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PETITIONER:

HUDA & ANR.

Vs.

RESPONDENT:

RANJAN DHAMINA & ANR.

DATE OF JUDGMENT: 17/12/1996

BENCH:

K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

PATTANAIK, J.

Leave granted

This appeal by special leave is directed against the

judgment dated 25.3.1996 of a learned Single Judge of the

Punjab and Haryana High Court in R.S.A. No. 288 of 1996

dismissing the defendants' second Appeal and confirming the

judgment and decree of the learned trial Judge as affirmed

by the learned Additional district judge.

The plaintiffs filed the suit for a declaration that

the notice issued by Defendant No 1 on 5.4.1990 demanding

the additional sum of Rs. 4,66,847/- is illegal, invalid and

inoperative and as such defendants are not entitled to

claim the said amount. The short facts as pleaded in the

plaint are that industrial plot No. 42 in Sector 10 in

industrial estate, Gurgaon was provisionally allotted to the

plaintiffs in the name of M/s. Exotica International

Enterprises under letter dated 7.10.1984 (Ex. P.1). The

price fixed for the plot was Rs.1,54.870/ - at the rate of

Rs 154.87 per square metre. A part of the amount was

required to be paid immediately and accordingly the

plaintiffs deposited the demanded amount of Rs. 48,396.90

under Exhibit P.2 dated 9.10.1985. The possession of the

plot was delivered to the plaintiffs on 14.11.1985 and the

delivery of possession is indicated under Ex. P.3. The

plaintiffs thereafter started construction on the plot as

per approved plan and ultimately requested the defendants by

his letters dated 9.5.1989 and 2.6.1989 to finalise the

matter on receipt of the entire remaining price. At that

point of lime the defendants demanded that unless the

plaintiff pays at the rate of Rs. 269.92 pr square metre the

matter cannot be finalised 87 that time plaintiff had

already spent a huge sum in making construction had already

agent a huge sum in making construction over the land and

therefore, had no other option than to agrey to any the

enhanced price . consequently the defendants issued the

letter of allotment dated 24.11.1983 (Ex.P.11) fixing the

price of the plot at Rs.3,78,250/- and pursuant to the

aforesaid letter the plaintiff paid the balance amount which

was acknowledged by the defendants under receipt No.13126

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dated 24.11.1989 (Ex.P.7) and receipt No. 13169 dated

24.11.1989 (Ex.P.8). When the plaintiff then requested to

get the conveyance need executed the defendant No. 2 issued

the impugned letter No. 2108 dated 5.4.1990 (Ex.P.12)

intimating the plaintiff that the extent of Rs. 560.60 per

square mere and therefore plaintiffs are required to pay a

further sum of Rs. 4,66. 847/- The plaintiffs, therefore,

filed the suit for the validity of the aforesaid demand of

the defendants. The defendants in their written statement

challenged the main inability of the suit and also took the

stand that the plaintiffs had not approached the court with

clean hands. The defendants admitted of having issued the

letter of allotment (Ex.P.11) dated 24.11.1989 under which

the price of the plot of land been fixed at Rs.3,79,250/-

but contended that defendants were entitled to a higher sum

in accordance of the parties the learned sub-judge, Gurgaon

framed as many as issues and parties laid evidence on the

suit on discussion of the entire evidence on the suit on

discussion of issue Nos. 1 and 2 came to the finding that

increase in the rate was taken by the defendants due to

default of the plaintiffs . On Issue No.3 which is most

crucial issue the learned trial judge came to hold that

under condition No 9 of Ex P.11 enhancement can be claimed

only when the cost of land date enhanced on account of

Acquisition of the competent authority under the land

Acquisition Act and the absence of any material to indicate

that the cost of the land was increased on account of award

of compensation by the competent court under the Land

Acquisition Act the defendants were not entitled to raise

the additional amount of Rs. 4,66,841/- under their letter

dated 5.4.l990, Ex. P.12 and as such the said demand is

illegal, void and ultravires. On issue No. 4 the learned

Judge came, so hold that the area of plot was 1250 square

metre. On the question of jurisdiction of the Court under

Issue No. 5 it was held that the Civil Courts have the

jurisdiction to entertain and decide the controversy. Issue

Nos. 6, 7 and 8 were not pressed by the counsel appearing

for the defendants and as such they are held against the

defendants. On these findings the suit was decreed and it

was held that the defendants are not entitled to claim the

additional amount as per their letter dated 5.4.l990 ( Ex .

