C.S.I.O. Co-Op Group Housing … vs The Haryana Urban Development … on 28 October, 2009

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

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