Punjab-Haryana High Court
Fuljit Kaur vs State Of Punjab And Ors. on 21 December, 1999
Equivalent citations: (2000)125PLR4
Author: N.K. Sud
Bench: N.K. Sud
JUDGMENT G.S. Singhvi, J.
1. The petitioner has prayed for quashing of the notice Annexure P-4 dated 25.3.1992 issued by the Estate Officer, Urban Estate, Punjab (Respondent No.3) for payment pf balance of price of the plot allotted to her.
2. Briefly stated, the facts of the case are that on the basis of application submitted by her for allotment of plot under the discretionary quota of the government, the Superintendent Housing-I, Department of Housing and Urban Development, Government of Punjab sent memo Annexure P-1 dated 12.2.1987 to the Director, Housing and Urban Development, Punjab conveying the government's decision of allot to the petitioner a residential plot measuring 400 sq. yards in the Urban Estate, S.A.S. Nagar (Sector 70). Soon thereafter, respondent No.3 issued memo Annexure P-2 for allotment of plot No. 702 in Sector 70, Urban Estate, S.A.S. Nagar to the petitioner. Paragraphs 1 and 4 of the said memo read as under:-
"1. Plot No.702 measuring 400 sq. yards in Sector 70 Urban Estate, S.A.S. Nagar has been allotted to you. Since the rate on which the allotment is to be made in this sector, has not-been finally approved, accordingly, this allotment is being made on the provisional price of Rs.93,000/-. The tentative price of the plot would be intimated to you after its having been approved by the Government.
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4. The above price of the plot is subject to variation with reference to the actual measurement of the site as well as in case of enhancement of compensation by the Court or otherwise and you shall have to pay the additional price of the plot, if any, determined by the department within 30 days of the date of demand in case of sale by allotment."
3. Vide memo Annexure P-3 dated 8.4.1987, the schedule of payment was conveyed to the petitioner. After five years, the impugned notice Annexure P-4 was sent to her for payment of price which was fixed as Rs.3,12,000/- by the State Government.
4. The petitioner has challenged Annexure P-4 by contending that it is ultra vires to the provisions of the Punjab Urban Estate (Sale of Sites) Rules, 1965 (hereinafter referred to as 'the 1965 Rules'). According to her, the government's decision to charge price of the plot @ Rs.3,12,000/- instead of Rs.93,000/- mentioned in the letter of allotment is wholly arbitrary and unjustified and, in any case, additional price cannot be charged because there has been no enhancement in the compensation payable to the land owners. Civil Miscellaneous application No.27245 of 1999 has been filed by her for stay of the demand notice, dated 15.10.1999 (Annexure P.1) issued by the Estate Officer, Punjab Urban Planning and Development Authority, Mohali requiring her to deposit balance of the tentative price. She has also prayed that the main petition may be allowed in terms of the order passed by the High Court in C.W.P. No. 13283 of 1991.
5. Shri Deepak Arora, counsel for the petitioner relied on the decision of the Division Bench in D.S. Longia and Anr. v. The State of Punjab and Ors., A.I.R. 1993 Punjab and Haryana 54 and argued that in view of the invalidation of the demand of additional price, demand notices Annexure P.4 and A.1 issued by respondent No.3 and the Estate Officer, PUDA, Mohali respectively should be declared as void and quashed. He asserted that the judgment of D.S. Longia's case (supra) should be deemed to have become final with the dismissal of petitions for Special Leave to Appeal filed by the State Government and, therefore, the respondents should be restrained from coercing the petitioner to pay the additional price.
