Ishwar Dass Nassa and
Others Vs. State of Haryana and Others
[Civil Appellate
Jurisdiction Civil Appeal No. 4211 of 2004]
Pyare Lal and Others
Vs. State of Haryana and Others
[With Civil Appeal
No. 4209 of 2004]
J U D G M E N T
G. S. Singhvi, J.
1.
Whether
the Haryana Housing Board (for short, `the Board') could ignore the time limit
of 7 years specified in clause 2(w) of the Hire Purchase Tenancy Agreement executed
by the appellants as per the requirement of Regulation 11(4) of the Housing
Board Haryana (Allotment, Management and Sale of Tenements)
Regulations, 1972
(for short, `the Regulations') framed by the Board in exercise of the power
conferred upon it under Section 74 of the Haryana Housing Board Act, 1971 (for
short, `the Act') and demand additional price from them after 10 years of the allotment
of tenements is the question which arises for consideration in these appeals
filed against the orders passed by the Division Bench of the Punjab and Haryana
High Court whereby the letters patent appeals filed by the appellants were dismissed
and the order passed by the learned Single Judge declining their prayer for quashing
the demand of additional price was upheld.
2.
In
response to an advertisement issued by the Board in 1975, the appellants applied
for the houses proposed to be constructed at Sonepat for Economically Weaker Sections
(EWS), Lower Income Group (LIG) and Middle Income Group (MIG). After scrutiny
of the applications, the competent authority allotted tenements of different categories
to the appellants. The allotment letters were issued in their favour in
November/December 1978. For the sake of reference, the allotment letter issued in
favour of one of the appellants, namely, Dharam Pal is reproduced below:
"HOUSING
BOARD HARYANA
HOUSING
BOARD COLONY
SONEPAT
DATED
9.12.78
REGD.No.830
Sh.Dharam Pal
c/o Mangat Ram Redy,
Model Town ,
Smalkha (Karnal)
Reference: Your
application for registration No.64/EWS
2. EWS/LIG|MIG Tenement
No.285 Area 49.94 S.Yds. The Housing Colony at Sonepat is allottes to you on hire-purchase
basis on a tentative price noted below:
|
i)
|
Price
of House (Normal area)
|
Rs.8000/-
|
|
ii)
|
Cost
of additional land, if any
|
---
|
|
iii)
|
Additional
charges for preferential (corner) plot
|
---
|
|
|
TOTAL
|
Rs.8000/-
|
3. The detail of the amount
deposited by you as per your application etc., is given below:
|
a)
|
Registration
deposit
|
Rs. 500/-
|
|
b)
|
Amount
deposited for preferential allotment
|
---
|
|
c)
|
Amount
deposit for preferential (corner)house
|
---
|
|
d)
|
---
|
---
|
4. You are requested
to deposit the following amounts and take possession of the house within 30
days of the issue this letter:-
|
i)
|
Cost
of additional land
|
|
|
ii)
|
Additional
charges for (corner) preferential plot
|
|
|
iii)
|
Initial
installments/ Ist yearly installment
|
Rs.
700/-
|
|
iv)
|
Cost
of H.P.T.A.form
|
Rs. 2.25
|
|
|
Total
|
Rs.702.25/-
|
5. The balance price
of the house is payable in monthly/yearly instalments of Rs. 481/- each over a
period of 18 years.
Sd/-
Estate
Manager
Housing
Board Haryana
Sonepat
CONDITIONS
i.
The
allottee shall be bound by the Haryana Housing Board Act, Rules and Regulations
thereunder.
ii.
If
the allottee fails to execute the agreement and to take possession of the house
within 30 days of the issue of this letter his name shall be removed from the
allotment register and any amount upto 50% of the earnest money deposited by
him shall be forfeited.
iii.
Possession
of the tenement will be given after the Hire -Purchase Tenancy Agreement is duly
executed as prescribed under the rules and the allottee has paid the initial
deposit, first instalment and such other dues as shall have been demanded by
the Board.
iv.
xxxx
xxxx xxxx
v.
xxxx
xxxx xxxx
vi.
xxxx
xxxx xxxx
vii.
xxxx
xxxx xxxx
viii.
The
conveyance deed will be executed after the entire amount due is paid by the allottee.
All expenses for the registration etc. shall be borne by the allottee."
3.
The
appellants deposited the amount in accordance with the stipulations contained in
the allotment letters and executed Hire Purchase Tenancy Agreements.
