R.S.A.No. 1448 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1448 of 2009 (O&M) Date of decision: 28.10. 2009 Haryana Urban Development Authority and another ......Appellants Versus Devender Kaur .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Nilesh Bhardwaj, Advocate for Mr.Siddharth Batra, Advocate, for the appellants. Mr.B.S.Sewak, Advocate, for the respondent. **** SABINA, J. Plaintiff Devinder Kaur filed a suit for declaration, which was decreed by the Civil Judge (Jr.Divn.), Hisar vide judgment and decree dated 19.8.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Hisar vide judgment and decree dated 15.12.2008. Hence, the present appeal by the defendants. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1448 of 2009 (O&M) 2 Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The brief facts, necessary for the disposal fo the instant appeal as emanating from the trial Court record are that the plaintiff-respondent (hereinafter referred to as the plaintiff for brevity) has filed a suit for declaration alleging therein that the defendant carved out a colony/sector 14P at Hisar. It was mentioned in the brochure issued at the time of booking of plot that the land on which the sector was proposed to be established belonged to the Government and possession was with the defendants. It was assured that there would be no enhancement in the price of plots. On that assurance, the plaintiff purchased plot No.288P measuring 4 marlas (hereinafter referred to as the suit property) but after a considerable long time, in contravention of the terms and conditions mentioned in the brochure and allotment letter, the defendants raised a demand of additional price without being enhanced by competent authority under the Land Acquisition Act. The plaintiff approached defendant No.2 and requested not to demand the additional price but in vain. The defendant issued letter No.11357 dated 5.7.1994, notice dated 29.7.1997, dated 20.11.1998 and 28.1.2002 to show cause to the plaintiff why the plot should not be resumed for not constructing the same R.S.A.No. 1448 of 2009 (O&M) 3 within two years and for non-payment of the additional price. But all these letters are illegal, null and void as are issued in contravention of terms of allotment letter. The plaintiff again approached the defendant not to demand the additional price and not to resume the plot for non- payment of additional price, but in vain. Hence, necessity arose to file the present suit seeking a decree for declaration that letter dated 15.1.1993 issued for demand of additional price and subsequent demand of additional price and extension fee are wrong, illegal, arbitrary and against the principles of natural justice. The plaintiff has also sought a decree for permanent injunction seeking to restrain the defendants from resuming the plot in question for non-payment of enhanced price. 4. On notice, defendants appeared and filed joint written statement wherein usual preliminary objections regarding maintainability; cause of action; locus standi and concealment of material facts etc. were taken. It was alleged that the plot in question was allotted to the plaintiff at the rate of Rs.224.90 P per square yard. This rate was calculated on the basis of price of land at the rate of Rs.1,21,000/- per acre. But lateron the Govt. made a demand at the rate of Rs.3,00,000/- per acre and refused to give the possession of the land to Haryana Urban R.S.A.No. 1448 of 2009 (O&M) 4 Development Authority (hereinafter referred to as HUDA) for brevity) unless they pay the price of land at the ate of Rs.3 lac per acre. The Financial Commissioner and Secretary to Govt.Haryana Annual Husbandary Department has already issued necessary directions to the Director, Animal Husbandary department, Haryana regarding this fact as per letter dated 1.12.1992. Therefore, necessary notices were issued to the plaintiff requiring him to pay the additional price of land on the basis of calculation at the rate of Rs.3 lac per acre and not the enhanced price. It was further averred that the plaintiff was asked to get back her amount which was deposited by her along with interest at the rate of 10% per annum if she is not interested to deposit the additional price. However, no opinion was given by the plaintiff. Therefore, the notices were issued to the plaintiff for resumption of the plot. All the other averments have been specifically denied and a prayer for dismissal of the suit was made.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP 2. Whether the plaintiff is entitled to THE relief of R.S.A.No. 1448 of 2009 (O&M) 5 permanent injunction as prayed for? OPP 3. Whether the suit of the plaintiff is time barred ? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the plaintiff is estopped from filing the present suit? OPD 6. Whether the civil court has no jurisdiction to file the present suit? OPD 7. Whether the suit of the plaintiff is barred by principle of resjudicata? OPD 8. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiff had filed a suit for declaration that the demand of additional price and subsequent letters issued for payment of additional price and extension fee were wrong, illegal and arbitrary. The suit filed by the plaintiff was decreed and appeal filed by the defendants against the same was dismissed by the Additional District Judge, Hisar. In the present case, the plaintiff was allotted a plot in the colony carved out by the defendants. Clause 9 of the allotment letter as reproduced by the trial Court in para 15 of its judgment reads as R.S.A.No. 1448 of 2009 (O&M) 6 under:- “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” However, the defendants failed to lead any evidence to the effect that the increase on the cost of land was necessitated because of enhancement of compensation on account of acquisition of land. It has been held by the Apex Court in Sanjay Gera vs. Haryana Urban Development Authority and another2005 (2) RCR (Civil)154, in para 5, as under:- “ We have heard learned counsel for the parties and perusal the records. There is no gainsaying that as per condition No.9 of the allotment order the price in question was only tentative. But the condition is qualified that in case any award is given by the Land Acquisition Officer the price can be enhanced. Condition No.9 reads as under:- “The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent authority under the Land R.S.A.No. 1448 of 2009 (O&M) 7 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” As per this condition, enhancement could be made on the cost of the land as per the award by the competent authority under the Land Acquisition authority. In a suit a duty is cast on the defendants to lead evidence to show that increase on the cost of the land is necessitated because of enhancement of paying higher rate of compensation to the Animal Husbandary Department. But no such evidence was led in the suit. DW 1 nowhere stated that this enhancement was warranted because Animal Husbandry Department had to be paid compensation at higher rate for acquisition of this land. It may be that because of decision given by the Punjab and Haryana High Court, it enabled the defendants to claim higher price for allotted plot. In a civil suit all facts have to be pleaded and proved. But in the present case there is no evidence to substantiate the allegation. It was incumbent on the part of the Haryana Urban Development Authority to substantiate the same by leading proper evidence that the enhancement was effected on account of increase in the price of acquisition of land. But the R.S.A.No. 1448 of 2009 (O&M) 8 statement of DW 1, the only evidence which has been led by the defendant-respondents in significantly silent on this issue. In civil matters, the rights of the parties cannot be determined just on the basis of any other judgment on questions of fact. It is the duty of the defendants to specifically plead and prove their case by leading proper evidence in the matter. As per the evidence led by the defendant-respondent i.e. the documentary evidence as well as the oral evidence, the allegations made by the defendants are not substantiated. So far as condition No.9 of the allotment letter is concerned there is no dispute that the defendants can demand additional price as the price at the time of allotment was tentative. But in order to justify the enhancement of the price as per condition No.9 of the allotment letter, the defendants had to lead proper evidence to substantiate the allegation. There is no such evidence produced by the defendants. Therefore, the trial Court has rightly approached in the matter and this is a case of total misreading of the evidence by the learned Additional District Judge as well as by learned Single Judge of the High Court.” Since the defendants had failed to establish that the increase on the cost of land was necessitated on account of enhancement in the cost of land, the Courts below had rightly R.S.A.No. 1448 of 2009 (O&M) 9 decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 28, 2009 anita