Punjab-Haryana High Court
Jan Kalyan Simiti (Regd.) And Ors. vs Housing Board Haryana And Ors. on 3 February, 2000
Equivalent citations: (2003)134PLR526
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Housing Board, Haryana issued demand notices Annexures P.6 to P.9 to its allottees claiming additional amount of Rs. 34.95 per square yard recoverable from them on account of enhanced land compensation as worked out by the Haryana Urban Development Authority, hereinafter referred to as HUDA, from which the respondent-Board had purchased land for setting up of a Housing Board Colony. Considering the said demands to be unjustified, the allottees of various plots have filed petitions under Articles 226/227 of the Constitution of India praying for issuance of a writ of certiorari and mandamus quashing the demand raised by the Board and further directing the respondents not to take any action in furtherance thereto,
2. The challenge by the petitioners in the aforestated and the connected writ petitions to the impugned notice of demand can be summed up as follows:-
a) Under Clause 2(w) of Higher-Purchase Tenancy Agreement (Form-A) and Clause 9 of the letter of allotment, the Board alone was competent to issue the demand letter on application of mind, while in the present case demands in question have been issued by the Estate Manager.
b) No demand of any kind can be raised on the allottees after seven years from the date of allotment of plot in terms of the same clause.
(c) The agreement between the patties is a statutory agreement incapable of being altered and more particularly to the prejudice of the allottees. The Board is, thus, estopped from raising the demand in question.
While repelling these arguments the learned counsel appearing for the Board contended that the demand by the Board is totally justified, is in consonance with the terms and conditions of the agreement and the relevant provisions of law. The writ petitions are in fact misconceived and are based upon misinterpretation of the terms of agreement.
3. It will be appropriate to make a reference to the facts giving rise to these petitions. Petitioner No. 1 Jan Kalyan Samiti claims to be a registered welfare society while all other petitioners are allottee members of the Samiti. Housing Board, Haryana, in the year 1976 issued advertisement for construction of different categories of houses failing in different income groups of the persons at Panipat and other places. The Board purchased the land for setting up a housing colony on different places in the cities of Panipat, Kamal, Ambala, Gurgaon, Faridabad, Sonepat and Kalka. Somewhere in the year 1983-84 the allottees were issued letters of allotment of their respective categories for which they had applied. Cost was demanded from the allottees which they paid. This cost was even enhanced earlier in comparison to the advertisement and lastly in February, 1987 the Estate Officer issued the demand notice to all members for payment of enhanced cost of land. Copy of such notice is annexed to the writ petition as Annexure P/5. In the meanwhile cost of land was increased as a result of grant of higher compensation to the land owners whose land was acquired for the purposes of building up colonies in the above Districts/places. As a result thereto, the Board had issued following letters of demand demanding increased cost from the allottees on the basis that HUDA had demanded additional cost of land from the Board. The details of the letter issued by the Board are as under:-
Date of demand Amount claimed by HUDA.(P.S.Y.) Amount claimed by Housing Board from allottee (P.S.Y) Rs.
Rs.
17.02.1987 19.95 20.70 19.09.1988 33.42 34.95 13.12.1988 55.45 57.62 From amongst the other demands the allottees paid the first demand without protest nor did they challenge the competency of the Board to raise such a demand while the remaining one demand which was raised vide Annexure P.6 after Haryana Urban Development Authority demanded the enhanced land compensation @ Rs. 33.42 per square yard on 27.6.1988 vide Annexure P.12 were objected to and primarily made subject matter of challenge in the present writ petition. Annexures P.7 to P.9 are in fact copies of the same order issued to allottees of different categories of houses and are dated September, 1988.
The questions for determination in the above writ petition and other connected 40 writ petitions, numbers of which are given here-under, are similar, based on common premises, pleadings and arguments. It will be thus, desirable to dispose of all these writ petitions by a common judgment. The Housing Board had raised demands in relation to Sectors 11 and 12 (Phase-1), Panipat, Sector-13 in Karnal, Baldev Nagar in Ambala, Sector 3, 22 and 28 in Faridabad, Phase-1 & II Sector-17, Sonepat and Himshikha in Kalka. The particulars of the connected 40 writ petitions are as under:-
S. No. CWP No. Name of Parties
1.
10462/88 Jan Kalyan Samiti v.
Housing Board
2. 6390/1989
-do-
3. 7342/1989 Chaman Lal v.
-do-
4. 4465/1990 Raj Kumar v.
-do-
5. 2400/1990 Naresh Kumar v.