6. We havcgiven serious thought to the submission of the learned counsel but are unable to agree with him that the demand notices Annexure P.4 and Annexure A.1 should be quashed in view of the decision of D.S. Longia's case (supra). The question as to whether the notice issued by the concerned authority to an allottee requiring him to pay the price fixed by the government is contrary to the provisions of the Punjab Urban Estate (Development and Regulation) Act, 1964 (hereinafter referred to as 'the 1964 Act') and the rules framed thereunder has been considered in detail and answered against the petitioner in the recent judgment titled as Devinder Cheema v. State of Punjab and Anr., (1999-1)121 P.L.R. 14 = I.L.R. 1999(1) Punjab and Haryana 240. In that case, a Division Bench of which one of us was a member considered the provisions contained in Sections 3 and 23 of the 1964 Act and Rules 2(aa), 2(e), 4 and 5(a) of the 1965 Rules and the judgments of this Court and the Hon'ble Supreme Court in D.S. Longia's case (supra), C.W.P. No. 14105 of 1992, Gurcharan Singh v. State of Punjab, decided on 21.11.1996; C.W.P. No.14927 of 1996, Ajaib Singh v. State of Punjab and Ors., decided on May 21, 1997 and Preeta Singh v. Haryana Urban Development Authority and Ors., J.T. 1996(5) S.C. 634 and then held as under:-
"We have thoughtfully considered the respective submissions. Section 3(1) of the Act empowers the State Government to declare any area comprising land belonging to it or acquired by it whether situate within or without the limits of a local authority to be an urban estate for the purpose of the Act. Sub-section (2) of Section 3 says that subject to the provisions of the Act, the State Government may sell, lease or otherwise transfer, whether by auction, allotment or otherwise, any land or building belonging to the State Government in an urban estate on such terms and conditions as it may, subject to any rule made under the Act, think fit to impose. Proviso to this sub-section says that the sale, lease or other transfer of any land in an urban estate shall sot be made in contravention of the requirement of a lay out plan or zoning plan if any, prepared in respect of such urban estate or part thereof and approved by the prescribed authority in accordance with the procedure laid down by the State government from time to time. Section 23(1) contains an omnibus provision empowering the State Government to make rules for carrying out the purposes of the Act. Under Section 23(2)(a) and (b), the government is competent to make rules to determine the terms and conditions on which any land or building may be transferred by the government and the manner in which the consideration money for any transfer, may be paid. In exercise of this power, the State Government framed the 1965 Rules. Rule 2(aa) and 2(e), Rule 4 and Rule 5-A of the Rules which have direct bearing on the questions raised in this petition read as under:
"2(aa): 'additional price' means such sum of money as may be determined by the State Government, in respect of the sale of a site by allotment, having regard to the amount of compensation by which the compensation awarded by the Collector for the land acquired by the State Government of which the site sold forms a part, is enhanced by the Court on a reference made under Section 18 of the Land Acquisition Act, 1891, and the amount of cost incurred by the State Government in respect of such reference.
2(e)" 'tentative price' means such sum of money as may be determined by the State Government from time to time, in respect of the sale of a site by allotment, having regard, among other matters, to the amount of compensation awarded by the Collector under Land Acquisition Act, 1894, for the land acquired by the State Government of which the site sold forms a part. 4. Sale Price.- In case of sale of a site by allotment the sale price shall be,-
(a) where such site forms part of the land acquired by the State Government under the Land Acquisition Act, 1894, and-
(1) no reference under Section 18 thereof is made against the award of the Collector or such reference having been made has failed, the tentative price;
(ii) on a reference made under Section 18 thereof the compensation awarded by the Collector is enhanced by the Court, the aggregate of the tentative price and the additional price;
(b) in any other case, such final price as may be determined by the State Government from time to time.
(2) In the case of sale of a site by auction, the sale price shall be such reserve price as may be determined by the State Government from time to time or any higher price determined as a result of bidding in an open auction.
5-A. Liability to pay additional price.
(1) In the case of sale of a site by allotment, the transferee shall be liable to pay to the State Government, in additional to the tentative price, the additional price, if any. determined in respect thereto under these rules.
(2) The additional price shall be payable by the transferee within a period of thirty days of the date of demand made in this behalf by the Estate Officer:
Provided that the Chief Administrator may, in a particular case, and for reasons to be recorded in writing allow the applicant to make payment of the said amount within a further period not exceeding thirty days."
A conjoint reading of the rules, quoted above, shows that the tentative price transferee is the price fixed by the government in terms of Rule 4 and not the additional price determined under Rule 2(aa). In our view, the very edifice of the challenge to the notice is based on ah erroneous premise that what is being charged from the petitioner is the additional price whereas the demand raised by the competent authority represents the sale price fixed by the government. Therefore, the notice Annexure P.2 cannot be declared ultra vires to the Rules or without jurisdiction."
