R.S.A.No. 1860 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 26.11.2009 R.S.A.No. 1860 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus P.R.Bansal and others .......Respondents R.S.A.No. 1861 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Subhash Chander .......Respondent R.S.A.No. 1862 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Shiv Dutt Sharma .......Respondent R.S.A.No. 1860 of 2009 (O&M) 2 R.S.A.No. 1863 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ved Parkash Madan .......Respondent R.S.A.No. 1864 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Santosh Kumari .......Respondent R.S.A.No. 1865 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Diwan Singh and another .......Respondents R.S.A.No. 1866 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Madhu Sharma .......Respondent R.S.A.No. 1860 of 2009 (O&M) 3 R.S.A.No. 1867 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Mani Ram .......Respondent R.S.A.No. 1868 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ashok Kumar .......Respondent R.S.A.No. 1869 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Balwant Singh .......Respondent R.S.A.No. 1870 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Vijender Singh Siwach .......Respondent R.S.A.No. 1860 of 2009 (O&M) 4 R.S.A.No. 1871 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Krishan Kumar .......Respondent R.S.A.No. 1872 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Naryani Devi Sharma and another .......Respondents R.S.A.No. 1873 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Anup Singh Beniwal .......Respondent R.S.A.No. 1874 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ram Chander .......Respondent R.S.A.No. 1860 of 2009 (O&M) 5 R.S.A.No. 1875 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ram Sarup .......Respondent R.S.A.No. 1876 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Shakuntla Devi .......Respondent R.S.A.No. 1877 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Santosh .......Respondent R.S.A.No. 1878 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ram Dhari .......Respondent R.S.A.No. 1860 of 2009 (O&M) 6 R.S.A.No. 1879 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Chatter Singh .......Respondent R.S.A.No. 1880 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ram Kumar and another .......Respondents R.S.A.No. 1881 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Karan Singh Dalal .......Respondent R.S.A.No. 1882 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Tanwar and others .......Respondents R.S.A.No. 1860 of 2009 (O&M) 7 R.S.A.No. 1883 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Naresh Kumar .......Respondent R.S.A.No. 1884 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Nitya Nand .......Respondent R.S.A.No. 1885 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Suman Bala and another .......Respondents R.S.A.No. 1886 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Kamlesh Dhanda and another .......Respondents R.S.A.No. 1860 of 2009 (O&M) 8 R.S.A.No. 1887 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Veena Rani and another .......Respondents R.S.A.No. 1888 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Ashok Kumar Munjal and others .......Respondents R.S.A.No. 1889 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Joginder Mehta and others .......Respondents R.S.A.No. 1890 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Shakuntla Devi and others .......Respondents R.S.A.No. 1860 of 2009 (O&M) 9 R.S.A.No. 1891 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Usha Rani Sharma and others .......Respondents R.S.A.No. 1892 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Sheela Devi and others .......Respondents R.S.A.No. 1893 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Partap Singh and others .......Respondents R.S.A.No. 1894 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Naresh Kumar and others .......Respondents R.S.A.No. 1860 of 2009 (O&M) 10 R.S.A.No. 1895 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Hari Singh and others .......Respondents R.S.A.No. 1896 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Kamla Devi .......Respondent R.S.A.No. 1897 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Indra Gugnani and others .......Respondents R.S.A.No. 1898 of 2008 (O&M) Haryana Urban Development Authority and another ......Appellants Versus Parveen Mann .......Respondent R.S.A.No. 1860 of 2009 (O&M) 11 CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.K.Kansal, Advocate for the appellant(s). Mr.Sanjeev Kodain, Advocate, for respondents No.3,7,8,9,11,12,19,21,23,27,38,39,44,45,48,49,51,53,54 56,57,59,64,65,68,79,80,84,89,91,97,99,109,110,118,120 