Punjab-Haryana High Court
Ravneet Kaur vs State Of Punjab & Others on 14 March, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
C.W.P. No.16006 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 14.03.2012
(1) C.W.P. No.16006 of 2011
Ravneet Kaur ...Petitioner
Versus
State of Punjab & others ...Respondents
Present: Mr. Salil Sagar, Senior Advocate, with
Mr. Samarth Sagar, Advocate, for the petitioner.
Mr. Sandeep Moudgil, DAG, Punjab, for respondent No.1.
Mr. Balram Singh, Advocate, for
Mr. H.S. Brar, Advocate, for respondent Nos.2 to 4.
(2) C.W.P. No.13612 of 2010
Surinder Sandhu ...Petitioner
Versus
State of Punjab & others ...Respondents
Present: Mr. Sukhdeep Sandhu, Advocate, for the petitioner.
Mr. Sandeep Moudgil, DAG, Punjab, for respondent No.1.
Mr. Balram Singh, Advocate, for
Mr. H.S. Brar, Advocate, for respondent Nos.2 & 3.
(3) C.W.P. No.12557 of 2010
Arvind Singh ...Petitioner
Versus
State of Punjab & others ...Respondents
Present: Mr. S.S.Grewal, Advocate, for the petitioner.
Mr. Sandeep Moudgil, DAG, Punjab, for respondent No.1.
Mr. Balram Singh, Advocate, for
Mr. H.S. Brar, Advocate, for respondent Nos.2 to 4.
C.W.P. No.16006 of 2011 2
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
This order shall dispose of afore-mentioned three writ petitions, wherein challenge is to an order dated 06.06.2011 passed by the Additional Chief Administrator, Greater Mohali Area Development Authority (GMADA), whereby the representation of the petitioner(s) against the demand raised after determining the tentative price was disposed of.
The writ petitioners were allotted plots under the 'Discretionary Quota' in the year 1987. The petitioner in CWP No.16006 of 2011 was allotted a plot measuring 400 sq. yards on 30.03.1987; the petitioner in CWP No.13612 of 2010 is a purchaser of plot measuring 269.17 sq. yards allotted to Narinder Pal Singh son of Sadhu Singh vide letter of allotment dated 28.07.1987; whereas, the petitioner in CWP No.12557 of 2010 was allotted a plot measuring 500 sq. yards on 24.11.1987. Though the facts are identical, but for facility of reference, the facts are taken from CWP No.16006 of 2011.
In the letter of allotment issued to the petitioners, the provisional price was communicated and it was mentioned that the tentative price of the plot would be intimated after its having been approved by the Government. There is also a clause in the letter of allotment that the 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 the compensation by the Court or otherwise. The relevant clauses in the letter of allotment read as C.W.P. No.16006 of 2011 3 under:
"1. Plot No.693-C measuring 400 sq. yards in Sector 70, Urban Estate SAS 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 the 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."
On 29.07.1991, the tentative price of the plot was fixed and the petitioner(s) was informed to pay the difference after adjusting the provisional price. All the petitioner(s) herein or their predecessor-in-interest challenged such demand in number of writ petitions before this Court. In a judgement reported as AIR 1993 P & H 54 "D.S.Laungia & others Vs. State of Punjab & others", the Court has held that the tentative price of the plot is to be determined in conformity with Rule 4 of the Punjab Urban Estates (Sale of Sites) Rules, 1965 (for short "the Rules") and the additional price is confined to enhancement of compensation on a reference under Section 18 of the Land Acquisition Act, 1894. It was held that the additional price is being claimed though the same is not on account of enhancement of compensation in the land acquisition proceedings, therefore, the justification offered by the respondents for the additional price is de hors the Rules. The writ petitions were allowed with the following observations:
"For the reasons stated above, the petitions succeed. The claim for the enhanced price as is mentioned in the notice addressed to Sh. D.S.Laungia C.W.P. No.16006 of 2011 4 is set aside. Separate orders need not be passed in other cases since the notices sent to the petitioners in all these cases are almost identical terms. The State Government is free to re-determine the price of the plots in the light of the statutory Rules and the observations made above. There will be no order as to costs."
Aggrieved against the said order, the State filed an appeal before the Hon'ble Supreme Court, but the same was withdrawn on 02.02.1994. Thereafter, a demand of Rs.49,546.54 was raised against the petitioner and on payment of such amount, conveyance deed was executed on 02.05.1995. The conveyance deed also stipulates that the petitioner will be liable to pay enhanced price.
