IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14306 of 2000 Date of decision: 7th December, 2009 The Manglam Co-op. Group Housing Society Ltd. and others … Petitioners Versus State of Haryana and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Adarsh Jain, Advocate for the petitioners. Mr. Sunil Nehra, Assistant Advocate General, Haryana for the State. None for respondents No.2 and 3. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been filed seeking a writ in the nature of certiorari with a prayer that letter dated 11th September, 2000 (Annexure P-3), issued by the Estate Officer, HUDA, Faridabad to petitioner No.1 and similar letters issued to other petitioners, whereby petitioner Housing Societies were called upon to pay to HUDA further amount towards allotment of the plot as HUDA had paid the enhanced amount of compensation to the land owners in land acquisition proceedings, be quashed. Petitioner No.1, The Manglam Co-op. Group Housing Society Limited, C/o Sh.H.P. Chaudhary, Plot No.11, Sector 6, Faridabad was allotted Group Housing Plot No. GHS-6 in Sector 21-D, Faridabad. The area of plot allotted was 8000 square maters/2 acres. The plot was allotted on the tentative price of Rs.1,58,32,000/- @ Rs.1979/- per square meter. The allotment letter (Annexure P-2) was issued on 7th October, 1999. The impugned notice (Annexure P-3) was issued on 11th September, 2000, in which the Estate Officer, HUDA Faridabad had stated that the compensation enhanced in the land acquisition proceedings qua the land acquired in Sector 21, where the Society was allotted plot, was deposited in the Court for Civil Writ Petition No. 14306 of 2000 disbursal of payment to the land owners. After taking into consideration the enhanced compensation paid along with cost and expenditure of the litigation incurred, the Society was called upon to pay Rs.51,02,858/- @ Rs.733.71 per square meter. This demand was raised in pursuance of condition No.6 of the allotment letter (Annexure P-2). Condition No.6 of the allotment letter reads as under: “6. The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent authority/ Court under the Land Acquisition Act shall also be payable proportionately as determined by the Authority from time to time. The additional price determined, shall be paid within thirty days of its demand.” The present writ petition has been filed by 7 Cooperative Group Housing Societies. They were allotted different plots and demand notice has been also issued to them to deposit the further amount towards allotment on the ground that in land acquisition proceedings, HUDA has incurred more cost. In the writ petition, two-fold grievance has been made. Firstly, it has been stated that the land was allotted to the petitioner Societies in consonance with the decision of a Court rendered on 15th December, 1997, therefore, HUDA cannot demand further amount, which they have paid to the land owners as a result of enhancement in payment of compensation in land acquisition proceedings. Secondly, it has been stated that this High Court in its judgment, on 27th May, 1999 in Regular First Appeal No.4294 of 1998, had reduced the rate of compensation for the land from Rs.360/- per square yard to Rs.281.76 per square yard, therefore, the amount of enhancement cannot be demanded as the price of the land was reduced and petitioner Societies are entitled to refund and in case this contention is not accepted, then also petitioner Societies are not liable to pay any further amount, as there is no justification for the same. It has been contended that the demand for enhanced compensation is disproportionate and not commensurate to the original price 2 Civil Writ Petition No. 14306 of 2000 for allotment of site to the petitioner Societies. Furthermore, it has been stated that if the petitioner Societies are allowed to participate in the accounting process, whereby rate of enhanced amount has been determined, either the petitioner Societies will be entitled to refund or demand notice was liable to be withdrawn, as the amount demanded is in excess and not legally sustainable. Mr. Sunil Nehra, Assistant Advocate General, Haryana, appearing for respondent No.1, has relied upon written statement filed by respondent No.3 and has urged that petitioner Societies had accepted the allotment letter (Annexure P-2), wherein it was specifically stated and condition No.6 was incorporated that petitioner Societies are liable to pay the amount of enhancement, which is paid by HUDA to the land owners in land acquisition proceedings. Therefore, having accepted the allotment letter, petitioner Societies cannot wriggle out and say that they will not abide by the condition of allotment letter. It has been further submitted that the Estate Officer has acted in a most transparent manner and along with the letter (Annexure P-3) dated 11th September, 2000, calculation sheet was also sent to justify as to how rate of Rs.733.71 per square meter was determined. In