122,123,125,127,130,131,134,135,138,143,146,147,154, 155,163,165,169,173,180,184 and 189 in RSA No.1860 of 2008; for Respondents No.2,3,5,6,7,15,16,25 in RSA No.1876 of 2008; for respondents No.6,8,19,28 and 32 in RSA No.1882 of 2008; for respondent No.1 in RSA No.1885 of 2008; for respondents No. 2 and 5 in RSA No.1892 of 2008; for respondents No.2,4,9,12 and 15 in RSA No.1893 of 2008; for respondents No.5,7 and 8 in RSA No.1894 of 2008; for respondents No.7 to 12, 34 and 35 in RSA No.1895 of 2008; for respondents No. 6,7,18, 23,24,29,33,35, 36,39, 40,41,47,57,69,70,72,75,78,79,81,85,100,114,120,127,12 8,131,133,138,,139,140,141,142,143,144,145,160,163,16 7,168,169,170,171,172,176,178,179,184,185,188,197,19 8 and 220 in RSA No.1897 of 2008 and for respondents No.1 and 2 in RSA No.1965 of 2008. Mr.Vikas Kumar, Advocate for respondent in RSA No.1898 of 2008. Mr.Sudhanshu Makkar, Advocate for respondent No.32 in RSA No.1860 of 2008 and for respondent Nos. 155 and 179 in RSA No.1897 of 2008. Mr.Ajit Sihag, Advocate for respondent Krishan Kumar in RSA No.1871 of 2008 and for respondent Shakuntla Devi in RSA No.1876 of 2008 Mr.Vikram Sheoran, Advocate for respondent Nos. 14 and 34 in RSA No.1860 of 2008 and for respondent No.5 in RSA No.1891 of 2008. Mr.Rakesh Nehra, Advocate for respondent in RSA R.S.A.No. 1860 of 2009 (O&M) 12 No.1895 of 2008. Mr.Sandeep Thakran, Advocate for respondent Kamlesh Dhanda in RSA No.1886 of 2008. Mr.Yashwinder Paul Singh, Advocate for respondent in RSA No.1898 of 2008. **** SABINA, J. Vide this judgment, RSA Nos. 1860 to 1898 of 2008 will be disposed of as these have arisen out of common judgment and decree dated 8.12.2007 passed by the Additional District Judge (I), Bhiwani. The matter in controversy is similar in all the cases. Plaintiffs-respondents had filed different civil suits for declaration, which were consolidated together and were decreed by the Civil Judge (Jr.Divn.), Bhiwani vide common judgment and decree dated 28.2.2004. In appeals, the said judgment and decree were upheld by the Additional District Judge(I), Bhiwani vide common judgment and decree dated 8.12.2007. Hence, the present appeals by the defendants. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2to 4 of its judgment, are as under:- “"2. All the plaintiffs through various civil suits detailed above have challenged the legality of demand of additional price at the rate of Rs.448.60 paise per square yards by HUDA from each of the plaintiffs through R.S.A.No. 1860 of 2009 (O&M) 13 separate letters. The grounds of challenged raised by the various plaintiffs in the above suits are as detailed herein under:- a) The total area of Sector is shown as 272.93 acres, whereas, per award of Collector, the area is 277.13 acres. Thus, there being a difference of 4.20 acres, which area as per plaintiffs tentative price, as well as on the enhanced price. b) That the total plotable area as has been shown in memo at Sr.No.14 is 84.70 acres and in fact it is 85.41 acres and thus, there is difference of 0.71 acres. In the same way, area of 20 plots, amounting to 1.44 acres has not been revealed by the defendants. In the same way, the area beyong the standard size measuring 0.80 acres shown in the appended site plan has been concealed by the defendants and has not been shown in the memo. As per plaintiffs, total area under these heads comes out to 2.95 acres which has not been R.S.A.No. 1860 of 2009 (O&M) 14 calculated while fixing the original tentative price as well as enhanced price. c) That the school area measuring 10.25 acres appearing at Sr.No.10 in the memo, area measuring 3.38 acres of P&T, PP, Electricity, Sub Station Dispensary, Nursing Home appearing at Sr.No.11 in the memo has not at all been considered for the purpose of calculating additional price. d)That for commercial area, which has been shown at Sr. No.4 in the memo, measuring 31.32 acres, the rate of additional price is being charged at the rate of 207/- per square yard and from the plaintiffs. It is being charged at the rate of 448.60 per square yards. It is further alleged by the plaintiffs that out of this area measuring 1900 square meters has been sold to telecommunication Department at the rate of 1248/- per square meter plus additional price. The plaintiffs have further alleged that in the same way an area of 2560 square meters is being sold to P&T Department at the rate R.S.A.No. 1860 of 2009 (O&M) 15 of 1392.75 per square meter plus additional price. The grudge of the plaintiffs is that the commercial belt will fetch much more higher price than the reserved price and it should be spread over the entire plotable area. It is alleged that while developing the commercial area, the defendants will not spend any amount from its own pocket, as