Punjab-Haryana High Court
Haryana Urban Development Authority ... vs Friends Sector 13 on 14 August, 2012
Bench: Hemant Gupta, Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 14.8.2012
LPA No. 216 of 2012
Haryana Urban Development Authority and ors ......Appellants
vs.
Friends Sector 13, Plot Holder Society ....Respondent
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: - Mr. D.V. Sharma, Sr. Advocate with Ms. Shivani Sharma, Advocate for the appellants. Mr. Pankaj Midha, Advocate for respondent HEMANT GUPTA, J Challenge in the present appeal under Clause X of the Letters Patent is to an order passed by the learned Single Judge of this Court on 25.8.2011, whereby the demand notice dated 20.8.2004 (Annexure P-1) calling upon the writ petitioners to pay interest on the additional price of Rs. 139.69 per square yards was set aside.
In the writ petition, the challenge was to the demand notice dated 20.8.2004 (Annexure P-1), whereby an additional amount of Rs. 108.86 per square meter (Rs.139.69 per square yard) w.e.f. 30.11.1991 and Rs. 337.33 per square meter w.e.f. 14.8.1995 was demanded along with interest @ 10%.
Earlier, the said demand notice dated 30.11.1991 came to be challenged in two civil suits before the learned civil court at Hisar. The second demand notice came to be challenged in eight civil suits before the civil court, Hisar. The said suits were decreed by the learned trial Court on 7.1.1999 and 24.12.1998 in respect of each demand raised, respectively. The learned trial court at the same time observed that the defendants are entitled to recover additional price after calculating the LPA No. 216 of 2012 -2- same as per the Haryana Urban Development (Disposal of Land and Buildings), Regulation 1978. The said judgment and decrees passed by the learned trial Court has been affirmed in appeals vide the separate judgment and decrees dated 14.6.2001. The learned trial Court held the following effect in Judgment Annexure P-6: -
"38. ..... As stated above there are great contradictions in Ex. P15 and the calculations made on the back of demand notices cannot sustain. Thus in view of the fact that the plaintiffs are not denying their liability to pay the enhanced price and they have not challenged the authority of defendants in the present suit to claim the additional price in the present suit. Therefore, the decision in this regard in Ravinder Narula vs. HUDA 1995(2) LJR 6 is not applicable to the facts of the case in hand. The Ld. Counsel for the defendants contended that in the decision in Harbinder Bajwa vs. State of Haryana 1996(3) PLR 621 wherein it was held by Hon'ble High Court that if the allottee fails to pay the enhanced amount in time, then interest @ 15% can be charged but from a perusal of this authority it reveals that while giving decision on this point the Hon'ble Judge has relied upon the decision in Full Bench Chander Mani vs. HUDA Kurukshetra etc. 1990(2) PLR 6 but from a perusal of the decision in Full Bench judgment it reveals that as the Ld. Advocate General, Haryana took up the matter with the authorities concerned (as has been enumerated therein), therefore, it was held that interest @ 15% P.A. Shall be charged on the balance amount which shall remain unpaid after payment of 7th installment of 50% within 3 years of the issue of notice with original cost of the plot. As it was found that HUDA was found charging enhanced compensation as per New Land Acquisition Act. But in the case in hand, no such relief as was granted by the HUDA to the allottees has been granted to the plaintiffs, therefore, to my mind decision in this case is not applicable to the facts of the case in hand.
39. Thus, viewed, it is held that the demand notices issued by the HUDA are against the law and facts and arbitrarily and the defendants cannot resume the plots of the plaintiffs on account no payment of additional price. So far as the relief regarding rendition of account is concerned. The same LPA No. 216 of 2012 -3- was not pressed during the course of arguments by learned counsel for the plaintiffs. Accordingly, all these issues are disposed of in favour of the plaintiffs.
45. As a result of my findings on crucial issue no. 1 to 3 above, the plaintiffs succeed and the suit filed by them is hereby decreed and a decree of declaration is passed in favour of the plaintiffs and against the defendants declaring the demand notice dated 14.8.1995 issued by the defendants claiming additional price as illegal and not binding on the rights of the plaintiffs and a decree for permanent injunction is passed against the defendants from recovering the additional price as demanded under the impugned notices and from taking any action for resumption of the plots in question on the basis of the notices as demanded in impugned notices. However, it is made clear that the defendants shall be entitled to recover additional price after calculating it as per the regulations of Haryana Urban Development (Disposal of Land and Buildings) Act, 1978 and as per the law laid down on the subject and as per the observations made in the suit after properly dividing the amount of enhanced compensation on the entire land."
