Punjab-Haryana High Court
V.K. Kapoor & Others vs Haryana Urban Development Authority & ... on 24 July, 2013
Author: Jaspal Singh
Bench: Jaspal Singh
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Date of Decision: July 24, 2013
1.
Regular Second Appeal No.2544 of 2000 (O & M)
V.K. Kapoor & others
..... APPELLANTS
VERSUS
Haryana Urban Development Authority & others
..... RESPONDENTS
...
2. Regular Second Appeal No.914 of 2000 (O & M) Subhash Chander Bansal ..... APPELLANT VERSUS Haryana Urban Development Authority & another ..... RESPONDENTS ...
3.Regular Second Appeal No.968 of 2000 (O & M) Subhash Chander Bansal ..... APPELLANT VERSUS Haryana Urban Development Authority & another ..... RESPONDENTS ...
4.Regular Second Appeal No.1397 of 2000 (O & M) Abinav Gupta ..... APPELLANT VERSUS Haryana Urban Development Authority & others ..... RESPONDENTS Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [2] ...
5.Regular Second Appeal No.1458 of 2000 (O & M) Mohan Lal Gupta & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & another ..... RESPONDENTS ...
6.Regular Second Appeal No.1459 of 2000 (O & M) Mohan Lal Gupta & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & another ..... RESPONDENTS ...
7.Regular Second Appeal No.1787 of 2000 (O & M) Satyabir Singh & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & others ..... RESPONDENTS ...
8.Regular Second Appeal No.1788 of 2000 (O & M) D.K. Kalra & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & others Thakral Rajeev 2014.01.16 13:26 ..... RESPONDENTS I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [3] ...
9.Regular Second Appeal No.1818 of 2000 (O & M) Dina Nath Bhinder & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & others ..... RESPONDENTS ...
10.Regular Second Appeal No.1819 of 2000 (O & M) Ramesh Chand Jain & others ..... APPELLANTS VERSUS Haryana Urban Development Authority & others ..... RESPONDENTS ...
11.Regular Second Appeal No.3365 of 2000 (O & M) Harinder Kumar Singal ..... APPELLANT VERSUS Haryana Urban Development Authority, Sector 6, Panchkula ..... RESPONDENT ...
12.Regular Second Appeal No.1865 of 2001 (O & M) Lalit Kumar ..... APPELLANT VERSUS Haryana Urban Development Authority & another Thakral Rajeev 2014.01.16 13:26 ..... RESPONDENTS I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [4] ...
CORAM: HON'BLE MR. JUSTICE JASPAL SINGH ...
PRESENT: - Mr. Arun Jain, Senior Advocate, with Mr. Amit Jain, Advocate; Mr. Ashish Aggarwal, Senior Advocate, with Mr. Kulwant Singh, Advocate and Mr. Ankit Aggarwal, Advocate; Ms. Madhu Sehgal, Advocate, for Mr. Siresh Gupta, Advocate; Mr. C.B. Goel, Advocate, with Mr. Manoj Sharma, Advocate; Mr. Sanjeev Gupta, Advocate, for the appellants.
Mr. J.P. Bhatt, Advocate; Mr. K.L. Suneja, Advocate and Mr. Raman Gaur, Advocate, for HUDA.
. . .
Jaspal Singh, J
1. By this common judgment all the aforementioned appeals shall be decided together since they involve common questions of law and facts. For the purpose of disposal of the above-said regular second appeals, the facts have been recapitulated from RSA No.2544 of 2000; V.K. Kapoor and others v. Haryana Urban Development Authority and others.
2. The plaintiffs are in appeal. A civil suit titled "Dr. Rajesh Attri & others vs. Haryana Urban Development Authority & another" was instituted on November 25, 1988 at Thakral Rajeev 2014.01.16 13:26 the instance of plaintiffs seeking a declaration that notice dated I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [5] 5.10.1988, claiming additional price of the plots, issued by defendant No.2, Estate Officer, Haryana Urban Development Authority, Karnal (hereinafter referred to as "HUDA") under Regulations 2(b) and 10 of the Haryana Urban Development (Disposal of Land & Building) Regulations, 1978 (for short, "Regulations") read with Clause 9 of the allotment letters, being illegal, void, without jurisdiction and not binding on the plaintiffs and that the official respondents are not liable to recover any amount. The plaintiffs also sought permanent injunction restraining the defendants from realizing the above said additional price and not to resume the plots of the plaintiffs on the ground of non-payment of additional price as claimed in impugned notices.