the defendants have already charged for development of the sector from the plaintiffs while fixing the original tentative price. e) The total area given to Housing Board is 22.43 acres whereas only 12.34 acres of land has been taken under plotable area. Whole of the above said area of 22.43 acres should have been taken into consideration while passing the enhancement. Likewise the area of Housing Board, the area of low cost Housing plots have been shown at Sr.No.7 in the memo whereas an area of 14.37 acres plus 0.30 acres of shops etc. R.S.A.No. 1860 of 2009 (O&M) 16 has been taken for passing the enhance compensation and remaining 13.12 acres of low cost Housing plots has been left for the purpose of passing enhanced compensation without any reason. f) At Sr.No.11 of the memo an area of 5.21 acres has been shown of Community Centre, P&T Department, Police Post, OHT, Electricity, Sub Station, Dispensary and Nursing Home, except the area reserved for Community Centre measuring 0.83 acres and area reserved for OHT measuring 1.0 acre, all the other area of the above purposes cannot be given free of costs. The area of all these buildings measuring 3.38 acres has been left un-charged. The Nursing Home is a commercial venture. The Government agencies are not authorised to occupy the land of citizens of any other institution or/autonomous body/corporation/free of costs. g) The area under the Head 'School' 10.25 acres has also not been taken into R.S.A.No. 1860 of 2009 (O&M) 17 consideration while passing the enhancement. h) According to memo defendants have made the payment of Rs.27,32,85,030/- on account of enhanced compensation. If this amount be divided on above referred total area of 182.52 acres the rate of additional price would comes to 374.32/- and not Rs.536.53 per square metre. Besides the profit which is being earned by the defendants by sale of commercial belt should be adjusted first for arriving at the additional price. 3. It is contended inter alia that there is no development in the shape of construction of sewerage treatment plant storm water disposal, wherever as community centre and electric sub- station have not been constructed so far and nor green belt parks have been developed and therefore, the demand by HUDA of the aforesaid amounts is illegal. 4. The appellant/defendant HUDA in the written statement filed by it besides raising various R.S.A.No. 1860 of 2009 (O&M) 18 preliminary objections such as suit being not maintainable in the present form, the plaintiffs having no locus standi to file the present suits; suit of the plaintiffs being bad for mis-joindder and non-joinder of necessary parties; the suit being bad for want of notice under Section 80 CPC etc. asserted on merits that as per Section 9 of the allotment letters of the various plaintiffs, the answering defendants is well within its rights to raise demand in as much as it has made payment of about Rs.27,32,00,000/- to the original land owners on account of enhancement of compensation. It has also asserted that possession of plots to the various plaintiffs a delivered was so delivered after full development of the sector.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the demand of additional price at the rate of Rs.448.60 paise per square yard as raised by the defendants from the allottees of the plot in question is illegal, null and void? OPP 2. Whether the defendants are liable to be directed render account regarding the R.S.A.No. 1860 of 2009 (O&M) 19 expenditure of external development charges as collected by them from the allottees of the plot and regarding the method of calculating of additional price of all the categories of the plot for enhancement of compensation? OPP 3. If issue No.1 is proved, whether the defendants are liable to be restrained from recovering the instalments of additional price and re-allotment letter as issued to the plaintiff as alleged? OPP 4. Whether the defendants are liable to be directed to redetermining the instalments on the basis of additional price and re-allotment letter as issued to the plaintiff? OPP 5. Whether the plaintiffs are liable to be directed to refund the amount of additional price to the plaintiffs? OPP 6. Whether the defendants are liable to be restrained from the resumption in question as alleged? OPP 7. Whether the plaintiffs have no cause of action to file the present suit? OPD 8. