Civil Writ Petition No. 494 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No. 494 of 2007 Date of Decision: 18.11.2009 Himanshu Co-operative Group Housing Society Limited (Registered) …Petitioner Versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rajiv Sharma, Advocate for the petitioner. Ms. Mamta Singla Talwar, Assistant Advocate General, Haryana, for respondent No.1. Mr. D.V. Sharma, Senior Advocate with Mr. J.P. Bhatt, Advocate for respondents No.2 and 3. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed seeking a direction that respondents be asked to withdraw Demand Notice dated 30.9.2002 (Annexure P2) and Show Cause Notices dated 2.7.2005 (Annexure P5) and dated 1.9.2005 (Annexure P7). Petitioner has further sought a direction that respondent-Haryana Urban Development Authority be directed to refund the entire amount of Rs.6,25,000/- deposited by the petitioner as enhanced compensation with interest at the rate of 15% per annum. Civil Writ Petition No. 494 of 2007 2 Himanshu Co-operative Group Housing Society Limited was allotted a site for construction of residential flats for its members. The area of the plot was 2000 square meters and tentative price fixed was Rs.24,12,000/-. Copy of the letter of allotment is annexed as Annexure P1. Case of the petitioner-Society is that they completed the construction within the specified time and the respondent-Haryana Urban Development Authority had granted 20% rebate in the price of the plot. The petitioner-Society was issued Occupation Certificate and the members of the Society had occupied all the flats. On 28.10.2002, Haryana Urban Development Authority had issued demand notice wherein it was stated that in land acquisition proceedings amount of compensation has been enhanced, therefore, petitioner-Society should proportionately bear the expenses. Petitioner-Society had not paid the amount, therefore, Show Cause Notices (Annexures P5 and P7) were issued to deposit the amount and to explain as to why penalty be not imposed. In the present writ petition, petitioner-Society has pleaded that award given by the Additional District Judge, Panchkula was set aside by this Court and the matter was remanded back. Counsel further states that there has been no enhancement, rather the amount awarded to the land owners has been decreased and, therefore, proportionately refund should be made to the petitioner-Society. Mr. D.V. Sharma, Senior Advocate, assisted by Mr. J.P.Bhatta, Advocate, has controverted this contention of counsel for the petitioner and has stated that rather the amount has been enhanced on Civil Writ Petition No. 494 of 2007 3 10.12.2008. At this stage, reference can be made to allotment letter (Annexure P1). It contains Clause 19, which read as under:- “19. All disputes and differences arising out of or in any way touching or concerning this allotment whatsoever shall be referred to the sole arbitration of the Chief Administrator or any other officer appointed by him. It will not be an objection to such appointment that the arbitrator so appointed is a Government servant or an officer of the Authority that he had to deal with the matter to which this allotment relates and in the course of his duties as such Government servant or officer as the case may be has expressed his views on all or any of the matter in dispute or difference. The decision of such arbitrator shall be final and binding on the concerned parties”. A reference can also be made to Clause 6 of the allotment letter wherein a condition was imposed that the Petitioner-Society is liable to pay the amount of enhancement in the cost of land awarded by the competent authority under the Land Acquisition Act. Clause 6 of the Allotment letter read as under:- “6. 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 Civil Writ Petition No. 494 of 2007 4 proportionately, as determined by the Authority. The additional price determined shall be paid within thirty days of the demand”. Subhash Sharma, Senior Accounts Officer from the office of the Chief Administrator, Haryana Urban Development Authority, Panchkula, had filed an affidavit and in para 5 whereof a reference was made to Regulation 2(b) of the Haryana Urban Development (Disposal of Land & Buildings) Regulations, 1978. In the preliminary objections, respondent-Haryana Urban Development Authority has submitted that in a similar dispute, Society namely Aravali Co-operative Group Housing Society filed an application before Hon'ble the Chief Justice of Punjab and Haryana High Court for