R.S.A.No. 1680 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1680 of 2009 (O&M) Date of decision: 28.10.2009 C.S.I.O. Co-op Group Housing Society (Regd.) ......Appellant Versus The Haryana Urban Development Authority and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. A.S.Grewal, Advocate, for the appellant. **** SABINA, J. Plaintiff -appellant filed a suit for declaration and permanent injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Panchkula vide judgment and decree dated 28.4.2007. In appeal, the said judgment and decree were set aside by the Additional District Judge, Panchkula vide judgment and decree dated 17.11.2008 and the suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1680 of 2009 (O&M) 2 Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Sans un-essentials, the facts of this case are that the Haryana Urban Development Authority (for short 'the HUDA') was established by the Government of Haryana to provide better residential accommodation to the public in the Urban Area at concessional rates and therefore, HUDA launched a scheme for Group Housing Societies in 1983 but the same did not get good response from the public and, therefore, the HUDA has launched a fresh Group Housing Scheme in 1990 and main feature of the same was that developed sites would be allotted to the Societies on ' no profit no loss basis'. It was pleaded that the plaintiff society was allotted uneven sites whereas in the brochure it was mentioned that the developed sites will be allotted. The plaintiff society has devloped the sites after spending huge amount and now they are feeling cheated that they are being burdened with unreasonable costs without any justification. In Panchkula the defendant has allotted the land to the plaintiff in Sector 20, Panchkula with a view to accommodate maximum number of employees in comparatively minimum area of land in this respect, the applications were invited by the HUDA through newspaper. Twenty number of interested persons formed R.S.A.No. 1680 of 2009 (O&M) 3 the plaintiff society and applied for the land. The land was allotted to the plaintiff society at the rate of Rs.1206/- per sq. meters and the total area of the society is 2000 sq. meter and three storey building consisting of 20 flats were constructed over the land. It was the case of the plaintiff society that they applied for the land in Sector 20, Panchkula as the HUDA had mentioned in their brochure that the land will be allotted on 'no profit no loss basis' and all the basic facilities will be provided at very reasonable rates; that the said land was acquired by the HUDA at the rate of Rs.25/- per sq. meters which is 48 times of the amount paid to the land owners. The HUDA has paid near about 2.55 crores approximately to the land owners for 254.75 acres of land whereas they charged from the society @ Rs.1206/- per sq. mtrs. And collected an amount of Rs.43.93 crores against allotment of only 91.07 acres of land out of 254.75 acres of land. It was further the case of the plaintiff that the compensation has been enhanced in favour of the land owners at the rate of Rs.135/- per sq. mtrs. and on this account, the HUDA has to pay to the land owners an amount of Rs.13.76 crores approximately and in view of the above mentioned enhancement the HUDA has issued alleged notice under challenge to the Society for payment of additional cost at R.S.A.No. 1680 of 2009 (O&M) 4 the rate of Rs.811.85 per sq. mtrs. In this way, the total amount payable by the Societies along is Rs.29.92 crores approximately for 91.07 acres of land; that on mathematical calculations, it is found that HUDA paid Rs.16.31 crores for 254.75 acres of land and being charged Rs.73.85 crores from the plaintiff society for 91.07 acres of land. It was the case of the plaintiff society that HUDA has already recovered excess amount from the group housing society at the time of allotment and the HUDA can bear the cost of enhancement from surplus fund lying deposited with the HUDA and additional amount was justified and was against the principle of natural justice. The plaintiff-society challenged the notice issued by defendant No.2 under Section 17(2) of the HUDA Act 1977 for the recovery of the alleged amount i.e. at the rate of Rs.811.85 paise per sq.mtrs. which is totally arbitrary, illegal, null and void, abinitio, ultra vires unconstitutional. It was specifically pleaded that HUDA having allotted a plot to the allottees on 'no profit no loss basis' could not charge Rs.811.85 per sq.mtrs and calculated the enhance price only at the rate of Rs.447/- per sq.mtrs. which is totally arbitrary and against the well settled principles of law. On failure of defendants to admit the claim of the plaintiff, the present R.S.A.No. 1680 of 2009 (O&M) 5 suit was brought. 3. Defendants filed written statement and opposed the suit on law and facts questioning jurisdiction and disputing cause of action and locus standi in favour of the plaintiff society and pleaded concealment of facts; non-joinder of necessary parties and want of statutory notice. On merits, it was alleged that a fully developed site was allotted to the plaintiff society and with all basic amenities were available; that the allotment letter issued on 15.6.1995, it was clearly mentioned in para No.6 that the price was tentative and was subject to enhancement of the cost of land by competent authority under the Land Acquisition Act and that additional price was to be paid within 30 days of the demand. It was further alleged that the plaintiff society had executed an agreement dated 17.9.1994 prior to issuance of allotment letter agreeing that the price was tentative and further agree to pay enhanced amount if any within 30 days from the date of demand. It was pleaded that total liability of the plaintiff/society was worked out on the basis of rate awarded by the competent court which was Rs.678.80 per sq. yard or Rs.811.85 per sq.mtrs. The defendants denied the entire claim of the plaintiff society and prayed for dismissal of the suit with costs.” R.S.A.No. 1680 of 2009 (O&M) 6 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether notice dated 14.10.2003 issued by defendant No.2 is illegal, null and void? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for decree of permanent injunction as prayed for as well as to declaration as mentioned in the plaint? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the jurisdiction of Civil Court is barred under Section 50 of HUDA Act? OPD 5. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 7. Whether the plaintiff has concealed the true and material facts from the court? OPD 8. Whether the suit of the plaintiff is pre-mature without availing efficacious remedy under HUDA Act? OPD 9. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The facts in this case are not much in dispute. The R.S.A.No. 1680 of 2009 (O&M) 7 plaintiff-society was allotted land in Sector 20, Panchkula for consideration of Rs.1,206/- per square meters vide allotment letter dated 15.6.1995. The land was acquired by the defendants for establishment of the residential sectors. The society was to work on 'no profit no loss' basis. However, after the enhancement of land acquisition compensation, the defendants worked out cost of enhancement to be recovered from the allottees. Clause 6 of the allotment letter, as reproduced by the learned Additional District Judge, in para 12 of the impugned judgment, 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 Acquisition Act shall also be payable proportionately as determined by the authority. The additional price determined shall be paid within 30 days of its demand” Thus, as per the said clause, the price fixed by the defendants was tentative and was subject to enhancement of cost of land by the competent authority. The society had agreed to the terms and conditions of the allotment letter. Hence, the learned Additional District Judge rightly held that it was not open to the plaintiff-society to challenge the demand for additional price as arbitrary or unjustified. The defendants were legally entitled to ask for additional price from the society / its members on account of enhancement of land acquisition compensation. R.S.A.No. 1680 of 2009 (O&M) 8 In the facts of the present case, the judgments relied upon by learned counsel for the appellant in P.G. Gupta v. State of Gujarat and others 1995 Supp(2) SCC 182 and U.P.Avas Evam Vikas Parishad and another v. Friends Coop.Housing Society Ltd. And another 1995 Supp (3) SCC 456 fail to advance the case of the appellants as these are based on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 28, 2009 anita