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Okhla Enclave Joint Action Committee Vs. Union of India & Ors [1997] INSC 398 (7 April 1997)

K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

Hon'ble Mr. Justice K. Ramaswamy Hon'ble Mr. Justice D.P Wadhwa Jitendra Sharma, Rajeev Dhawan, Arun Jaitley, H.N. Salve, Sr. Advs., Manu Mridul, SuryaKant, A.K. Sikri, V.K.Rao, Ms. Madhu Sikri, R.S.Diwan, Rajesh Srivastava, H.K. Puri, Ujjwal Banerjee, Prem Malhotra, Puneet Bali,M.T. George, Attar Singh, Devendra Singh, Balraj Dewan, Advs. withthem for theappearing parties.

WITH WRIT PETITION (C) Nos.477, 792 & 876 of1996 O R D E R Application forimpleadment are allowed. All the applicants be treated as the petitioners.

This writpetition came to be filed fromtime totime under Article 32 of theconstitution ofIndia on the premise that the Coloniser, M/s. Durga Builders(p) Ltd., respondent No.6 has not been sincere in allotment of theplots to the petitioners who, admittedly, had bookedtheir plots with the coloniser. After the notice wasissued and the counterswere filed in this Court, we requested Mr. Harish N. salve, learnedsenior counsel for the coloniser, to personallylook into the matter and assist this court in resolving the problem. We deeply appreciate and place on record our appreciation for the efforts made byMr. Salve for the commendable jobhe has done in this behalf. After consulting learnedcounsel appearing forthe parties andalso looking into the matterpersonally, he has stated as under:

"1. Various meeting have been held between the Counsels for the petitioners and the Counsels for the respondents. The situation which emerges appears to be as under:

(i) Thereare petitionerswho have paid in full and have not committed any default. It isthe Respondent's case thatdue allotments have been made to these people, some of whom have beenput inpossession also;

registrations, etc., are complete.

Some of such names are included in the list of petitioner however, the respondent insists that these petitioner have been given possession.

(ii) The real bone of contention has been the concept of 'defaulter'. The short payments by the subscribershave arisen on three counts, namely;

(a) Increasein theprice of plotwith fixation of no profit no loss' by Government, Haryana Town & Country planning Authority.

(b) Increase in the amount payable per plotdue to readjustment in thesize of the plot (originallyproposed size of plots was revised 100 sq. yd. to 121 sq. yd. yds) as sanctioned by the Government of Haryana.

(c) General non payment 2.There does notappear to be any major dispute as to the identity of petitioners whohave made full payment. As regards the petitioners who have refused to pay the revised rates fixed by the Government of Haryana, the respondent had given anoffer that respondent had given an offerthat payment ofa sum of Rs. 550/-(over and above the originallyagreed cost of above the originally agreed cost of land) would be treated as proper payment ifpaid on or before 15.9.1995. It ispetitioners who have paid the due amount have been treated as having made full payment and not in default and, therefore, given due allotments.

3.It is the case of some of the petitioners that they were not given proper advice notice about either the revised demandcharges, the basisof thedemand, or the revised cost of land(due to increase in land area) and it is for that reason that they did not make payment. The Respondent claims that notices have beensent to each and every petitioner.

4.It isconceivable that there beinglarge number of petitioner some of them, transferees, whose names mayor maynot be on the record atthe may not be on the record at the appropriate time, the notices were sent but not received.

It is extremely difficult to believe ordisbelieve either of the parties on this score. The Respondenthave mailed copies of letters/some of these petitioners deny receiving thesame.

5.It was, therefore, suggested to the respondent that one way of resolving this problem is all those who are defaulters on account of non payment of developmental charges or payment for difference inarea of land could be treated more or less onpar with their making some additional payment. The respondents are, by and large, agreeable to this proposalprovided the following can be safeguarded;

(a) The actual amount payable should now be paid at the rates fixedby the Haryana Government. The respondent has suffered a loss because they have had topay the entire amount to the Government, without petitioners making the due payment.It isnot the case that the respondent have pocketed the moneyand not paid. The situation is converse. The situation is converse. Theallotment of the plotswould be made upon grant of sectionof the pending schemes ( The Respondent has applied for sanction of the scheme to the haryana Town & country Planning Authority for an area which is more enough the land is in possession of the Respondent). the only problem in the allotment is the clearanceof the scheme by the clearanceof the scheme by the haryana Government on account of anorder imposing a bar has Surajkund area. Now the bar has been reduced to one Km. Therefore, this land is clear as faras this Hon'ble Court is concerned.

However, some additional safeguards have been provided.

