IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.15467 of 2007 Date of decision: 18.02.2010 Harbans Singh ….Petitioner versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ------ Present: Mr. K.S. Boparai, Advocate, for the petitioner. Mr. Manohar Lall, Additional Advocate General, Punjab, for respondent No.1. Mr. Rupinder S. Khosla, Advocate, for respondent 2 and 3. ----- 1. Whether reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest? No ----- K.Kannan, J (Oral) 1. The writ petition challenges the demand for Rs.5,16,000/- raised by the respondents through the impugned memo dated 05.09.2007 (Annexure P-10) purported to be the price of the Plot No.114-B measuring 200 square yards situated in Maharishi Balmiki Nagar, Ludhiana that was allotted to the petitioner in lieu of his property having the same area situated in the same locality which was taken over by the respondents. Initially when acquisition proceedings had been initiated, in respect of 260 acres of land for housing development scheme, the petitioner’s private land situate somewhere in the middle of the property acquired by the Government was left out of acquisition proceedings. The Civil Writ Petition No.15467 of 2007 - 2 - petitioner’s grievance was that he could not enjoy the property and he had not access to the same in view of the acquisition by the Government on all sides to his private property. There had been at some point of time therefore an undertaking by the respondents to allot to him a similar extent from the housing scheme which was covered under the acquisition proceedings. This undertaking was not given effect to which compelled the petitioner to resort to a Civil Writ Petition No.5866 of 2004 when the counsel appearing on behalf of the respondents stated before the Court that they were contemplating sale of the property to Income Tax Department and the Improvement Trust would be ready to offer an alternative plot to the petitioner when the sale to Income Tax Department took place. On such an understanding, the writ petition was disposed of. It appears that the transaction with the Income Tax Department was completed in the manner contemplated and the private property of the petitioner was also handed over to the Income Tax Department. It is not in dispute that the respondents had collected Rs.3,16,000/- from the Income Tax Department for the price of the petitioner’s property handed over to the Department. 2. Pursuant to the understanding between the parties, a plot of land was allotted to the petitioner equal in extent to the property which was transferred to the Income Tax Department and the respondent had demanded Rs.5,16,000/- as a provisional price of the plot. This demand is the subject of challenge in the writ petition essentially on two grounds: (i) the allotment of the plot was in the nature of an exchange for the property which the petitioner could not enjoy by the acquisition Civil Writ Petition No.15467 of 2007 - 3 - proceedings and which he had, therefore, allowed the Government to take over, as indeed it had actually taken possession of the same and transferred it also to the Income Tax Department; (ii) the price of the petitioner’s property was collected by the respondents from the Income Tax Department and the respondents cannot obtain a double benefit by demanding a price for the plot, which was allotted to the petitioner in exchange for the loss of his private property. 3. In response to the contentions of the learned counsel appearing for the petitioner, it is contended by Shri Khosla appearing for the respondents that the petitioner has actually sold the property allotted to him, for Rs.5,16,000/- and, therefore, he is not entitled to maintain the writ petition. It is the further contention of the respondents that the petitioner had given an affidavit on 17.01.2008, which reads as under :- “(i) That I am the owner of only allottee of a Plot No.114-B, Area 200 sq.yard situated at Maharishi Balmiki Nagar, Ludhiana. (ii) If the Trust will ask additional amount except the provisional then I will be responsible for the same. (iii) If the Trust will sanction the sale agreement/Transfer/Sale Deed/Naksha then I will be ready to withdraw the Court case.” According to him, the petitioner had offered to pay an additional amount and also to withdraw the writ petition. He is not, therefore, entitled to resist the claim of the impugned demand. 4. I see no merits in the contentions raised by the respondents. The property which was allotted to the petitioner was in the nature of exchange of property equal in value and extent. The allotment was in Civil Writ Petition No.15467 of 2007 - 4 - furtherance of an undertaking before the Court in an earlier writ petition and it was fully supported by consideration. The consideration was the detriment suffered by the petitioner by forfeiting his claim to his personal property, which he could not enjoy by virtue of acquisition of all surrounding lands by the respondents. There was a necessary quid pro quo for the entire transaction and the allotment cannot suffer a further demand against the petitioner. The contention that he had sold the property and therefore cannot maintain the petition, takes us nowhere for it would be a matter between the petitioner and the purchaser as to how they have to work out their equities. The respondent is not entitled to join issues on a private transaction of sale, unless there was a fetter against alienation when the allotment was made to the petitioner. Even the contention that the petitioner had offered to pay an additional amount when demanded through an affidavit has no meaning. The expressions found in the affidavit is that the “Trust would ask additional amount except the provisional”(sic). It cannot mean that the so-called provisional amount being the price should be still be paid. The expression ‘provisional’ employed in the affidavit must be seen in the context of how the impugned demand described the price of the plot as a provisional amount of Rs.5,16,000/-. The affidavit uses the word ‘except the provisional’ and not an amount in addition to the provisional. Again if the additional amount must be understood as an undertaking to pay even the provisional demand, then there was literally nothing that the petitioner was taking as a benefit by the bargain for the detriment for his personal property lost. It is a literal sell out and an affidavit which is so Civil Writ Petition No.15467 of 2007 - 5 - queerly drafted cannot be understood as forfeiting his claim to obtain the property from the respondents which they were bound to give as per the undertaking given in the Court. It is even inequitable to deny the petitioner the relief, if we consider that the respondents have had the benefit of the petitioner’s property by transferring to the Income Tax Department and collecting a consideration for the same. 5. The contention of the respondents is that they have been able to sell the petitioner’s property only for Rs.3,16,000/- while the property allotted to the petitioner is worth Rs.5,16,000/- which means the respondents are entitled to demand a difference of Rs.2 lakh from the petitioner. It appears that during the pendency of the writ petition, the entire amount of Rs.5,16,000/- had also been paid by the petitioner to the respondents. The learned counsel appearing for the respondents would state that the petitioner would be entitled to only Rs.3,16,000/-, the amount which he had secured from the Income Tax Department and the balance of Rs.2 lakhs will be retained by the respondents. I cannot accommodate even such a plea and the respondents shall pay to the petitioner the entire amount. The property which the respondents had undertaken to give to the petitioner was a property with parity in value and if it had so happened by circumstances that the amount recovered from the Income Tax Department fell short of Rs.5,16,000/-, the petitioner cannot be made to take such a burden. The respondents will be entitled to collect the proportionate development charges that bears to the property allotted to him. The amount of Rs.5,16,000/- has been paid by the petitioner on 09.10.2007. The respondents have had the benefit of Civil Writ Petition No.15467 of 2007 - 6 - retention of the money all along and that would be offer sufficient recompense for the development charges. The petitioner’s entitlement to refund the amount shall be without any interest, if the amount is paid back within a period of 1 month. For any default on the part of the respondents, it will bear interest at 9% per annum after 1 month. 6. The impugned demand is untenable and it is quashed. The writ petition is allowed with cost assessed at Rs.5,000/-. (K.KANNAN) JUDGE 18.02.2010 sanjeev