Admittedly, the Regular Second Appeal No. 4440 to 4443 of 2001, HUDA and ors vs. Welfare Association, Sector 13, Hisar, filed by the appellants against the above said judgment and decrees are pending consideration before this Court.
In the meantime, in pursuance of the liberty granted, the respondents have raised a fresh demand by recalculating the amount of enhanced compensation and also claimed interest from the date the earlier demand notice was issued.
Learned Single Judge has allowed the writ petition relying upon a Division Bench judgment of this Court in CWP No. 5549 of 2002, Jagat Narain and ors vs. HUDA and another, decided on 7.10.2003, wherein, it has been held that interest can be claimed on failure of the allottee to deposit the additional price within 30 days in terms of Clause 9 of the letter of allotment. Therefore, interest from the date of demand notice, which has since been quashed is not sustainable. LPA No. 216 of 2012 -4-
Learned counsel for the appellant has vehemently argued that the judgment in Jagat Narain's case (supra), relied upon by the learned Single Judge is not applicable to the facts and circumstances of the present appeal and in as much as in the aforesaid case, the additional price was claimed from the allottees belonging to economically weaker sections. It is pointed out that earlier a Division Bench of this Court in CWP No. 1483 of 1997 Bishan Swarup and ors vs. State of Haryana and ors, decided on 11.8.1999 has set aside the demand raised against the allottees of economically weaker sections for the reason that the additional price cannot be claimed from the allottees of the allottees of economically weaker sections on the parity of the allottees of general category. It was held to the following effect: -
In our opinion the contention of Shri Sanjay vashisht that the respondents cannot charge enhanced price from the petitioners at par with the allottees of other categories deserves to be accepted. In their pleadings the respondents have not controverted the assertion made by the petitioners that they were allotted plots @ Rs. 100/- per square meter as against Rs. 423.27 per square meter charged from the allottees of other categories. This shows that the members of EWS category were treated as distinct class in the matter of charging of price of the plots. Therefore, there does not appear to be any rhyme or reason for treating them at par with other allottees for the purpose of charging the enhanced cost. If we were to accept the a argument of Shri Rameshwar Puri that the petitioners cannot continue to enjoy the benefit of paying less price as compared to other categories, the very object of the policy framed by the HUDA for allotment of plots to the members of EWS category at cheaper rates will be negated. We are further of the view that the phrase proportionately used in the above reproduced clauses of Annexures P.1 and P.3 must derive its colour and meaning from the context in which it has been used in relation to the members of EWS category. In other words, the same must be interpreted keeping in view the difference in the prices of the plots allotted to the members of EWS category and those belonging to other categories and if so interpreted, it would LPA No. 216 of 2012 -5- mean that the members of EWS category can be asked to pay enhanced cost in the same proportion in which they had paid the tentative price fixed at the time of allotment. If the phrase "proportionately" is not interpreted in this manner, then it will become otiose and redundant and we do not find any rational reason or justification to interpret the terms and conditions of allotment in that manner.
The issue deserves to be examined from another angle as well. IF the intention of respondents No. 2 and 3 was to treat the members of EWS category and other categories as single class for the purpose of charging the additional price, then there was no occasion for them to use the phrase "proportionately" in the terms and conditions of allotment. In that event, a uniform clause for payment of enhanced price would have been incorporated in the letters of allotment issued to the allottees including those belonging to EWS category. However, the fact of the matter is that different conditions have been incorporated in the letter of allotments issued to the members of EWS category on the one hand and rest of categories on the other hand."
After the said order was passed by the Division Bench of this Court, respondents issued a demand notice dated 29.10.2001 claiming a sum of Rs. 139.69 per square yard as the additional price but claimed the same to be payable w.e.f. 18.7.1996. It is the said demand notice claiming the amount due @ Rs. 139.69 per square yard from 1996 was found to be unsustainable by the Division Bench of this Court in Jagat Narain's case (supra).