The relevant portions
of the Hire Purchase Tenancy Agreement executed by the Board and Dharam Pal are
extracted below: "HIRE PURCHASE TENANCY AGREEMENT This INDENTURE MADE THIS
7th day of December One thousand nine hundred and seventy eight (7.12.78) BETWEEN
HOUSING BOARD HARYANA constituted under the Haryana Board Act 1971 (Act. No. 20
of 1971) (Hereinafter called the owner and includes its successors and assigns)
of the one part and Shri Dharam Pal (Hereinafter called the hirer which
expression shall, unless inconsistent with the context of meaning, includes, as
hereinafter provide, the nominees approved and failing which is heir, executors,
administrators, legal representatives and permitted assigns) of the other part.
WHEREAS in pursuance
of the Housing Board Haryana Act Rule & Regulation (hereinafter called the
regulations) the hirer has apparently applied to the owner for allotment of a house
under the Hire-Purchase Scheme and the owner has agreed to allot a house to
hirer upon the terms and conditions hereinafter set forth." xx xx xx xx xx
xx xx xx xx xx "2(w)
If after the receipt of
the final bills for the construction of tenements or as the result of land award
or arbitration proceeding or enhancement in cost of land on any account, the Board
considers it necessary to revise the price, already specified, it may do so and
determine the final price 6 payable by the hirer who shall be bound by this
determination and shall pay dues, if any, between final price so 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."
4.
After
about 10 years, the Estate Manager, Sonepat issued notices to the appellants and
directed them to pay additional price in lieu of the enhanced compensation
allegedly paid by Improvement Trust, Sonepat for the land which was sold to the
Board. The appellants challenged the notices by filing writ petitions under
Article 226 of the Constitution. They pleaded that in view of clause 2(w) of the
Hire Purchase Tenancy Agreement, the Board cannot demand additional price after
7 years of the allotment of tenements.
The appellants
further pleaded that most of them had already paid the installments of price
specified in the allotment letters and many of them had also obtained no dues
certificates. They relied upon Resolution dated 10.05.1989 passed by the Board not
to recover the additional cost of land from the allottees and prayed that in view
of the decision taken by the Board, the demand notices should be quashed.
In the written
statement filed on behalf of the respondents it was not denied that the Board
had decided not to charge additional price from the allottees but it was
averred that they were under a moral obligation to share the burden of
additional cost paid to the Improvement Trust.
5.
The
learned Single Judge rejected the appellants' challenge to the demand of
additional price by making the following observations: "Where judgments are
passed by the Court 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 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, utilization
and enjoyment by the petitioners exclusively. Such an interpretation in fact
would be opposed to public policy. Every contract or instrument should be construed
harmoniously so as to fall in line with the principles of public policy rather than
be opposed to it.
A Bench of this court
in the case of Subhash Chander Arora and others versus Housing Board, Haryana,
Chandigarh through its Chief Administrator and others - 1991-2 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 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."
Even otherwise, the language
of the Letter of Allotment 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 Govt. or authority is
obliged to pay the compensation awarded to the land owners for acquisition of
their respective lands except where such Judgments is set aside by the highest Court
of Competent jurisdiction which admittedly is not the case here. The judgments
of the Courts have attained finality and have directed the Government of
Haryana and HUDA to pay enhanced compensation to the land-owners-claimants.
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 the 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 letter of demand, forward the demand of HUDA with added
interest for the interregnum 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 inbuilt 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."
6.
The
Division Bench of the High Court summarily dismissed the letters patent appeals
filed against the orders of the learned Single Judge and thereby approved the
demand of additional price.
7.
Shri
Harish Chander, learned senior counsel appearing for the appellants argued that
in view of the express bar contained in para 2(w) of the Hire Purchase Tenancy Agreement
against change in the price after 7 years, the Board did not have the
jurisdiction to demand additional price simply because it was required to pay additional
cost for the land purchased from the Improvement Trust.
He submitted that the
reasons assigned by the learned Single Judge for upholding the demand of
additional price are legally untenable and the Division Bench committed serious
error by summarily dismissing the letters patent appeals.
8.
Shri
T.V. George, learned counsel for the Board argued that the terms and conditions
incorporated in the Hire Purchase Tenancy Agreement are not 10applicable to the
cases in which the Board is required to pay additional cost for the land on
which the tenements are constructed. He submitted that if the State Government or
the Board is required to pay higher compensation to the landowners in
compliance of the direction given by the competent Court or an award of the Arbitrator,
the burden thereof is bound to be passed on to the allottees of plots/houses /tenements.