Another writ petition bearing CWP No.4763 of 1992 titled "Fuljit Kaur Vs. State of Punjab" (2000(2) PLR 4) came up for hearing before the Division Bench of this Court on 21.12.1999, wherein the challenge was to the similar notice issued by the Estate Officer for payment of tentative price of the plot allotted to the petitioner. The petitioner relied upon the earlier judgment of this Court in D.S.Laungia's case (supra). In respect of such decision, it was held that, in fact, the amount claimed was tentative price fixed in accordance with Rule 4 of the Rules and not the additional price. It was observed as under:
"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 Vs. Estate Officer, Urban Estate, Punjab and others AIR 1992 P&H 75.
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 C.W.P. No.16006 of 2011 5 following reasons:
(i) xxx xxx xxx
(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 Vs. State of Punjab (1999-1) 121 PLR 14, the prayer made by the petitioner for quashing the impugned demand notices cannot be accepted. In Devinder 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."
The aforesaid judgement became subject matter of appeal C.W.P. No.16006 of 2011 6 before the Hon'ble Supreme Court. The appeal stands dismissed vide judgement reported as Fuljit Kaur Vs. State of Punjab & others AIR 2010 SC 1937. The Hon'ble Supreme Court has upheld the fixation of tentative price, when it was observed as under:
"19. ....However, there is nothing in the scheme of the Act 1964 and the rules from which it can be inferred that tentative price is synonymous with the provisional price, and that a person, to whom the plot has been allotted on provisional price, cannot be asked to pay the tentative price determined by the government. There is a different between the "provisional price"
and the "tentative price" and it may take a long time for the State to determine the tentative price."
The Supreme Court relied upon earlier judgement in Preeta Singh etc. Vs. Haryana Urban Development Authority and others AIR 1996 SC 2201 and held to the following effect:
"22. There is nothing on record to show that the tentative price determined by the State could be unreasonable or arbitrary and it is not the case of the allottee that the market value of the land has not been enhanced while deciding the reference under the Act 1894. While deciding this case, the High Court placed heavy reliance upon the judgment of this Court in Preeta Singh (AIR 1996 SC 2201) (supra) wherein after taking note of various statutory provisions of Act 1964 and Rules 1965, particularly, Rule 2(aa) and sale price as determined in Rule 4, this Court came to the following conclusion:
7. A conjoint reading of the above Rules would clearly indicate that the allottee is liable to pay a sale price including the additional price and the cost incurred and also the cost of improvement of the sites......"
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25. The instant case is squarely covered by the aforesaid judgments of this Court and particularly, Preeta Singh (supra) and in view thereof, the appeal is liable to be dismissed."
After holding so and extracting the mode of calculations to arrive at the tentative price, the Hon'ble Supreme Court referred to the C.W.P. No.16006 of 2011 7 judgement in D.S.Laungia's case (supra) i.e. the bunch of petitions, wherein the petitioner(s) were the party and it was observed as under:
"27. We further find no force in submission made by Sh. Vijay Hansaria, Sr. Advocate, that in spite of making recalculation in view of the directions issued by the High Court in the case of D.S.Laungia (AIR 1993 Punj. & Har. 54) (supra), State could not make any recover from Sh. Laungia. This Court, vide order dated 20.05.2010 asked the respondents to explain this aspect and file an affidavit of the Administrator of the Authority. In response thereto, an Affidavit had been filed by the Chief Administrator, Greater Mohali Development Authority, explaining the entire position in respect of the allotment and recovery of dues furnishing all details and according to this Affidavit, the money is being recovered from all defaulters including Shri D.S.Laungia along with interest."
We may notice that vide the aforesaid judgement, two appeals i.e. Civil Appeal Nos.3546 of 2007 and 3392 of 2007 filed by the respondent-authorities were allowed and the order dated 06.12.2006 passed by this Court in CWP Nos.18110 of 1991 and 2800 of 1992, whereby the writ petitions were allowed on the basis of D.S.Laungia's case (supra), was set aside. It was also noticed by the Hon'ble Supreme Court that the allotments have been made in arbitrary manner. It was observed "that the allotment had been made to the appellant within 48 hours of submission of her application though in ordinary cases, it takes about a year". The appellant had further been favoured to pay the aforesaid provisional price of Rs.93,000/- in four instalments in two years, as is evident from the letter dated 08.04.1987. Making the allotment in such a hasty manner itself is arbitrary and unreasonable and is hit by Article 14 of the Constitution. This Court has consistently held that "when a thing is done in a post-haste manner, mala fides would be presumed". Anything done in undue haste can C.W.P. No.16006 of 2011 8 also be termed as arbitrary and cannot be condoned in law".
Coming to the facts of the present case, the petitioner was served with a demand notice dated 21.06.2010 demanding a sum of Rs.10,31,415/- towards tentative price of plot allotted to the petitioner within 15 days. The petitioner filed an appeal/representation (Annexure P-
14) before the Additional Chief Administrator, GMADA relying upon the order passed in D.S.Laungia's case (supra) and also the decision of F&AC of PUDA/GMADA under agenda item No.37.39 read with agenda item No.18.20. It was pointed out that the demand has been raised after 18 years and 10 months from the earlier notice dated 29.07.1991, which was set aside, therefore, the petitioner cannot be treated to be a defaulter. The petitioner also challenged the levy of penalty and interest for non-payment of the tentative price so fixed.