7. The Court further held that after having accepted the allotment, the petitioner cannot turn around and challenge the conditions contained in the allotment letter. The judgment of D.S. Longia's case (supra) was dealt with in Devinder Cheema's case in the following manner:-
"The judgment of the Division Bench in D.S. Longia's case cannot be made basis for giving relief to the petitioner because,
(a) the proposition laid down by the Division Bench can no longer be regarded as correct law in view the pronouncement of the Apex Court in Preeta Singh's case (supra);
(b) the judgment of the learned Single Judge in Gian Jyoti Educational Society v. Estate Officer, Urban Estate, Punjab and Ors., A.I.R. 1992 P and H 75, which was followed by the Division Bench did not have any bearing on the issue raised in D.S. Longia's case. A careful reading of the judgment of the learned Single Judge in Gian Jyoti Educational Society's case shows that the demand which was impugned by the petitioner represented the additional price and not the tentative price as defined in Rule 2(ee). The learned Single Judge held that after fixation of tentative price, the additional price can be charged only if the compensation payable to the land owners was increased on a reference made under Section 18 of the Land Acquisition Act, 1894. This is clearly discernible from the following observation made by the learned Single Judge:
"Under Rule 2(aa) of the Rules, 1965, after the fixation of the tentative price the increase in the price could only be made in terms of additional price in a situation where the compensation awarded by the Collector with respect to the land was enhanced by the Court under reference under Section 18 of the Land Acquisition Act, 1894 or in appeal before the Court. Where the land allotted to the petitioner had been acquired under the Land Acquisition Act and the tentative price had been fixed by the Government in terms of the rule, and the allottee was required to pay in addition to the tentative price only the additional price and thee has been no increase or enhancement of the compensation which had become payable to the land owners on account of some award or judgment in appeal with respect to the land in question, there was no legal basis for making the quantum jump from Rs.3(V- to Rs.255/- per square yard and the action of the authorities, therefore, in increasing the rate of allotment is of the site is to be fixed by the government in accordance with Rule 4 of the Rules and the additional price is to be determined by the State Government haying regard to the amount of compensation as enhanced by the competent Court under Section 18 of the Land Acquisition Act, 1894 and the amount of cost incurred by the State Government in respect of such reference. The liability of the transferee to pay the additional price emanates from Rule 5-A of the Rules. However, the additional price can be demanded only on the basis of determination made in accordance with Rule 2(aa) of the Rules and not otherwise.
If the validity of the notice Annexure P.2 is tested in the light of the above analysis of the relevant rules, it is not possible to accept the submission of Shri Patwalia that the impugned demand is ultra vires to the Rules. What is sought to be realised from the contrary to the provisions of the Act and the Rules and also arbitrary and could not be sustained."
8. As against this, the amount sought to be charged from the petitioners in D.S. Longia's case, was not the additional price but the tentative price fixed in accordance with Rule 4 of the Rules. Therefore, the Division Bench was not right in applying the ratio of Gian Jyoti Educational Society's case (supra).
9. The argument of Shri Patwalia that the withdrawal of Special Leave Petition filed by the State Government against the judgment of the Division Bench in D.S. Longia's case is sufficient to invalidate the notice Annexure p-2 issued by the Estate Officer cannot be accepted for the following reasons:-
(i) The withdrawal of the Special Leave Petition was secured by the State Government ignoring the fact that in the order their Lordships of the Supreme Court had expressed doubts about the correctness of the impugned judgment by making the following observations:
"In the instant matter as also in the matters enumerated in the letter of Mr. G.K. Bansal, Advocate for the petitioners dated January 25, 1994, seeking withdrawal of all these matters, we are constrained to remark that no reasons have been assigned as to why the State of Punjab is submitting to the impugned orders of the High Court which prima facie appear to us to be unsustainable. The direct result of the withdrawal would not only be compounding to an illegality but would otherwise cause tremendous loss to the State exchequer. We, therefore, direct that the reasons which impelled the State to seek withdrawal of these matters be placed before us in the form of an affidavit by the Chief Secretary, Punjab or the Secretary of the Department concerned justifying the step for seeking withdrawal."
(ii) In the affidavit filed by Shri R.S. Mann, the then Secretary of the Department, in the Apex Court in support of the government's plea for withdrawal of the petition for Special Leave to Appeal, a totally distorted version of the background in which the demand of price had been raised, was presented before the Apex Court. It appears that he intentionally omitted to mention the fact that the allotments had been made to the ' petitioners on provisional price while reserving the right to charge the price fixed by the government. Thus, Shri Malhotra appears to be right in his submission that the withdrawal of the petition for Special Leave to Appeal was manipulated to help some influential persons and this should not be made, a ground to invalidate the impugned notice, which is otherwise in accordance with law.
(iii) Secondly, the withdrawal of petition for Special Leave to Appeal by the State Government cannot be made basis for granting relief to the petitioner because such withdrawal cannot preclude the respondents from projecting their case in a correct perspective."
10. In view of the law laid down in Devinder Cheema's case (supra), the prayer made by the petitioner for quashing the Impugned demand notices cannot be accepted. In Devinfiler Cheema's case (supra) as also in the petitioner's case, the price indicated in the allotment letter was provisional with a clear stipulation that the allottee shall have to pay the price fixed by the Government and further that the same is subject to variation with reference to the actual measurement of the site as well as in case of enhancement of compensation by the Court or otherwise. The word 'otherwise' used in para 4 of the allotment letter is of wide import and immense significance. It takes within its fold the change in price on account of factors other than the variation in the measurement of the plot or enhancement in the amount of compensation by the Court. The fixation of the price by the government in terms of Rule 4 of 1965 Rules can also be brought within the ambit and scope of "otherwise". Therefore, after having agreed to pay the changed price, the petitioner cannot question the legality of the demand notice issued by the competent authority on the basis of the tentative price fixed by the government.
11. No other point has been argued 12. For the reasons mentioned above, the writ petition is dismissed.