-do-
6. 3503/1985 Housing Board Colony v.
-do-
7. 7916/1987 Resident Welfare Association v.
Chief Administrator
8. 768/1990 Om Parkash Ratra v.
Haryana State
9. 9595/1989 Subodh Kumar Malhotra v.
-do-
10. 8879/1989 Ram Gopal Sharma v.
-do-
11. 7341/1989 Bhupinder Chawla v.
-do-
12. 8817/1989 Rakesh Kumar v.
-do-
13. 11377/1989 Ishwar Singh v.
-do-
14. 9191/1991 Rajinder Kataria etc. v.
-do-
15. 11367/1990 Jagdish Sharma v.
-do-
16. 1219/1991 Dharam Paol v.
-do-
17. 5039/1990 R.K. Mor v.
Haryana Housing Board
18. 9834/1990 Pyarea Lal v.
-do-
19. 10719/1990 S.S. Luthra etc. v.
-do-
20. 15087/1991 Vijay Kumar v.
Hr. State
21. 4320/1992 Kishori Lal v.
-do-
22. 9387/1987 T.R. Dogra v.
-do-
23. 12215/1990 R.S. Sexena etc. v.
-do-
24. 8688/1991 Ashok Kumar etc. v.
-do-
25. 9779/1991 Rohatash Nepar etc. v.
-do-
26. 16422/1991 Renu Mchindroo v. Chandigarh Administration etc.
27. 17050/1991 Harbans Singh Gulati v.
-do-
28. 2279/1992 Ajay Kumar Dogra v.
-do-
29. 15901/1991 Arun Goel v.
-do-
30. 15945/1991 Smt. Tripal Kaur v.
-do-
31. 83961/1991 Balvinder Kumar v.
-do-
32. 15494/1991 Ved Parkash Khanna v.
-do-
33. 10509/1991 Chander Mohan Lal v.
-do-
34. 9778/1991 R.L. Bhanot etc. v.
-do-
35. 9961/1989 Ved Parkash v.
Haryana Housing Board
36. 3025/1993 Pushap Raj Oberoi etc. v.
-do-
37. 3585/1992 Balwinder Kumar v.
-do-
38. 4099/1992 Deep Chand v.
-do-
39. 7138/1993 R.D. Dhawan v.
Hr. State
40. 8666/1988 Roshan Lal v.
-do-
41. 332/1989 Y.R. Kapoor v.
-do-
4. It appears from the record that no conveyance deed (form-A) was executed between the parties and the total claim of the parties is based upon the letter of allotment (Annexure P.3 to the writ petition). In other words, the rights and obligations of the parties at this stage would be controlled by letter of allotment and as already noticed Clause 2(w) is the material clause in the agreement which is identical to Clause 9 of the letter of allotment. Thus, it would be appropriate to refer to Clause 9 of the agreement at the very out-set in order to appreciate the merits of the respective contentions raised by the learned counsel appearing for the respective parties in this writ petition, Clause 9 reads as under:-
"If after the receipt of the final bills for the construction of tenements or as the result of land award or arbitration proceedings etc. the Board considers it necessary to revise the price, already specified, it may do so and determine the final price payable by the hirer who shall be bound by this determination and shall pay dues, if any between the final price determined and price paid by him including the price paid in lump-sum provided that no change in the price shall be made after 7 years from the date of allotment."
5. I have already noticed that Clause 2(w) of the agreement cannot be of much avail to the petitioners because the conveyance deed between the parties has still not been executed. However, the main and the only difference in the language of Clauses 2(W) and 9 is "or enhancement in cost of land on any account". Rest of the language of both these clauses is similar, as such there would be hardly any material difference on the scope of discussion resulting from the non-execution of the conveyance deed.
6. It is the case of the respondents that they have demanded the increased cost from the allottees only on account of increase in acquisition cost as a result of judgment of the Court of competent jurisdiction. Housing Board had received the demand from HUDA and it only added the requisite interest from the date of demand of HUDA till the date of payment by the allottee. Such a demand neither required any application of mind by HUDA nor the demands were issued by a person not empowered to do so.
7. Under Clause 9 of the letter of allotment two conditions emerge for consideration. Firstly in relation to the ground that no demand can be raised after a period of seven years and secondly whether the demand issued to the allottees is bad as a result of not being issued by the Board. In the present cases, the allotments were made in the year 1984 to different allottees and the demand has been raised in the years 1987-88. As such at the face of it the demands are within the period of 7 years. The argument raised on behalf of the petitioners is, thus, misconceived. Even if in some cases, the demand arising on this account may be beyond the period of seven years, the essence of seven years period would obviously have to be construed in relation to the variation in cost as a result of acts, deeds and commissions within the power and authority of the Board itself.
