr. : AIR2007SC1529 , the Honourable Supreme Court has following to say about the nature and duties and the functions to be discharged by the authority like the Board:
9. Referring to the decision of the Court of Appeal in the case of Falmouth Boat Construction Limited v. Howell reported in (1950) 1 All ER 538, Mr. Cama referred to the observations made by Lord Denning with regard to the steps taken on the basis of an oral assurance. While dealing with the situation where a Ship Builder had proceeded to effect repairs on the basis of an oral direction, Lord Denning held that whenever Government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know and cannot be expected to know, the limits of their authority and he ought not to suffer if they exceed it.
11. In this connection, Mr. Cama also referred to the decision of this Court in the case of Century Spinning and . and Anr. v. The Ulhasnagar Municipal Council and Anr. reported in : [1970]3SCR854 , wherein it was observed as under:
Public bodies are as much bound as private individuals to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. The obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise: when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be enforced against it in appropriate cases in equity. In Union of India and Ors. v. Indo-Afgan Agencies Ltd. : [1968]2SCR366 , this Court has held that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudice, relying upon the representations as to its future conduct made by the Government. This Court held that the following observations made by denning, J., in Robertson v. Minister of Pensions (1949) 1 KB 227, applied in India:
The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action.We are in this case not concerned to deal with the question whether Denning, L.J., was right in extending the rule to a different class of cases as in Falmouth Boat Construction Co. Ltd. v. Howell (1950) 1 All ER 538, where he observed at p. 542:
Whenever Government officers in their dealings with a subject take on themselves to assume authority in a matter with which the subject is concerned, he is entitled to rely on their having the authority which they assume. He does not know, and cannot be expected to know, the limits of their authority, and he ought not to suffer if they exceed it. It may be sufficient to observe that in appeal from that judgment (Howell v. Falmouth Boat Construction Co. Ltd.) (supra) Lord Simonds observed after referring to the observations of Denning, L.J.:
The illegality of an act is the same whether the action has been misled by an assumption of authority on the part of a Government officer however high or low in the hierarchy.
The question is whether the character of an act done in force of a statutory prohibition is affected by the fact that it had been induced by a misleading assumption of authority. In my opinion the answer is clearly: No.
21. Although, we were at one stage inclined to remit the matter to the High Court since the writ petition had not been considered on merits and had been dismissed on the existence of an alternate remedy by way of suit, after considering the submissions made on behalf of the respective parties, we have decided otherwise. We are inclined to accept Mr. Cama's submission that the facts of this appeal are different from those which have been earlier remitted to the High Court for re-consideration on merits and also for making a re-valuation. In the present appeal, we are only concerned with the question of law as to whether CIDCO had acted in excess of its jurisdiction and authority in cancelling the allotment made to the appellants on a unilaterally consideration that allotment had been made in contravention of its rules and regulations and was thereby opposed to public policy and was illegal and void in terms of Section 23 of the Contract Act, 1872. No decision is required to be taken in the matter of facts, which could have merited an order of remand.
51. All actions of the Board have to be in conformity with the mandate of Article 14 of the Constitution of India. The Board has made a promise to the petitioner and it is too late in the day to urge that the said promise and obligation arises out of a contract and, therefore, writ could not lie to direct the Board to fulfill the same. The petitioner was not even registered and incorporated when it undertook correspondence with regard to the obligation of the Board to grant permission to form a Society. That the correspondence is exchanged with the Chief Promoter of the proposed Society is not in dispute before us. That after registration of the Society, the petitioner corresponded and that is how the letter/certificate dated 24.2.2000 came to be issued, is also not in dispute. In such circumstances, the Board must be held by its promise and representation made to the petitioner and directed to execute a sale deed covering undisputed area i.e. 6,667 sq. metres. That such a direction can be issued not only by invoking principles of promissory estoppel, but by applying the mandate of Article 14 of the Constitution of India and the principles of fairness and reasonableness enshrined therein.