Learned counsel for the appellants argued that the allottees, such as the members of the association, are liable to pay enhanced cost of land as determined by the authority and that such additional price will be paid within a period of 30 days in terms of the condition No. 9 of the letter of allotment. The appellant has issued demand notice earlier which became the subject matter of challenge before the Civil Court. The Civil Court has directed the appellant to recalculate the amount due. Since, the enhanced compensation has been paid prior to issuance of demand LPA No. 216 of 2012 -6- notices dated 25.8.2011 and 20.8.2004, the appellant is entitled to interest from the date the demand notices were earlier served as the amount is being recovered to set off the enhanced compensation paid by the appellant. It is argued that in the alternative, the appellant should be permitted to issue fresh demand notice for claiming the due amount after claiming interest as part of the amount due and payable by the allottees. It is also argued that the additional price having paid, the same cannot be permitted to be disputed by the respondeats to claim refund of the amount already deposited.
We have heard learned counsel for the parties and find that the order passed by learned Single Judge of this Court is not sustainable in law. The additional price demanded from the writ petitioner is on account of enhanced compensation. The additional price is defined in Regulation 2(b) of the Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, which reads as under: -
"ADDITIONAL PRICE" and "ADDITIONAL PREMIUM", means such sum of money as may be determined by the Chief Administrator in respect of the sale or lease of land or building by allotment, which may become payable by the transferee or lessee with respect to land or building sold or leased to him in a sector on account of enhancement of compensation of any land or building in the same sector by the Court on a reference made under Section 18 of the Land Acquisition Act, 1894, and the amount of cost incurred in respect of such reference.
Explanation: For the purpose of this Regulation, the expression "the Court" means the Court as defined in clause (d) of Section 3 of the Land Acquisition Act, 1894, and where an appeal is filed, the "Appellate Court".
The additional price on account of payment of enhanced compensation has been calculated as payable on the day, when previous demand notices were issued. There is another method of calculation that is to calculate the amount due including the amount of interest as part of the additional price, on the date of issuance of fresh demand notice. But the Authority can not be made to bear the burden of payment of LPA No. 216 of 2012 -7- interest when the amount of compensation has been paid by the Authority but not realized from the allottees. The entire amount due and payable has to be apportioned amongst the allottees alone. Therefore, the association of the allottees and residents are liable to pay interest for non deposit of such amount from the date of issuance of earlier demand notices.
In Preeta Singh (km) vs. Haryana Urban Development Authority, (1996) 8 SCC 756 at page 757, the Hon'ble Supreme Court held that the entire expenditure incurred in connection with the acquisition of land and development thereon is required to be borne by the allottees when the sites or buildings sold after development are offered on the date of sale in accordance with the regulations and also the condition of sale. It was held to the following effect: -
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. It is to be remembered that the respondent-HUDA is only a statutory body for catering to the housing requirement of the persons eligible to claim for allotment. They acquire the land, develop it and construct buildings and allot the buildings or the sites, as the case may be. Under these circumstances, the entire expenditure incurred in connection with the acquisition of the land and development thereon is required to be borne by the allottees when the sites or the buildings sold after the development are offered on the date of the sale in accordance with the regulations and also conditions of sale. It is seen That in the notice dated August 9, 1990, the total area, net area, the payable amount for the gross acreage, the acreage left for the developmental purpose, balance recoverable from the plot holders, plot-table area have been given for each of the area and recovery rate also has been mentioned under the said notice. Under these circumstances, there is no ambiguity left in the calculations. If, at all, the appellants had got any doubt, they would have approached the authority and sought for further information. It is not the case the; they had sought the information and the same was withheld. Under these circumstances, we do not find any illegality in the action LPA No. 216 of 2012 -8- taken by the respondents. The High Court, therefore, was right in refusing to interfere with the order.
The order in Jagat Narain's case (supra) is not helpful to the arguments raised. The allottees in the aforesaid case were from the economically weaker sections. A Division Bench of this Court has found that the terms of allotment are different for the economically weaker sections and that such allottees can not be treated at par with the general category allottees.
Even if the argument of the writ petitioner is to be accepted, the amount of additional price has to be re-determined before the issuance of the demand notices and in such demand notices, the interest component can very well be part of the additional price. In either way, the writ petitioners who have been allotted plot have to pay for the cost of acquisition and the interest thereon. Such interest liability cannot be fastened upon the appellant as the interest has been paid on the amount of compensation by the appellant as well.
In view of the above discussion, we find that the order passed by learned Single Judge on 25.8.2011 holding that the interest liability cannot be fastened on the allottees is not sustainable and consequently appeal is allowed and the order passed by the learned Single Judge is set aside.
(HEMANT GUPTA) JUDGE (RAJIV NARAIN RAINA) JUDGE 14.8.2012 preeti