8. Where judgments are passed by the Courts of competent jurisdiction increasing the amount of compensation awarded to the land owners, whose land was acquired for development of these projects at a much subsequent stage, cannot be hit by this clause as the increase in the basic cost of the land is a compulsion imposed upon the acquiring body as well as on the authority for the benefit of which the same was acquired. The judgments of the Court are obviously not controlled either by the acquiring body or by the Board. If the cost of acquisition is increased by the Court of competent jurisdiction, it will be unfortunate that the general public is called upon to pay such increased costs, while the land for the flats/plots has been acquired for the benefit, utilisation and enjoyment by the petitioners exclusively. Such an interpretation in fact would be opposed to public policy rather than be opposed to it. A Bench of this Court in the case of Subhash Chander Arora and Ors. v. Housing Board, Haryana, Chandigarh Through its Chief Administrator and Ors., (1991-2)100 P.L.R. 698 relating to the same clause held as under:-
"As far as the first point is concerned, I find no merit in the same. No doubt, the tentative price had been made final but the increase in the price was due to the enhancement in the compensation of the land which was done by a Court of law. It was not at the instance of the Board that the prices were being increased. Since the Board had to pay more compensation, naturally the burden will fall on all the allottees of the land of which the compensation has been enhanced. Accordingly the Board was right in demanding enhanced price. However, question arises as to whether the burden of enhanced compensation should be borne only by allottees of residential area or by all persons including who have commercial property like Cinema, shops, etc."
9. Even otherwise, the language of the letter or Clause 2(w) does not suggest the interpretation as put forward by the petitioners. Every contract or document of this kind must be read in its entirety and construed to give it a meaning permissible in law. The power of the Board is whether it intends to revise the price payable by an allottee, allottee should be bound by such, determination. Obviously, this clause would operate where there is increase in the price by the act or deed of the Board in relation to construction or any other factor. But if there is increase in the price for circumstances beyond the control of the Board and in furtherance to the judgment of a Court of law, there appears to be least scope for the Board to apply its mind. Application of mind is a well accepted canon of administrative law, but it must have some basis or field to be operated upon. The judgments of the Court are binding on the parties and the concerned Government or authority is obliged to pay the compensation awarded to the land owners for acquisition of their respective lands except where such judgment is set aside by the higher Court of competent jurisdiction which admittedly is not the case here. The judgments of the Courts have attained finally and have directed the Government of Haryana and HUDA to pay enhanced compensation to the land owners-claimants.
10. As a result of this compulsive directive of the Court over which the State of Haryana, the HUDA or the Board had no discretion to exercise, HUDA had issued letters for recovery of the enhanced amount from the Board to whom the land was given with the condition of recovery of enhanced amount. All that the Estate Officer has done is to raise the letters of demand, forward the demand of HUDA with added interest for the interregnums period of HUDA's letter and recovery, more particularly in the background that it had already paid amounts to HUDA. The argument of the petitioners has an inherent and in-built fallacy. If such interpretation, as suggested by the petitioners is accepted, it will be opposed to public policy. In other words, the lands which are to be enjoyed and are being enjoyed by the petitioners, higher compensation would have to be paid by the State from the money of the ordinary income tax payer, who is neither the beneficiary nor even remotely connected with such land. Such welfare schemes of the State are founded on the principles of fairness and to meet the general requirements of the society at large. Such schemes cannot act detrimental to the very basis of State welfare policies.
11. In exercise of power conferred vide Clause (g) Section 2 of the Haryana Housing Board Act, 1971, the Governor of Haryana had authorised the Estate Managers of different complexes built by the Board in different districts of Haryana to discharge the functions of the competent authority under Chapter-VI of that Act. Firstly, the notices issued by the Estate Officer are mere communications on behalf of the Board and is not determination of any rights or liabilities of the Board or the allottees for that matter. Estate Officer is the competent authority to report the dues payable to the Board in relation to these properties. Thus, it cannot be stated that the notices have been issued by incompetent authority.
12. The next argument of the learned counsel for the petitioners is again misconceived. In these cases there is hardly any demand which has been raised by the Board after the lapse of the period of seven years. As even admitted in the petition itself, the petitioners were allotted the flats/plots in the year 1983-84 and Annexure P.3 which contains the above terms itself is dated 26.3.1984. The additional demands only on account of higher compensation payable to the owners of the lands whose lands were acquired were raised between the period 1987-88. As such I fail to understand as to how this question even arises for consideration in the facts of the present case. Thus, I would leave this question open without commenting thereupon any further to be decided in a case where it appropriately arises.
