Huda
& Anr Vs. Ranjan Dhamina & Anr [1996] INSC 1627 (17 December 1996)
K. Ramaswamy,
G.B. Pattanaik Pattanaik, J.
ACT:
HEAD NOTE:
Leave
granted This appeal by special leave is directed against the judgment dated
25.3.1996 of a learned Single Judge of the Punjab and Haryana High Court in R.S.A. No. 288 of 1996 dismissing the
defendants' second Appeal and confirming the judgment and decree of the learned
trial Judge as affirmed by the learned Additional district judge.
The
plaintiffs filed the suit for a declaration that the notice issued by Defendant
No 1 on 5.4.1990 demanding the additional sum of Rs. 4,66,847/- is illegal,
invalid and inoperative and as such defendants are not entitled to claim the
said amount. The short facts as pleaded in the plaint are that industrial plot
No. 42 in Sector 10 in industrial estate, Gurgaon was provisionally allotted to
the plaintiffs in the name of M/s. Exotica International Enterprises under
letter dated 7.10.1984 (Ex. P.1). The price fixed for the plot was Rs.1,54.870/
- at the rate of Rs 154.87 per square metre. A part of the amount was required
to be paid immediately and accordingly the plaintiffs deposited the demanded
amount of Rs. 48,396.90 under Exhibit P.2 dated 9.10.1985. The possession of
the plot was delivered to the plaintiffs on 14.11.1985 and the delivery of
possession is indicated under Ex. P.3. The plaintiffs thereafter started
construction on the plot as per approved plan and ultimately requested the
defendants by his letters dated 9.5.1989 and 2.6.1989 to finalise the matter on
receipt of the entire remaining price. At that point of lime the defendants
demanded that unless the plaintiff pays at the rate of Rs. 269.92 pr square metre
the matter cannot be finalised 87 that time plaintiff had already spent a huge
sum in making construction had already agent a huge sum in making construction
over the land and therefore, had no other option than to agrey to any the
enhanced price . consequently the defendants issued the letter of allotment
dated 24.11.1983 (Ex.P.11) fixing the price of the plot at Rs.3,78,250/- and
pursuant to the aforesaid letter the plaintiff paid the balance amount which
was acknowledged by the defendants under receipt No.13126 dated 24.11.1989
(Ex.P.7) and receipt No. 13169 dated 24.11.1989 (Ex.P.8). When the plaintiff
then requested to get the conveyance need executed the defendant No. 2 issued
the impugned letter No. 2108 dated 5.4.1990 (Ex.P.12) intimating the plaintiff
that the extent of Rs. 560.60 per square mere and therefore plaintiffs are
required to pay a further sum of Rs. 4,66. 847/- The plaintiffs, therefore,
filed the suit for the validity of the aforesaid demand of the defendants. The
defendants in their written statement challenged the main inability of the suit
and also took the stand that the plaintiffs had not approached the court with
clean hands. The defendants admitted of having issued the letter of allotment
(Ex.P.11) dated 24.11.1989 under which the price of the plot of land been fixed
at Rs.3,79,250/- but contended that defendants were entitled to a higher sum in
accordance of the parties the learned sub-judge, Gurgaon framed as many as
issues and parties laid evidence on the suit on discussion of the entire
evidence on the suit on discussion of issue Nos. 1 and 2 came to the finding
that increase in the rate was taken by the defendants due to default of the
plaintiffs . On Issue No.3 which is most crucial issue the learned trial judge
came to hold that under condition No 9 of Ex P.11 enhancement can be claimed
only when the cost of land date enhanced on account of Acquisition of the
competent authority under the land Acquisition Act and the absence of any
material to indicate that the cost of the land was increased on account of
award of compensation by the competent court under the Land Acquisition Act the
defendants were not entitled to raise the additional amount of Rs. 4,66,841/-
under their letter dated 5.4.l990, Ex. P.12 and as such the said demand is
illegal, void and ultravires. On issue No. 4 the learned Judge came, so hold
that the area of plot was 1250 square metre. On the question of jurisdiction of
the Court under Issue No. 5 it was held that the Civil Courts have the
jurisdiction to entertain and decide the controversy. Issue Nos. 6, 7 and 8
were not pressed by the counsel appearing for the defendants and as such they
are held against the defendants. On these findings the suit was decreed and it
was held that the defendants are not entitled to claim the additional amount as
per their letter dated 5.4.l990 ( Ex .