Learned counsel emphasized
that the demand notices were issued to the appellants because Improvement Trust,
Sonepat had asked the Board to pay additional cost for the land in lieu of the
enhanced compensation payable to the landowners. He submitted that time bound adjudication
of the landowners' claim for higher compensation is not within the control of
the State Government or the Board and the fact that the appeals filed by the
landowners are decided after considerable time cannot be a ground to relieve the
allottees of their obligation to share the burden of additional cost.
9.
We
have considered the respective submissions. For deciding the question arising in
these appeals, it will be useful to notice the extracts of agenda item
Nos.109-113 of the Board's meeting held on 10.5.1989, resolution passed in that
meeting and Clauses 10(1) and (2) and 11(1), (3) and (4).
The same are
reproduced below: AGENDA ITEM AND RESOLUTION OF THE BOARD "To consider and
accord ex-post-facto sanction to the payment of enhanced land compensation for the
land purchased by Board at Sonepat Phase I & II from Improvement Trust,
Sonepat.
The Board purchased the
land from I.T.S. during 1972-75 @ Rs.3/- per sq. yard. As per agreement executed
with ITS in respect of land allotted for Phase I, the land enhancement was payable
by Board as and when demand raised by Improvement Trust. The land of Phase-II
was allotted on the same terms of Phase-I, its agreement could not be executed
reasons for which are not available in the record.
As per the advise
obtained from the Advocate, the term applicable in agreement of Phase-I was so applicable
in case of Phase-II in respect of execution of agreement of Phase-II. Improvement
Trust, Sonepat vide its letter No.279, dated 24.3.86 informed that the land
owner filed a writ in the court for land enhancement and as per judgment of A.D.J.
Sonepat dated 3.10.85 the land sale has been enhanced from Rs.3/- per sq. yard to
Rs.22/- (Rs.25/- per sq. yard) in respect of the adjoining 100 wide road in the
scheme.
As per H.P.T.A.
executed with allottees of Phase-I the cost of houses once fixed cannot be enhanced
to disadvantage of allottees, similarly as per H.P.T.A. executed with allottees
of Phase-II to whom houses were allotted in 1978-79 the enhanced out of the house
cannot be recovered from the allottees after expiry of 7 years from the date of
allotment.
Hence State Govt. was
requested vide Housing Board Officer letter No.1100 dated 15.1.87 to pay the
amount from State Govt. fund as Board was not in a position to pay such huge amount.
However, State Govt. decided vide letter No.6/1/87-IHG dated 4.2.87 that the
Board should meet with this expenditure from its overall budget. 12Board is further
requested to approve the raising the demand from allottees of Sonepat Phase I
& II at the tentative recovery rate of Rs.229/- per sq. yard.
The following resolution
passed by the Board on dated 11.5.89.1) The consider & accord ex-post-facto
sanction to the payment of enhance land compensation for the purchase of land
phase I & II from Improvement Trust, Sonepat.2) The Board accorded ex-post-facto
sanction for the payment of Rs.53,98,091-00 the Improvement Trust, Sonepat and State
Govt. may be approached for reimbursing this amount as demand from allottees
cannot be raised at this stage." (emphasis supplied)
THE REGULATIONS
10.
Allotment
letter, conditions of allotment etc.-
1. After the allotment
of tenements is finalized the Estate Manager shall issue an allotment letter informing
the allottee that it is proposed to allot to him the tenement on the terms and
conditions specified in the letter, and asking him to call at the concerned
office of the Board and take delivery of the authority letter and to take over possession
of the tenement within the period specified in the letter.
2. On receipt of an
allotment letter, the allottee may, within the period specified in the letter, accept
the allotment of a tenement and shall execute a hire purchase tenancy agreement
if required by the Board and shall comply with the terms and conditions of such
agreement.
11.
General
liability of allottees.-
(1) Every allottee shall
regularly pay to the Board the instalments due from him in respect of the
purchase price of the tenement allotted to him. He shall also pay municipal taxes,
water and electricity charges, ground rent, his share of common services (e.g.,
common lights, sweeper, watchman and the like) and other public charges, due in
respect of the land and the building occupied by him to the authorities to whom
such taxes and charges are due.