para 41 of the written statement filed by respondent No.3 in a connected writ petition bearing CWP No.9844 of 2001, it has been averred as under: “41. That in reply to the contents of Para No.41 of the petition, it is submitted that since the petitioner has failed to deposit the amount legally due from and payable by it, so notice for showing cause as to why penalty be not imposed, was lawfully issued as per the provisions contained in section 17 (1) of the HUDA Act. As per the information of the respondents no stay had been granted in favour of the petitioner at the time the said notice was issued. It may be submitted that no notices could be issued earlier for recovery of the additional amount in view of the enhancement made in the land acquisition proceedings taken out by the original land owners since the initiation of any proceedings being taken in respect of the land covered by those proceedings had been stayed by the Hon’ble High Court. In so far as the demand of additional price is concerned, it is respectfully submitted that the original demand 3 Civil Writ Petition No. 14306 of 2000 was @ Rs.613.47 per sq. yard i.e. Rs.733.71 paise per sq. meter. The same was however, revised as Rs.568.78 paise per sq. yard i.e. 680.26 per sq. meter, in the wake of directions dated 27-7-2001, copy of which alongwith the calculation sheet is attached as Annexure R-1 and lastly it was again revised as Rs.552.21 paise per sq. yard i.e. Rs.660.44 paise per sq. meter, as per directions dated 14-3-2002, copy alongwith calculation sheet enclosed as Annexure R-2.” Mr. Sunil Nehra has made reference to the allotment letter (Annexure P-2) and has submitted that para 19 of the allotment letter binds the petitioner Society and respondents to seek arbitration in case of dispute. I have heard counsel for the petitioners and counsel for the State respondent No.1. Nobody has caused appearance for HUDA, i.e. respondents No.2 and 3. Condition No.19 of the allotment letter (Annexure P-2) reads as under: “19. All disputes and difference arising out of or in any way touching or concerning this allotment whatsoever shall be referred to the sole arbitrator of the Chief Administrator or any other officer appointed by him in this behalf. It will not be an objection to such appointment that the arbitrator so appointed is a Govt. servant or an officer of the authority that he had to deal with matter to which this allotment relates and in the course of his duties such the Govt. servant or officer as the case may be he has expressed his views on all or any of the matters in dispute or difference. The decision of arbitrator shall be final and binding on the concerned parties.” In the present case, counsel for the petitioners and counsel for the respondent have made submissions which cannot be reconciled. According to counsel for the petitioners, rate of land was reduced, therefore, petitioners are entitled to refund, whereas counsel for respondent-State 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 4 Civil Writ Petition No. 14306 of 2000 has been paid to the land owners, whether petitioners are entitled to refund or they have paid 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) 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. In a Civil Writ Petition No. 8685 of 2008, the Chief Administrator, Haryana Urban Development Authority, appeared and made the following statement on 16th November, 2009:- “Mr. Gupta has further stated that in those cases where recovery of the amount has been stayed by 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”. 5 Civil Writ Petition No. 14306 of 2000 In these circumstances, petitioner Societies are directed to seek appointment of Arbitrator in terms of condition No.19 of the allotment letter. Therefore, on the application made by the petitioner Societies in consonance with the condition No.19 of the allotment letter, the matter shall be made subject matter of the arbitration by the Chief Administrator, HUDA. This is specially so ordered, as Mr.Sunil Nehra, Assistant Advocate General, Haryana has submitted that in a similar dispute, the Society namely ‘Aravali Co-operative Group Housing Society’ filed an application before the Hon’ble Chief Justice of this Court for appointment of Arbitrator and on 23rd February, 2007, Mr.S.K. Chopra, District and Sessions Judge (Retired) was appointed as Sole Arbitrator. In case petitioner Societies are not satisfied with the Arbitrator appointed by the Chief Administrator, HUDA, they may pursue their remedy under the Arbitration and Conciliation Act, 1996 by approaching appropriate forum for change of Arbitrator. Needless to say, the Arbitrator shall take into account the statement made by the Chief Administrator, HUDA in CWP No.8685 of 2008 on 16th November, 2009, portion of which has been reproduced above in this judgment. With the observations made above, present writ petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE December 7, 2009 rps 6