3. HUDA planned Sectors 8 and 9 in the town of Karnal for which purpose land measuring 302.34 acres was acquired. The land owners were awarded the compensation for various categories of land. The acquired land was proportionately divided into various categories including residential plots. An advertisement was issued for sale of residential plots in Sectors 8 and 9. The price of the plots was payable in installments. However, vide impugned notice dated October 5, 1988, the respondent - HUDA demanded additional price. The plaintiffs claimed that the defendant-respondents did Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [6] not afford any opportunity of hearing to them before demanding the additional price.
4. The suit was contested by the defendants on the plea that price of the plots was tentative and was payable in installments. The enhanced compensation was spread over the saleable area, proportionately. There was no provision in the Haryana Urban Development Authority Act, 1977 (in short "Act") to hear the allottees before determining the additional price. The defendants tried to justify the demand of additional price that it is determined on the basis of enhanced compensation.
5. From the pleadings of the parties, the trial court framed the following issues:-
"1. Whether the notices dated 5.10.1988 is illegal, void and is not binding upon the rights of the plaintiffs, is to what effect? OPP
2. Whether the civil court has no jurisdiction? OPD
3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
4. Whether the suit has not been filed by properly authorized person? OPD
5. Whether the suit is not maintainable in the present form? OPD
6. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD
7. Relief."
6. After appreciating the evidence led by the parties and having considered the contentions raised, the learned trial Thakral Rajeev court decided the issues in favour of the plaintiffs and decreed 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [7] the suit vide judgment and decree dated September 18, 1996 with direction to the defendant-respondents to recover the additional price, to be recalculated after proportionately dividing the amount of the enhancement of the entire land covered by the scheme among the area under residential plots, shopping centre, group housing, EWS, institutional area, HUDA land and clinic.
7. The official respondents assailed the aforesaid judgment and decree passed by the learned trial court in appeal before the lower appellate court. The appellate court vide judgment and decree dated December 1, 1999 accepted the appeal and dismissed the suit filed by the plaintiffs with costs, however, the findings of the trial court on Issue Nos.4 and 5 were affirmed. Hence the present regular second appeal.
8. I have heard the arguments of learned counsel for the parties and perused the record.
9. While assailing the impugned judgment and decree, it has been argued by the learned counsel for the appellants that the same are absolutely against the evidence available on record and settled cannons of law. Mis-appreciation of the facts, evidence and legal proposition applicable to the facts and circumstances has resulted into miscarriage of justice. The learned lower Appellate Court has committed grave error while holding that the jurisdiction of Civil Court to adjudicate Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [8] the matter in controversy is barred under Section 50 (2) of the Act. In fact, in the case in hand the demand raised by the respondents as an additional price on the basis of enhanced compensation is not inconsonance with Clause 9 of the allotment letter which specifically provides that the enhanced compensation would be spread over proportionately on the entire area of the scheme. Whereas, in the case in hand, the major portion of the enhanced compensation has been foisted upon the appellants/plaintiffs and not proportionately to all the categories of the plots. Not only this, even the respondents have charged less compensation from the area owned by them as well as the other categories of the land. Even the enhanced price of the land reserved for school, police post, community centre, religious places and fire station etc. have not been charged proportionately. Rather, that burden has been put on the appellants/plaintiffs i.e. the plot holders of the residential area. The calculation of the additional price reflected in the demand notice dated October 5, 1988 is absolutely illegal and in utter disregard of the mandatory provisions of law as well as against the principles of natural justice. Even no notice was served upon any of the appellants by the respondents before the issuance of the demand notice. To buttress this contention, learned counsel for the appellants has placed reliance on the Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [9] pronouncement of this Court delivered in case Subhash Chander Arora v. The Housing Board, Haryana, Chandigarh through its Chief Administrator and others; 1991(2) PLR 698, in which, it was observed that once the Court enhances the compensation of the land, the allottees of the commercial properties have to bear the burden proportionately of the enhanced compensation alongwith the allottees of the residential property.