(3) The hirer shall
make full and regular payment of all the dues that are required to be made by him
in pursuance of these presents or the Regulation. If any such payment is
delayed, he shall be liable to pay a penalty at the rate of one per cent per month.
In case of defaults of more than two months, the tenancy shall stand determined
and the hirer shall be liable to be evicted. All the outstanding dues of the owner
shall be recoverable as arrears of land revenue.
The proceedings of eviction
shall be governed by the provisions of Chapter VI of the Act. Provided further
that in the case of eviction, the amount already deposited by the hirer shall
be utilised for recovering all dues whatsoever of the owner as the first charge
and all the dues of the public bodies as the second charge and only the
remainder shall be refunded to the hirer on his demand.
(4) On payment of the
first instalment and such other dues as shall have been demanded by the Board,
the hirer shall execute a hire-purchase agreement in the form "A".10.
A conjoint reading of the allotment letter and clause 2 (w) of the Hire
Purchase Tenancy Agreement, which every allottee is required to execute makes
it clear that the price of the tenement specified in the allotment letter is
tentative and the Board can revise the price after receiving final bills
representing the cost of construction or if as a result of an order of the
Court or an award made by the Arbitrator it is required to pay higher cost for
the land used for construction of the tenements.
In either case, the
allottee is bound to 14pay the additional amount which would represent the final
price of the tenement. If the cost of land is enhanced for any other similar
reason then too the Board can revise the price and ask the allottees to pay
additional price. In a given case, the Board may revise the tentative price more
than once and the allottees are bound to share the burden of additional cost. However,
in these cases, the Board's power to revise the price of the tenements is
hedged with the limitation of 7 years contained in clause 2(w) of the Hire Purchase
Tenancy Agreement.
That clause contained
an express bar against the change in price after 7 years of the allotment of
tenement. To put it differently, in view of the bar contained in clause 2(w) of
the Hire Purchase Tenancy Agreement, the Board could not revise the price after
7 years of the allotment of tenement, irrespective of the justification for
such revision.
The Board's
understanding of the prohibition contained in clause 2 (w) of the Hire Purchase
Tenancy Agreement is evinced from Resolution dated 10.5.1989 wherein it was
clearly mentioned that enhanced cost is not to be recovered from the allottees
after 7 years from the date of allotment. This is also the reason why the Board
accorded ex post facto sanction for payment of Rs.53,98,091/- to Improvement
Trust, Sonepat.
11. While preparing the
format of Hire Purchase Tenancy Agreement, the Board must have taken into
consideration various factors which could lead to an increase in the cost of tenements
and consciously incorporated a prohibition against change in the price after 7 years
from the date of allotment of tenements.
The rationale of this
embargo was that once the allottee pays the total price, he may not be subjected
to the burden of additional cost after a number of years. Surely, adjudication of
the landowners' claim for higher compensation is not within the domain of the
Board or the allottees but once the Board has, after due deliberations,
incorporated a prohibition against change in the price after a period of 7
years from the allotment of tenements, there is no reason why it should not be asked
to honour the commitment made to the allottees that they will not live under
the fear of being asked to pay additional price after an indefinite period.
Unfortunately, the
learned Single Judge and the Division Bench of the High Court did not give due
weightage to the prohibition contained in Clause 2(w) of the Hire Purchase Tenancy
Agreement and negatived the appellants' challenge to the demand of additional price
by assuming that the Board is vested with the power to revise the price at any
time.
The use of the
expression `or enhancement in cost of land on any account' after the expression
`the receipt of the final bill for the construction of tenements or as the
result of land award or arbitration proceeding' shows that while framing the regulations,
the Board had kept in view all the eventualities which could lead to an increase
in the cost of land made available for construction of the tenements and yet it
thought proper to put an embargo against the revision of price after 7 years.
Therefore, the
learned Single Judge and the Division Bench of the High Court were not right in
deciding the writ petitions and the writ appeals on the premise that once the
cost of land gets increased on account of payment of higher compensation to the
landowners the Board is entitled to demand additional price from the allottees.
12.
In
the result, the appeals are allowed. The impugned order as also the one passed by
the learned Single Judge are set aside and the demand notices issued by Estate
Manager, Sonepat requiring the appellants to pay the additional price are
quashed. The parties are left to bear their own costs.
............................................................J.
[G.S. SINGHVI]
............................................................J.
[SUDHANSU JYOTI MUKHOPADHAYA]
NEW
DELHI;
DECEMBER
12, 2011.
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