P .12 ). Against the judgment and decree of the learned

trial Judge the defendants carried the matter in appeal. The

additional District Judge, Gurgaon disposed of the Civil

Appeal No. 41 of 1994 by his judgment dated 26th of April,

l995 and on reconsideration of the material on record

confirmed the findings of the trial Judge and dismissed the

appeal. While dismissing the appeal the learned Additional

Judge observed that the counsel for the appellant failed to

indicate on what account the rates of the land were further

enhanced from Rs. 269.92 per square metre to Rs. 560.60 per

square metre. The Appellate court also came to the

conclusion that defendants are not entitled to go beyond the

condition laid down in clause (9) of the letter of allotment

(Ex.P.11) and since there was no enhancement of the

compensation by any court in the land acquisition

proceedings the additional demand letter dated 5.4.1990

(Ex.P.12) is without any basis and thus liable to be set

aside. Against the dismissal of the appeal by be set aside.

Against the dismissal of the appeal by the learned

Additional District judge, Gurgaon, defendants preferred the

second appeal which was registered as R.S.A. No.288 of 1996

the learned counsel appearing for the defendants -

appellants himself stated before the high court that in

spite of making efforts the appellants have not been able to

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satisfy as to how defendants are entitled to claim to

enhance price the learned counsel could not indicate any

error in the judgment and decree of the courts below and,

therefore, the second appeal was dismissed by the impugned

judgment dated 25.3.1996 . Hence this appeal by special

leave.

The learned counsel for the appellants contended with

emphasis that the price indicated in the letter of allotment

(Ex.P.11) was tentative as is apparent from clause (9) of

the letter of allotment and therefore, when clause (9) of

the letter of allotment itself postulates enhancement of the

cost of the land the authorities were justified in raising

the additional demand. We do not find any force in the

contentions of the learned counsel for the appellants since

clause (9) enable the competent authority to ask for

additional amount only when there has been enhancement in

the cost of land on account of any award by the competent

authority determining compensation under the land

Acquisition Act. clause (9) is extracted hereinbelow in

extenso:

"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"

The aforesaid clause unequivocally indicates that if

there has been any enhancement in the cost of the land on

account award by the competent authority under the land

Acquisition Act then the said enhancement would be payable

proportionately as determined by the authorities. The

aforesaid clause does not authorise the alloting authority

to raise addition. It is well settled that the competent

authority is entitled to demand the price as on the date of

final letter of allotment, Ex.P.11 has been found to be the

letter of allotment which has not been assailed before us.

Even though the appeal arises out of a civil suit and

parties had appeal arises out of a civil suit and parties

had laid evidence in the forums below and no evidence was

laid indicating the enhancement of cost of land on account

of any development of cost of land on account of any

developmental work yet the appellant being a public

authority, this court had directed by order dated 23.9.1996

to place materials to indicate any development effected to

the plaintiffs plot from the date of possession given to the

plaintiffs and the resultant enhancement of the price. It

was also indicated that the defendants - appellants should

also indicate how many more cases of this type are pending

pursuant to the aforesaid order a letter dated 16.1.1990

from the chief Administrator Haryana Development Authority

to the Estate officer HUDA, Gurgaon has been filed

whereunder the chief Administrator had directed the estate

officer to charge at the current rate of Rs. 560.60 per

square metre while issuing the final allotment letter. The

appellants have also produced a copy of the land to Rs.

560.60 per square metre But these documents are of no

assistance to the appellants inasmuch as the final letter of

allotment (Ex.P.11) was dated 24.11.1989 much prior to the

issuance of letter officer dated 16.1.1990. That apart by

order of this court to dated 23.9.1996 the appellants were

called upon to place materials to indicate if any further

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development to the plaintiffs land has been made from the

date of possession given to them but no such materials have

been placed before us. The so called resolution alleged to

have been passed by the authority enhancing the price of the

land will not be applicable to the plaintiffs plot in whose

case the final letter of allotment had been issued on

24.11.1989 as per Ex.P.11. In the aforesaid circumstances

with the impugned judgment of the High Court affirming the

decision of the learned Additional district judge. This

appeal is accordingly dismissed but in the circumstances

there will be no order as to costs.