13. A half-hearted attempt was made by learned counsel for the petitioner to contend that the allottees ought to have been associated in determining the additional price recoverable and before the impugned letters of demand were issued. I have already discussed that there was no occasion for any determination by the Board and adherence to the principles of Audi Alteram Partem are not even remotely attracted in the present case. This contention need not detain me any further in view of the judgment of this Court in the case of M.S. Dulta and Ors. v. State of Haryana and Ors., (1989-1)95 P.L.R. 524, where the Court held as under:-
"The allottee accepted the allotment of the plot subject to the terms and conditions mentioned in the allotment letter. The allottee is not only liable to pay the additional enhanced price of the land but also the costs of acquisition which includes solatium, interest and legal expenditure incurred by respondent No. 2 in defending acquisition and the Award of the Land Acquisition Collector at all the stages mentioned in the Land Acquisition Act. There is no requirement in law that the allottee has to be associated in determining the additional price recoverable from it. Of course, if the allottee disputes the calculation made by the Estate Officer, he or she can move the authorities for inspection of 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 Estate Officer who will rectify all genuine mistakes but the allottee cannot insist that before assessing the enhanced price an opportunity of hearing ought to be afforded to him because this requirement neither flow from the statute nor on the ground of equity because the matter is purely of calculation of the additional price as per judgment rendered by the Reference Court, High Court or the Supreme Court, as the case may be. Both the judgments referred to by the learned counsel do not advance his case."
14. The letter of allotment issued by the Board cannot be treated or termed as a statutory contract. This concept is not even attracted in the facts of the present case. As per the case of the petitioners as well no contract under Regulation 11(4) in Form A had even been executed. However, I would still proceed to discuss the contention raised on behalf of the petitioners that the formate of the alleged agreement and the allotment with reference to other documents on record be taken to be the basis for judging the merit of the plea of estoppel against the Board in raising the afore-noticed demands.
15. Clause 9 itself gives power to the Board to demand increased cost on all scores including as a result of increase in awards. There is no demand in the present cases which had been raised by the Board after a period of seven years. To attract the applicability of the doctrine of estoppal, the petitioners were required to show in what way the demand raised is contrary to any concluded contract and was prejudicial to their interest after they had accepted the offer and altered their position prior to the issuance of the said demands. The first demand was raised by the Board on 13.1.1987 and all the petitioners are stated to have paid the said demand without protest and demur. In other words, the petitioners themselves by their conduct or otherwise have accepted the demand raised by the Board in relation to payment of enhanced compensation. In any case, the principle of estoppel is a rule of evidence to which equity and fairness are the precepts. At this stage it may be relevant to make a reference to the judgment of a Division Bench of this Court in the case of C. Narayan and Anr. v. Chandigarh Housing Board, Chandigarh, (1996-2) 113 P.L.R. 292, wherein it was held as under:-
"In the case of R.K. Kawatra etc. v. D.S.I.D.C. etc., A.I.R. 1992 Delhi 28 a Division Bench of Delhi High Court after considering all the judgments pronounced by the Hon'ble Supreme Court of India on the subject and after discussing judgments of other High Courts in detail somewhat in similar circumstances held as under:-
"Held, that the 1977 policy was purely tentative and no promises or assurances were held out therein. The petitioners were fully aware of this fact and were waiting for the final policy to emerge. This fact is clear from their own letters to the DSIDC. When the final policy was announced in 1987 they subscribed to the same and have taken benefits under it by getting allotments of plots. Further they have had the benefit of their past deposits in as much as the same have been allowed to be adjusted alongwith interest and the petitioners have been saved the risk of non-allotment if they had been subjected to draw of lots under the 1987 scheme. It is only on the basis of their past applications that they have got firm allotments. Case law discussed (paras 18, 31).
The facts and circumstances do not show that the doctrine of promissory estoppel can at all be attracted. The brochure issued in the year 1977 and the application forms on which the applications were made at that time made it abundantly clear that the whole thing was tentative and no legal commitment was made and no specific promise was being held out. Apart from this is the other important fact that the petitioners were themselves quite clear about this as is apparent from their letter to the DSIDC and the response of the DSIDC to the same. So on facts the doctrine of promissory estoppel is not at all attracted, therefore, there is no question of its enforcement.