In reply to the representation/ appeal submitted to the Additional Chief Administrator, the respondents have given detailed calculations and asserted that, in fact, the provisional price was communicated pending finalization of tentative price in the letter of allotment. It is such tentative price was demanded vide letter dated 29.07.1991, but the petitioner failed to deposit any amount in respect of demand raised, therefore, the petitioner is liable to pay interest and penalty as well. The Additional Chief Administrator relied upon the judgement of Hon'ble Supreme Court in Fuljit Kaur's case (supra) and declined to interfere with the demand raised by observing so:
"I have gone carefully through the entire record in the matter and the arguments put forth by both the parties. The factual position given by both the parties are not rebutted being matter of record. On the careful perusal C.W.P. No.16006 of 2011 9 of the orders passed by the Hon'ble Supreme Court of India, it can be seen that the Hon'ble Court had given a very detailed and reasonable judgment in the case of Fuljit Kaur Versus State of Punjab. The judgment given and narrated in this order are worth consideration and relevant to the present case. I am, therefore, of the view that Shri D.S.Laungia and other allottees, to whom plots were allotted under the discretionary quota at a provisional rate and as per the contents of the letter of allotment, the allottes are subjected to pay the final allotment price which was not determined at the time of allotment and was to be fixed later on. This issue has been duly discussed by the Hon'ble Supreme Court in its order, which has attained finality and it would not be appropriate to discuss them again as this would be contemptuous. ..."
However, the Additional Chief Administrator, in terms of an order passed in CWP No.12557 of 2010 taken up for decision today itself, calculated the due amount with interest at the rate of 7% per annum subject to final decision of this Court.
Learned counsel for the petitioner(s) has vehemently argued that the State has taken a conscious decision to withdraw the Special Leave Petition against the order passed by this Court in a writ petition filed by the petitioners, therefore, the order passed by this Court has attained finality. Thus, the respondents cannot raise a fresh demand on the same lines, as was raised and set aside by the Division Bench of this Court in D.S.Laungia's case (supra). It is also pointed out that the conveyance deed stands executed in favour of the petitioner(s) on payment of the amount claimed in the year 1995, therefore, the respondents cannot claim any further amount. Still further, the State government has not approved the re-determination of the amount claimed, as directed by this Court, therefore, the claim raised is wholly untenable. It is also pointed out that there was total inaction by the respondents for 18 years, thus, no penal interest could be claimed from the C.W.P. No.16006 of 2011 10 petitioner(s) for non-payment of the amount. Reliance is placed upon All India Council for Technical Education Vs. Surinder Kumar Dhawan and others (2009) 11 SCC 726 and ESI Corporation Vs. C.C.Santhakumar (2007) 1 SCC 584. Learned counsel for the petitioner(s) further argued that the claim raised after 18 years if barred by limitation. Reliance is placed upon M/s Hindustan Times Ltd. Vs. Union of India and others AIR 1998 SC 688. It is argued that Item No.37.39 in the 37th Meeting of the Finance and Accounts Committee of Punjab Urban Planning and Development Authority held on 03.07.2003 was is in respect of fixation of the re-fixation and re-determination of the tentative price for the plots allotted in Sector 70. The authority has considered the judgement of this court in Fuljit Kaur and D.S.Laungia's cases (supra) and the tentative base price of Rs.520/- per square yard was fixed. The said agenda was to the following effect:
"The tentative price of Rs.520/- per sq. yds. as fixed by the State Government as per parameters prevailing at that time and has the approval of Governor-in-Council is a fair one and this requires no change and it should be treated as Rs.520/- per sq. yards applicable to various sizes of plots at SAS Nagar allotted in the year 1987 as under:-
Sr.No. Size of plots Tentative price per sq. yards
1. Upto 100 sq. yds. 10% less than the reserve
price (Rs.468/- per sq. yd.)
2. 150, 200 & 250 sq. yds. (Reserve Price (Rs.520/- per
sq. yd.)
3. 300 & 400 sq. yds. 50% above reserve price
(Rs.780/- per sq. yd.)
4. 500 sq. yds. 100% above reserve price
(Rs.1040/- per sq. yd.)
In view of the above the matter is being placed before the Finance & Accounts Committee for approval of charging the tentative price @ Rs.520/- per sq. yd. as per detail given above from Sh. D.S.Laungia & other similar situated allottees on the conditions and reliefs as approved C.W.P. No.16006 of 2011 11 vide item No.18.20."