(b) In the existing sanctioned scheme, there area large number of plots available but they are of considerably larger size. The respondent has already allotted smaller plots - larger plots are unsold and in possession of the unsold and in possession of the Respondent. The small plotshave been allotted to the booking holders and partly givenunder the commitment to the EWS scheme.

6. Since the petitioners are insistingfor allotment in the present sanctioned scheme, suggestionhad been made that a joint applicationbe made by the Respondent and the present petitioners to theHaryanaTown and country planning Authority to consider our request for reduction inthe area of theplot bysuitably increasingthe density norms.

7.In other words the position is that theland is available the Respondentis willing to make over the land at the originallypromised price (although the prices have gone up considerably) on payment of the additional actual amount demandedby the Government.

However,the exact possession of the plot would only be given on clearanceof the scheme by the Haryana Town & countryplanning Authority.

8.To sumup, the position is as under :

(i) It is the Respondent's case that there isadequate land in itspossession. The Respondent is also willing to abideby the originalprice of land together with such developmentalcharges as are allowed to it by the Government ofHaryana.

(ii) The actual possession of the land canbe given only on the grant ofapproval for the revision of density norms by the Haryana Town and Country planning Authority.

(iii)The respondent, in any way,is committedto its original offer to return the moneytogether withinterest as this Court mayconsider just and proper." A readingof theabove would clearly indicate how meticulous analysis ofthe problem. Two broad issues remain to be solved. Firstly,allotment of the plots either in the existing scheme or the schemepending approval with the HaryanaTown and Country Planning Department, respondent No.5 (for short the 'Department'). Asuggestion camethat if the Department agrees to increase the density of thearea and thereby existing plots are converted into smaller plots, all the petitioners in these writpetitions could be accommodated in the existingscheme. In case thesaid authority findsit difficult toreduce the plotarea, in the scheme pendingapproval, the petitioners could be adjusted therein. In that behalf, we find that there is no intractable difficultyin sorting out the problem. The Department is directedto findthat there is no intractable difficulty in sorting out theproblem. The Department is directed to find out first, whether the increase in density of plots be possible,whetherthe increase in density of plots be possible, thereby reduce the plots into smaller size in conformity with the existingRules governing the sanction of thescheme.In casethere is any difficulty, the Department is free toapproach this Court for necessary orders.

In casethere is any intractable difficulty in adjustment of the same, on necessary sanction being granted to the pending scheme, allthe petitioners should be adjusted in thependingscheme.

The next area ofcontroversy pertains to the cost of the land. It is seen that the Government ofHaryana has decided the pay charges for internal development and external development.As far as cost of the land is concerned, thecoloniser has agreed to abideby therate which it had contracted for, namely.Rs.100/- to Rs.200/- per square yarddepending upon the sizeof the plots. As far as thedevelopment charges are concerned, they are now governed by the orders of the Department. As regards internal development, the Government has fixedRs.878/- for the plots of the size, between 135 sq yardsto 170 sq.

yards. Practically, there may not be any difficulty inthis behalf for thereasonthat the matter could be easily verified from the record of the appropriate Department of the Haryana Government. A letter has been placed before us in this behalf. Prima facie, we proceed on theterms of the said letter. If thereis any difference, it can sorted out with referenceto undisputed record of the Government. As regardsexternal developments,it is worked out at Rs.4.7 lakhs per acre thatwould be borne obviously be the allottees.

Mr. Dhawan, learned senior counsel, haspointed out that licences held by the coloniser hadlapsed on account of non-conditions.mr. Salve, learned senior counsel , has broughtto our notice that pendingwrit petitions the colloniser hasalready deposited Rs. 3 crores and the balanceamount would bedeposited shortly afterthe disposal of the writpetitions. under these circumstance, the necessary licences or renewalthereofwould be granted by the appropriate authority according to rules. Thereafter, the above exercise would be done. Thiswould be done within a period of six weeksfrom the dateof receipt ofthis order.

Itis then brought to our notice that in case the densityis notincreased and therebythe plots cannot be converted intosmallerplots necessary plot to all of the petitioners in the pending scheme. Mr. salve, learned senior counsel, has suggested that the record of thecoloniser is open to scrutiny and in casethe petitionershave feeling that the coloniser isavoiding allotment of the plots, 4th respondent is at liberty to look into the matter and it can directly allot the plots to theallottees whoselist will be supplied by the coloniser to it. With this fair stand taken by thecoloniser, we prima facie accept it to be justified.

partiesare at liberty to approach thisCourt in case of any difficulty for further direction.

Inthat view of the matter, thewrit petitions are disposed of. Nocosts.

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