10. It has further been argued by the learned counsel for the appellants that non providing of an opportunity of being heard prior to making of calculation of the additional amount as well as the issuance of demand notices is itself a glaring circumstance of the violation of the principles of natural justice. Moreover, in this lis, the learned lower Appellate Court has completely given go-bye to the settled principles of law with regard to the jurisdiction of the Civil Court by simply relying upon the provisions contained in Section 50 of the Act. It is well settled that an order passed by the Tribunal or Special Jurisdiction in violation of the provisions of statute or principles of natural justice is a nullity and is open to challenge in Civil Court even if statute expressly bars jurisdiction of Civil Court to entertain suit to challenge validity or legality of the order passed by such a Tribunal. In support of this contention, learned Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [10] counsel for the appellant has relied upon the pronouncement of the Full Bench of this Court delivered in case of State of Haryana and others v. Vinod Kumar and others; 1986 PLJ
161. While placing reliance upon the pronouncement of Hon'ble Apex Court captioned as Dhruv Green Field Ltd. v. Hukam Singh; 2002(3) R.C.R. (Civil) 690, it has been submitted by the learned counsel for the appellants that in cases where the jurisdiction of Civil Court is barred expressly or impliedly, the Court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. It is further contended that in the case in hand the demand notices being in clear cut violation of the statute, rules and principles of natural justice are nothing but nullity. As such, the findings rendered by the learned lower Appellate Court in this regard deserve to be reversed.
11. While concluding his arguments, it has been submitted by the learned counsel for the appellants that the impugned judgment and decree are not sustainable in the eyes of law and as such, the same are liable to be set aside by way of acceptance of the appeals and the suit of the appellants/plaintiffs deserves to be decreed upholding the judgment and decree of the trial Court.
Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [11]
12. Per contra, learned counsel representing the respondents has supported the judgment and decree of the learned lower Appellate Court contending that the same are absolutely inconsonance with the evidence, facts and circumstances and legal proposition applicable to the case in hand. It is an undisputed fact that as per Clause-9 of the allotment letter, an allottee is under an obligation to pay the amount on enhancement of price of the acquired land. Moreover, the enhanced compensation of the acquired land has been proportionately demanded from all the plot holders and the other categories absolutely in accordance with law. As far as the jurisdiction of Civil Court is concerned, the contention of the learned counsel for the respondent is that it is specifically barred under Section 50 of the Act and it has been rightly so observed by the learned lower Appellate Court. Accordingly, the instant appeals are devoid of any merit and deserve to be dismissed with special costs.
13. This Court has given a thoughtful consideration to the rival contentions put-forth by the learned counsel for the parties and has minutely scanned the records available. Before deciding the matter in controversy on merits, it would be apt and proper to mention here that the substantial questions of law which arise for determination in these appeals are whether there Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [12] is any disproportionate distribution of enhanced price of acquired land of which, the demand from the appellants- plaintiffs has been made; that whether the jurisdiction of Civil Court to adjudicate this instant lis is barred by Section 50 of the Act and that the findings of the learned lower Appellate Court in this regard are perverse. The parties to the instant lis have not disputed the existence and application of Clause-9 of the allotment letter which runs ut-infra:
"9. The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent authority under the Land Acquisition Act shall also be payable proportionately as determined by the Authority. The additional price determined shall be paid within thirty days of its demand."
14. A glance at the aforesaid clause makes it crystal clear that the respondents were entitled to demand additional price of the allotted plots on enhancement of the price of the acquired land by the Tribunal/Court.