appointment of Arbitrator and on 23.2.2007 Mr. S.K. Chopra, District and Sessions Judge (Retired) was appointed as Sole Arbitrator. In the present case, counsel for the petitioner and counsel for the respondents have made submissions which cannot be reconciled. According to counsel for the petitioner, rate of land was reduced, therefore, petitioner is entitled to refund whereas counsel for respondent-Haryana Urban Development Authority has submitted that rate was enhanced and they are entitled to recover the amount which they have paid to the land owners. What is the amount which has been paid to the land owners, whether petitioners are entitled to refund or they have to pay excess amount, this all is a matter of calculations. Arbitrator can examine the various contentions raised before me and call for the records and make necessary calculations. In Hindustan Petroleum Corporation Limited v. M/s Pinkcity Midway Petroleums 2003(3) Civil Writ Petition No. 494 of 2007 5 Recent Civil Reports 686, Hon'ble the Apex Court had opined that once it is admitted and established that there is an arbitration clause then the matter should be referred to the Arbitrator. Furthermore, in The New Friends Co-operative House Building Society Limited v. Rajesh Chawla and Others (2004) 5 Supreme Court Cases 795, the question whether a member was a defaulter, his claim is to be adjudicated in appropriate proceedings or is to be considered in a writ jurisdiction or before the Arbitrator it was held that the matter should be referred to the Arbitrator. This view has been further reiterated by a Division Bench of this Court in M/s Regent Automobiles v. Indian Oil Corporation Limited and Others 2008(3) Recent Civil Reports 752, M/s Escort Finance Limited v. Dharambir and Another 2005(1) Recent Civil Reports 458, and Joginder Pal v. Hindustan Petroleum Corpn. Limited 1997(2) Recent Civil Reports 605. On 12.2.2009, this Court called upon Accounts Officer and the Estate Officer, Haryana Urban Development Authority, to explain as to why payments of the enhanced compensation in terms of the decision of the Reference Court dated 27.9.2001, 20.12.2001 and 2.5.2002 were made to the land owners after years together and how the interest component included in the delayed payments has been passed on the allottees. In a Civil Writ Petition No. 8685 of 2008, the Chief Administrator, Haryana Urban Development Authority, appeared and made the following statement:- “Mr. Gupta has further stated that in those cases where recovery of the amount has been stayed by Civil Writ Petition No. 494 of 2007 6 this Court and cases are pending for last more than three years, the concerned officer of Haryana Urban Development Authority will be authorized to waive off penal/compound interest and allottee/housing society will be provided an opportunity to pay the amount in instalments. He has further submitted that in all other cases where plots have been resumed taking into consideration that dispute ought to be resolved Haryana Urban Development Authority will adopt a positive approach”. Mr. Rajiv Sharma, Advocate, appearing for the petitioner, has stated that in the present case sole authority has been vested in the Chief Administrator, Haryana Urban Development Authority to appoint an Arbitrator. In number of cases, Arbitrator appointed is not accepted by the petitioner-Society and they have to approach the appropriate forum for change of the Arbitrator. He has submitted that Demand Notice was issued in the year 2002. Petitioner is already facing litigation for the last seven years. Therefore, to curtail the litigation, any member of the Permanent Lok Adalat be appointed as Arbitrator so that matter can be examined. In these circumstances, Presiding Officer, Permanent Lok Adalat is requested to himself act as an Arbitrator or entrust the matter to any other member of the Permanent Lok Adalat to act as an Arbitrator. The Arbitrator may fix his remuneration and matter be decided as to how much amount is to be paid by the petitioner-Society. Civil Writ Petition No. 494 of 2007 7 As per the statement made by the Chief Administrator, Haryana Urban Development Authority, in Civil Writ Petition No. 8685 of 2008 noticed in order dated 16.11.2009, petitioner be permitted to pay the amount in reasonable instalments and possibility of waiving off the penal/compound interest be also considered by the Arbitrator. With the observations made above, the present writ petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge November 18, 2009 “DK”