The doctrine of promissory estoppel is an equitable doctrine and the petitioners cannot ask the Court to apply the same to compel something which is inequitable. One who seeks equity must do equity. In our egalitarian society larger public interest must get precedence over individual interest or interest of comparatively smaller section of the society. Moreover, the Govt. cannot be compelled to sell the land much below even its cost of acquisition and development. (Para 33)".
In this regard it will be appropriate to refer to some cases to indicate the well settled position of law as aforestated by us:
Mahabir Auto Stores v. Indian Oil Corporation, A.I.R. 1990 S.C. 1031;
Union of India v. Godfrey Phillips India Limited, A.I.R. 1986 Supreme Court 806;
Express Newspapers Private Limited v. Union of India, A.I.R. 1986 S.C. 872:
P.N. Verma v. Union of India, A.I.R. 1985 Delhi 417;
State of Uttar Pradesh v. Vijay Bahadur Singh, A.I.R. 1982 S.C. 1234;
M.P. Sugar Mills Company limited v. State of Uttar Pradesh, A.I.R. 1979 Supreme Court 621; and Falmouth Boat Construction Co. Ltd. v. Howell, (1950) 1 All E.R. 438 : (1950) 2 KB 16."
Reference in this regard can also be made to the judgment of another Division Bench of this Court in the case of Dr. Ashok Kumar v. The State of Punjab and Ors., (1997-3)117 P.L.R. 727, wherein it was held as under:-
"Promissory estoppel being an extension of principle of equity its basic purpose is to promote justice founded on fairness and relieve of promisee of any injustice perpetrated due to promissor going back on his promise unless it is contrary to public policy or prohibited by law. (Amrit Banaspati Co. and Anr. v. State of Punjab and Anr., J.T. 1992(2) S.C. 217). The present case is certainly not one where the permission was ultra vires the Rules or competence of the Authority granting such relief. Thus, the Court would not come to the rescue of the defaulting party and more so when the action springs from exercise of powers in furtherance to the statutory provisions laid down by Hon'ble Apex Court in the case of Vasant Kumar Radha Kishan Vora v. The Board of trustees of Port of Bombay, J.T. 1990(3) S.C. 609."
If it must tilt in favour of equity when it demands, in that event no principle should be applied against the Board and a common man or a common income tax payer should be called upon to pay the acquisition cost of the land of which the petitioners alone are the beneficiaries. This would be nothing but travesty of justice. The acceptance of the first demand by the allottees without prejudice or demur itself is a factor which the Court must take against the petitioners in raising a dispute to the subsequent demands on the same basis nor in continuation thereof.
16. Clause 9 of the allotment letter envisages that the cost indicated is not the final cost but is tentative cost subject to increase. The mode of increase is another aspect of the matter even if an irregularity is assumed in the mode of determination. Increased cost that itself would not render the clause redundant or ineffective. The power to demand increased cost is substantially stipulated in the said clause and, thus, action of the respondent-Board cannot be erred on any ground. As far as the quantum of demand is concerned, I have already discussed that there was no occasion for the Board to apply its mind because enhanced price only contained the element of increase in payment of cost of acquisition of land for the benefit of the petitioners. The learned counsel for the Board has rightly relied upon the case of Indore Development Authority v. Smt. Sadhana Agarwal and Ors., J.T. 1995(3) S.C. 1, where the Hon'ble Apex Court not only directed the allottees in those cases to pay the demanded amount, but even directed them to pay interest at the rate of 6%. Following the same principle, the demand raised by the respondent-Board cannot be termed as unjustified or arbitrary in any manner, whatsoever. The interest has been added only for the interregnums period as afore-indicated and that too in consonance with the judgments of the Court.
17. 1 find the contention of the learned counsel for the Board that the allottees always had the choice to decline the allotment of the flats, bereft of any merit. Thus, the judgment of the Hon'ble Apex Court in the case of Delhi Development Authority v. Pushpendra Kumar Jain, J.T. 1994(6) S.C. 292 relied upon by the learned counsel, has no application to the facts of the present case. The question involved in that case was whether the allottees are liable to pay price of the flats on the date of draw of lots or when there was communication of allotment to the allottees.
18. For the reasons afore-stated, I find no merit in these petitions. The same are dismissed without any order as to costs. It is, however, directed that if the petitioners make the payment within 30 days from the date of pronouncement of this judgment of the amounts demanded by the Board, I have no doubt in my mind that the Board would accept such payments without jeopardising the interests of the allottees.