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? R.S.A.No. 1860 of 2009 (O&M) 20 OPD 9. Whether the plaintiffs have not come to the Court with clean hands, if so, what its effect? OPD 10. Whether the suit is not maintainable in the present form? OPD 11. Relief. Learned counsel for the appellants has submitted that the appellants had correctly worked out the enhanced compensation. The jurisdiction of the Civil Court was barred. The plaintiffs have not affixed the required court fee. In support of his arguments, learned counsel has placed reliance on the decision of Delhi High Court in Eastman Kodak Company v. M/s M.R.Electronics and others 1995(2) RRR 608 and the decision of the Apex Court in Abdul Hamid Shamsi v. Abdul Majid and others 1988 Civil Court Cases 340 (SC). Learned counsel for the respondents, on the other hand, have submitted that the jurisdiction of the Civil Court was not excluded in this case as the calculations of the enhanced compensation had not been worked out in accordance with the provisions of the Act. The Court fee had been rightly affixed by the plaintiffs. In support of their arguments, learned counsel have placed reliance on the decision of this Court in State of Haryana and others vs. Vinod Kumar and others 1986(1) PLR 222 and the R.S.A.No. 1860 of 2009 (O&M) 21 decision of the Apex Court in Dhulabhai etc. vs. State of M.P. And another AIR 1969 Supreme Court After hearing learned counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. The plaintiffs had filed a suit for declaration that the demand of additional price @ Rs.448.60 paise per square yards raised by the defendants from each of the plaintiff was illegal and in violation of terms of allotment. The same was liable to be quashed and a decree of rendition of accounts regarding expenditure of external development charges collected by the defendants from the allottees of the plot be issued. The parties led their evidence in support of their case. Both the Courts below have discussed the case of the parties under following heads:- 1. DIFERENCE IN AREA OF 4.20 ACRES 2. LESS CALCULATION OF PLOTABLE AREA HAS BEEN DONE. 3. LEAVING AREA OF HOUSSING BOARD FOR ADDITIONAL PREICE 4. DISPROPORATIONATE CHARGES ON COMMERCIAL BELT 5. AREA ON WHICH NO ADDITIONAL PRICE HAS BEEN CHARGED 6. DIFFERENT CHARGES FOR ECONOMICAL WEAKER SECTION CATEGORIES R.S.A.No. 1860 of 2009 (O&M) 22 7. CHARGING OF INTEREST @ 15% ON INSTALMENT 8. NO LIABILITY OF PAYMENT OF INTEREST BY PLOT HOLDERS AFTER THE ANNOUNCEMENT OF AWARD BY THE LEARNED DISTRICT JUDGE 9. REDUCTION OF COMPENSATION AMOUNT Learned Additional District Judge, after appreciating the evidence led by the parties, has observed qua each head as under: I. DIFERENCE IN AREA OF 4.20 ACRES The award Ex. PW4/A dated 10.11.1997 clearly mentions that the award had been passed for an area measuring “277.13 acres” but the calculation sheet ( on the back notice Ex.P/2 and some similar other notices shows that the4 defendants have worked ou the enhancement recoverable from plot holders at the rate of 448.60 paise per square yard after taking into consideration that total area of the Sector as '272.93 acres” which is evidently incorrect in as much as the award Ex.PW-4/A mentions the area under acquisition to the “277.13 acres”. Qua this very aspect, a letter Ex.PW/3/D had also been addressed bg Distt. Town Planner, Bhiwani to the Chief Administrator, Haryana Urban Development Authority, Panchkula but no action was taken thereon. Learned Counsel for the R.S.A.No. 1860 of 2009 (O&M) 23 plaintiff/respondents has argued that had the enhanced compensation been worked out by taking into consideration the total area under acquisition to be 277.33 acres, the rate of enhanced compensation recoverable from the plot holders would have automatically reduced. No worthwhile argument has been put forth to counter this contention based on factual record. II. LESS CALCULATION OF PLOTABLE AREA HAS BEEN DONE. Qua this aspect t, it is argued with reference to para 10 of the plaint that the total number of two kanals plots are 34 and not 32, number of plots of 14 marlas are 254 and not 250, number of plots of 10 marlas are 690 and not 686 and number of plots of six marlas are 436 and not 432 as so shown in the site plan Ex. PW3/A prepared by none other than HUDA has even which described the number of area of extra plots carved out to be 1.44 acres. The same site plan also shown an excess area of 0.80 acres having became available to HUDA. In this context the testimony of PW8 Hoshiar Singh, Junior draftsman may also be adverted to who has admitted that as per amended site plan 20 extra plots had become available at the spot, thus corroborating the contention of the counsel R.S.A.No. 1860 of 2009 (O&M) 24 for the plaintiff that the enhancement has not been equally distributed to said 0.80 acres and 1.44 acre areas of the excess plots ( as subsequently carged out) while working out the enhancement of compensation recoverable from the plot holders. This aspect was not adverted to by the HUDA in the corresponding para of the written statement though as specifically pleaded in the