15. As per the case of the respondents, the enhanced amount of the plots from the allottees was demanded on account of the enhancement of the price of the acquired land by the Courts. There is nothing on record to suggest that the compensation amount of the acquired land was not enhanced prior to the issuance of the impugned notices. Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [13]
16. As far as the contention of the learned counsel for the appellants that an excessive amount was demanded from the plaintiffs/appellants and that the less amount has been demanded from the other categories is concerned, there is nothing to support it. Ex.D-1 clearly depicts proper determination of the enhanced amount on the basis of enhanced compensation which is absolutely in accordance with Clause-9 of the allotment letter. Moreover, there is no requirement in law that the allottee has to be associated in determining the additional price recoverable from him as has been observed by the Division Bench of this Court in case M.S. Dutta v. State of Haryana and others; 1989(1) P.L.R. 524. It was further observed that if the allottee disputes the calculation made by the Estate Officer, he or she can move the authorities for inspecting the record to ascertain how the additional price was worked out and if any discrepancy is found, it could be brought to the notice of the concerned authorities who are to rectify all genuine mistakes. In this case the appellants have accepted in clear terms all the conditions of the allotment letter and as per Clause-9, the allottee is not only liable to pay the additional enhanced price of the land but also the costs of acquisition including solatium, interest and legal expenditure etc. incurred by the State. In another case Sh. Chander Mani v. The Haryana Urban Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [14] Development Authority, Kurukshetra and another; 1990(2) P.L.R. 6, it was held by this Court that in view of the terms and conditions of the allotment letter, the allottees are liable to pay enhanced price on account of the enhancement of the compensation of the acquired land. Similar view was expressed in case Charanjit Bajaj and others v. The State of Haryana and others; 1986 PLJ 601.
17. Now the question which survives for determination is with regard to the jurisdiction of the Civil Court to entertain the instant lis. Section 50 of the Act is reproduced as under:
"Finality of orders and bar of jurisdiction of Civil Court (1) save as otherwise expressly provided in the Act, every order passed or direction issued by the State Government or order passed or notice issued by the authority or its officer under this act shall be final and shall not be questioned in any suit or other legal proceedings.
(2) No civil court shall have jurisdiction to entertain any suit or proceedings in respect of any matter the cognizance of which can be taken and disposed of by any authority empowered by this Act or the rules or regulations made thereunder."
18. The above said provision expressly bars jurisdiction of Civil Court. It clearly provides that every order Thakral Rajeev passed or notice issued by HUDA or by its officers under the 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [15] Act shall be final and shall not be questioned in any suit or other legal proceedings. It further mandates that no Civil Court shall have the jurisdiction to entertain a suit or proceedings in respect of any matter, the cognizance of which can be taken and disposed of by any authority empowered under the Act, rules or regulations made thereunder.
19. Reverting to the facts of the case in hand, the impugned demand notices were issued by the Estate Officer, HUDA, Karnal. During the course of arguments, learned counsel for the appellants placed reliance upon the judgment of this Court in case State of Haryana and others v. Vinod Kumar and others (supra) as well as that of the Hon'ble Apex Court captioned as Dhruv Green Field Ltd. v. Hukam Singh (supra). In both these authorities, it was held that even if there is express or implied bar to the jurisdiction of the Civil Court, the Civil Court would retain its jurisdiction in spite of bar, if the order or action complained of is a nullity. But in the case in hand, the impugned demand notices cannot be termed to be nullity or null and void as the same have been issued as per the terms and conditions of the allotment letter which otherwise clearly provides that the respondents have right to demand additional amount on enhancement of price of the acquired land. The mere fact that the demand raised is justified or not, is itself no ground Thakral Rajeev 2014.01.16 13:26 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.2544 of 2000 [16] to hold that the demand notices are nullity or null and void. So, both these authorities are distinguishable and not applicable.
The learned lower Appellate Court has rightly concluded that the jurisdiction of Civil Court stood barred under Section 50 of the Act.
20. In the light of what has been discussed above, this Court is of the considered view that these appeals are devoid of any merits. As such, the same are dismissed but with no order as to costs upholding the judgment and decree of the lower Appellate Court.
(Jaspal Singh)
July 24, 2013 Judge
avin/rajeev
Thakral Rajeev
2014.01.16 13:26
I attest to the accuracy and
integrity of this document
High Court Chandigarh