P .12
). Against the judgment and decree of the learned trial Judge the defendants
carried the matter in appeal. The additional District Judge, Gurgaon disposed
of the Civil Appeal No. 41 of 1994 by his judgment dated 26th of April, l995
and on reconsideration of the material on record confirmed the findings of the
trial Judge and dismissed the appeal. While dismissing the appeal the learned
Additional Judge observed that the counsel for the appellant failed to indicate
on what account the rates of the land were further enhanced from Rs. 269.92 per
square metre to Rs. 560.60 per square metre. The Appellate court also came to
the conclusion that defendants are not entitled to go beyond the condition laid
down in clause (9) of the letter of allotment (Ex.P.11) and since there was no
enhancement of the compensation by any court in the land acquisition
proceedings the additional demand letter dated 5.4.1990 (Ex.P.12) is without
any basis and thus liable to be set aside. Against the dismissal of the appeal
by be set aside.
Against
the dismissal of the appeal by the learned Additional District judge, Gurgaon,
defendants preferred the second appeal which was registered as R.S.A. No.288 of
1996 the learned counsel appearing for the defendants - appellants himself
stated before the high court that in spite of making efforts the appellants
have not been able to satisfy as to how defendants are entitled to claim to
enhance price the learned counsel could not indicate any error in the judgment
and decree of the courts below and, therefore, the second appeal was dismissed
by the impugned judgment dated 25.3.1996 . Hence this appeal by special leave.
The
learned counsel for the appellants contended with emphasis that the price
indicated in the letter of allotment (Ex.P.11) was tentative as is apparent
from clause (9) of the letter of allotment and therefore, when clause (9) of
the letter of allotment itself postulates enhancement of the cost of the land
the authorities were justified in raising the additional demand. We do not find
any force in the contentions of the learned counsel for the appellants since
clause (9) enable the competent authority to ask for additional amount only
when there has been enhancement in the cost of land on account of any award by
the competent authority determining compensation under the land Acquisition
Act. clause (9) is extracted hereinbelow in extenso:
"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" The aforesaid
clause unequivocally indicates that if there has been any enhancement in the cost
of the land on account award by the competent authority under the land
Acquisition Act then the said enhancement would be payable proportionately as
determined by the authorities. The aforesaid clause does not authorise the alloting
authority to raise addition. It is well settled that the competent authority is
entitled to demand the price as on the date of final letter of allotment,
Ex.P.11 has been found to be the letter of allotment which has not been
assailed before us.
Even
though the appeal arises out of a civil suit and parties had appeal arises out
of a civil suit and parties had laid evidence in the forums below and no
evidence was laid indicating the enhancement of cost of land on account of any
development of cost of land on account of any developmental work yet the
appellant being a public authority, this court had directed by order dated
23.9.1996 to place materials to indicate any development effected to the
plaintiffs plot from the date of possession given to the plaintiffs and the
resultant enhancement of the price. It was also indicated that the defendants -
appellants should also indicate how many more cases of this type are pending
pursuant to the aforesaid order a letter dated 16.1.1990 from the chief
Administrator Haryana Development Authority to the Estate officer HUDA, Gurgaon
has been filed whereunder the chief Administrator had directed the estate
officer to charge at the current rate of Rs. 560.60 per square metre while
issuing the final allotment letter. The appellants have also produced a copy of
the land to Rs.560.60 per square metre But these documents are of no assistance
to the appellants inasmuch as the final letter of allotment (Ex.P.11) was dated
24.11.1989 much prior to the issuance of letter officer dated 16.1.1990. That
apart by order of this court to dated 23.9.1996 the appellants were called upon
to place materials to indicate if any further development to the plaintiffs
land has been made from the date of possession given to them but no such
materials have been placed before us. The so called resolution alleged to have
been passed by the authority enhancing the price of the land will not be
applicable to the plaintiffs plot in whose case the final letter of allotment
had been issued on 24.11.1989 as per Ex.P.11.
In the
aforesaid circumstances with the impugned judgment of the High Court affirming
the decision of the learned Additional district judge. This appeal is
accordingly dismissed but in the circumstances there will be no order as to
costs.
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