plaint and nor has it led any evidence in this context. Thus the in-action by HUDA is not taking into consideration the entire area including the above described 1.44 acres pertaining to 20 extra plots and 0.80 acres for extra area while calculating the enhanced compensation cannot be considered to be justified. III. LEAVING AREA OF HOUSSING BOARD FOR ADDITIONAL PREICE: The calculation sheet on the reverse side of the notice Ex.P2 mentions (At Sr.No.5) the area of Housing Board Haryana as 22.23 acres but the same calculation sheet at the foot of the same mentions the plotable area of Housing Board Haryana as 12.34 acres, with no explanation qua this discrepancy having been put forth either in the corresponding para 10(e) of the written statement and nor in the reply to the same during the course of arguments has any reason whatsoever been R.S.A.No. 1860 of 2009 (O&M) 25 put forth as to why the total area of 22.43 acres allotted to Housing Board Haryana was not taken into consideration and only an area 12.34 acres was taken into consideration while working out enhancement of compensation, more so when it is admitted case of the defendant that no development whatsoever is to be carried out by the HUDA in the area allotted by it to Housing Board Haryana meaning thereby the Housing Board stands on the same footing as other allottees of the plots by HUDA. IV. DISPROPORATIONATE CHARGES ON COMMERCIAL BELT: Qua this aspect it may be noticed that calculation sheet on the back of notice Ex.P2 itself mentions that commercial belt, shopping center and area under shopping center under low cost plots total measuring 31.32 acres exists in Sector 13 but the said area measuring 31.32 acres has been altogether excluded while working out the balance amount recoverable from the plot holders as evident from the last para of this calculation sheet which shows that only an area measuring 84.70 acres under plots, 12.34 acres areas of Housing Board Haryana and 14.37 acres of area under low cost plots, totaling 111.41 acres was taken into R.S.A.No. 1860 of 2009 (O&M) 26 consideration for working out the enhancement to be recovered from the plot holders. No reason whatsoever has been put forth as to why above discussed 31.32 acres comprising commercial belt and shopping center etc. were left out, although it is common knowledge that commercial belt and shopping centers would fetch much higher price than the residential area. V. AREA ON WHICH NO ADDITIONAL PRICE HAS BEEN CHARGED: Calculation sheet on the reverse of the notice Ex.P2 mentions the area under community center, post and telegraph, police post, OHT electric sub station, dispensary, nursing home to be measuring 5.21 acres and also an area measuring 10.25 acres for school has been excluded but this area has also not been taken into consideration while assessing the enhanced compensation from the total area and nor any explanation has been put forth for such discriminatory treatment and nor have any rules or case law been cited to show that such institutions are not liable for payment of enchanted compensation. It may be pointed out in this context that in the case titled Harbinder Bajwa versus State of Haryana, reported in 1996(3) Punjab Law Reporter 621 of our Hon'ble High Court it had been held that area of school police R.S.A.No. 1860 of 2009 (O&M) 27 post, dispensary, fire station, water works etc. cannot be taken into consideration while calculating the additional price but it needs to be pointed out that in the case title New India Public School versus HUDA and others, reported in 1996 HRR 451 it has been held by the Hon'ble Supreme Court that the market value of the site allotted to the various schools has to be determined according to the directions laid down therein, meaning thereby that schools are not exempt from payment of allotment charges or enhanced compensation. In this context, it may also be highlighted that DW1 Jagminder Aggarwal has testified that as per policy item No.70 (35) of HUDA, 50% of the area is to be left of constructing building to be given to the education department and health department free of cost, whereas remaining 50% to be sold to the private parties through auction. When HUDA would be auctioning 50% of such area, there is not reason why such area not is to be taken into consideration for enhanced compensation specially when section 15 (2) of the Haryana Urban Development Authority Act, 1977 clearly lays down that nothing in the said act shall be construed as enabling the authority to given the land by way of 'gift'. As already discussed above, the Hon'ble Supreme Court in case titled New India Public School (supra) has held that the market value of area allotted to the various schools shall be determined by constituting a