Against the said agenda, the decision was following:
"Item No.37.39 Re-fixation and re-determination of land rates for residential plots Phase-10, 11 and Sector 70 at SAS Nagar.
The committee noted that Punjab and Haryana High Court in its judgment of 28.09.1992 has held that the State Government is free to re-determine the prices of plots in the light of statutory rules and observations made. It also noted that the prices notified by the Government earlier was provisional and therefore, the revision as proposed is justified and thus, approved. Concurrence of the State Government may be obtained in keeping with the judgment of the High Court in its order of 28.09.1992."
It is argued that the State Government has not approved the tentative price so demanded by the Authority from the petitioners.
Mr. Sandhu, learned counsel appearing in CWP No.13612 of 2010, relied upon Section 44 of the Punjab Regional and Town Planning and Development Act, 1995 to contend that the penalty can not be charged not exceeding the amount to be recovered. Therefore, the demand raised is not sustainable. Mr. Grewal, learned counsel appearing in CWP No.12557 of 2010, relied upon the Rules to contend that the demand raised is untenable more so when the amount has not been claimed for 18 long years period.
We have heard learned counsel for the parties at length, but do not find any merit in the present writ petitions. In D.S.Laungia's case (supra), the writ petitions filed by the writ petitioners were allowed, but liberty was given for re-determination of the price of the plots in the light of statutory rules. Though the SLP against the said order was withdrawn, but the statutory rules have been interpreted by the Hon'ble Supreme Court in Fuljit Kaur's case (supra). It has been found that the plots were allotted to C.W.P. No.16006 of 2011 12 the petitioners on provisional price and in terms of Rule 4, the tentative price could be fixed and has been rightly fixed. The reasoning given by the Division Bench in D.S.Laungia's case (supra) has not been accepted by the Hon'ble Supreme Court. Therefore, the interpretation of the expression "tentative price" in Fuljit Kaur's case (supra) is the interpretation applicable and binding on this court. The earlier judgement of this Court has been referred to and has not been approved as per the extract reproduced above. It may be noticed that in the affidavit filed by the Chief Administrator, GMADA (Annexure P11), before the Hon'ble Supreme Court, it has been pointed out that there were 53 allottees, who were allotted plots in the discretionary quota. The final fixed price has been recovered from 37 allottees. The final cost has not been recovered from 16 allottees, which included the petitioner(s) to whom the notices have been issued.
The liberty was granted to the respondents by this court in D.S. Laungia's case (supra) to re-determine the amount payable in terms of the statutory rules and such statutory rules having been interpreted by the Hon'ble Supreme Court in Fuljit Kaur's case (supra). The demand raised is in terms of the statutory rules and thus cannot be said to be unjustified or untenable. In fact, all the allottees i.e. 53 have to be treated in the same manner. The petitioners cannot be treated differently for the reason that at one point of time, their writ petitions were allowed and the respondents were granted liberty to re-determine the amount claimed in terms of the statutory rules.
Though there is delay in raising the demand from the petitioners, but the fact remains that the petitioners are beneficiaries having C.W.P. No.16006 of 2011 13 been allotted plots in the discretionary quota of the State Government. One of the petitioner is a member of Indian Administrative Services as well. It is not difficult to imagine the reasons for not raising the demand for 18 years. In fact, the SLP was also withdrawn and such withdrawal has been adversely commented upon in the later judgement of this Court in Fuljit Kaur's case (supra). It has been observed that the Secretary of the Department 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. The Court accepted the argument that withdrawal of SLP 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. The Hon'ble Supreme Court has also noticed the arbitrariness in the allotment of plots. Therefore, the petitioners are not entitled to any benefit either on account of interest or penalty in view of the findings recorded, which have attained finality. The allotments were made under Rules. There is no analogous provision as contained in Section 44 of the Act in the rules under which the allotments were made. Therefore, their cannot be any cap of the amount of penalty.
The judgements referred to by the learned counsel for the petitioner(s) are not applicable to the facts of the present case, as the action of the respondents in claiming the amount is in terms of the liberty granted. By such demand, the order of this Court is not avoided in any manner. Therefore, para 27 of the judgement relied upon by Mr. Sagar in All India Council for Technical Education's case (supra) is of no help to the petitioner(s).
C.W.P. No.16006 of 2011 14
The plea that the claim is barred by limitation is wholly preposterous. The plots were allotted to the petitioners on provisional price and what is claimed from the petitioners is the tentative price, as communicated in clause 1 of the letter of allotment. It is the petitioners, who delayed the payment and have to suffer the consequences thereof.
In view of the discussion above, we do not find any merit in the present writ petitions. The same are dismissed.
(HEMANT GUPTA)
JUDGE
14.03.2012 (A.N.JINDAL)
Vimal JUDGE