52. In the affidavits filed before us, the Board does not dispute that it allowed formation of the Society with regard to an area where it constructed 35 MIG flats. That was a scheme at Porvorim itself. Apart from the other criteria, the Board permitted formation and registration of the Society and even executed a Sale Deed in favour of the housing Society formed by the flat purchasers/owners. That Society is known as 'Golden Era Society '. If under one scheme which is implemented at Porvorim itself, the Board permits formation of Society and transfers the land to such Society, then, it is apparent that the Board is discriminating as far as the present petitioner is concerned. Having held out that the management of the building would be looked after by the Society of the Allottees and thereafter issuing certificate permitting formation and registration of the Society, the Board cannot now turn around and refuse to comply with its own assurance and promise. The Board has not been acting fairly and reasonably as far as the petitioner Society is concerned. While it is true that the dispute with regard to measurement and demarcation of the area cannot be resolved in writ jurisdiction, this Court in the light of the undisputed factual position and clear stipulations and statements in the documents of the Board, can always direct a Statutory Body to abide by its clear statement on oath. A Statutory Body like the Housing Board must be held to be bound by its own scheme and stipulations thereunder. It cannot deny to the citizens fair and just terms when they have acted in pursuance of the Housing Scheme framed and implemented by the Board and become part of the project. That the Board is an instrumentality or agency of the State is undisputed. It is bound by Article 14 of the Constitution of India, is also undisputed. Therefore, the Board must fulfill its obligation under the Constitution and make the right to life meaningful, purposeful and complete. That is something which can always be directed in writ jurisdiction. Hence, we are of the view that to the extent of the area mentioned in the affidavits of the Board and about which there is no dispute, relief can be granted in favour of the petitioner.
53. In the view that we have taken considering the factual position in this case, we deem it not necessary to refer to the decisions cited at the Bar. Suffice it to state that the doctrine of promissory estoppel is well settled and needs no reiteration. It is a doctrine based on equity and justice and we have applied that doctrine itself in addition to the mandate of Article 14 of the Constitution of India. Hence, reference to the cases cited is not necessary. Further, we have given our reasons for maintainability of this writ petition to the limited extent as indicated above. That view has been taken in peculiar facts of the present case. We should not be understood as having laid down any general principle. Ultimately, whether the claim vide prayers (a) and (b) can be granted or not, depends upon the facts and circumstances of each case. Issue of maintainability of a writ petition in such matters is a mixed question. We cannot lay down any general proposition. Considering the undisputed factual position emerging from the documents of the Board itself, that we have taken the view that the writ petition is maintainable. Hence, it is not necessary to make a detailed reference to the decisions cited on the point of maintainability. None dispute the fact that the Board is amenable to writ jurisdiction and a writ would lie against it for directing it to fulfill its statutory duties, so also the duties and obligations under a mass housing scheme. Therefore, depending upon the factual position, relief in writ jurisdiction can be granted and there are a number of instances were such reliefs are granted. Therefore, it is unnecessary to reiterate and reproduce the settled principles.
54. In the result, Rule is made absolute in terms of prayer Clause (a). However, the Board shall execute a Sale Deed in favour of the petitioner, initially by transferring title of Plot 'A' by taking into account the area of 6,667 sq. metres.
55. As far as prayer Clause (b) is concerned, we are of the view that unless and until title is transferred in favour of the petitioner, it cannot seek any direction to remove any alleged encroachment on Plot 'A'. Let Plot 'A' be transferred to the extent indicated above in favour of the petitioner Society and, thereafter, it can raise issue of alleged encroachment by Plot 'B' in appropriate proceedings and liberty is granted in that behalf to the petitioner. All disputes and issues, so also pleas with regard to the alleged encroachments are kept open.
56. The Board has, in the affidavit filed on 7.8.08, stated that the area of 10,561 sq. metres has been mentioned without verifying the plot measurement and area available at site, so also deducting the area covered by roads/open spaces. Thus, the area calculation is disputed by the Board and in the affidavit in para 10, it has referred to a communication dated 30/7/2008 by which respondent No. 2 Board has requested the Dy. Collector to depute the Official Surveyor of Land Survey Department, Government of Goa for re-demarcation of the said land. The Board, therefore, prays for time to complete re-demarcation.
57. It is undisputed before us that together with the Board, State of Goa is also a party respondent to the petition. In such circumstances, interest of justice would be further sub-served if we direct the Dy. Collector Bardez, so also the Official Surveyor of Land Survey Department deputed by him to complete the re-demarcation of Plot 'A' as requested in the letter dated 30.7.08, as expeditiously as possible and within a period of two months from today. The re-demarcation be done in the presence of the representatives of the flatholders in both schemes namely, Plots 'A' and 'B' In the meanwhile, Sale Deed in respect of the undisputed area can always be executed and we grant 4 weeks time to the Board to execute the Sale Deed in respect of 6,667 sq. metres of land. As far as the balance area is concerned, the Petitioner is at liberty to institute such proceedings as are permissible in law and all contentions of both sides in that behalf are kept open. It is clarified that merely because the petitioner is a party to the sale deed to the extent of 6667 sq. metres, will not preclude it from claiming the larger area after the redemarcation and measurement as directed above is complete. Until redemarcation is done, the Board will not develop or construct upon the area designated as open spaces for the subject plots 'A' and 'B', so that these areas can also be dealt with in accordance with law.
58. The writ petition is disposed off with the above orders and directions. However, there will be no orders as to costs.