IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.9844 of 2001
Date of decision: 7th December, 2009
The Farihills Co-operative Group Housing Society Ltd.
... Petitioner
Versus
State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Ms. Amrita Nagpal, Advocate for the petitioner.
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, whereby petitioner
Housing Society was 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.
Farihills Co-operative Group Housing Society Limited, 74
Deluxe Apartments, B-5, Vasundhara Enclave was allotted Group Housing
Plot No. GHS-16 in Sector 21-D, Faridabad. The area of plot allotted was
4000 square maters/1 acre. The plot was allotted on the tentative price of
Rs.79,16,000/- @ Rs.1979/- per square meter. The allotment letter
(Annexure P-2) was issued on 31st August, 2000. 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
Civil Writ Petition No. 9844 of 2001 2
Society was allotted plot, was deposited in the Court for 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.29,34,840/- @ 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.”
In the writ petition, two-fold grievance has been made. Firstly, it
has been stated that the land was allotted to the petitioner Society 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
Society is entitled to refund and in case this contention is not accepted, then
also petitioner Society is 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
for allotment of site to the petitioner Society. Furthermore, it has been stated
that if the petitioner Society is allowed to participate in the accounting
Civil Writ Petition No. 9844 of 2001 3
process, whereby rate of enhanced amount has been determined, either the
petitioner Society 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 Society had accepted the
allotment letter (Annexure P-2), wherein it was specifically stated and
condition No.6 was incorporated that petitioner Society is 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 Society 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, 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
Civil Writ Petition No. 9844 of 2001 4was @ 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 petitioner 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 petitioner and counsel for
the respondent 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-State has
submitted that rate was enhanced and they are entitled to recover the
Civil Writ Petition No. 9844 of 2001 5
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 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
Civil Writ Petition No. 9844 of 2001 6resolved Haryana Urban Development Authority will adopt a
positive approach”.
In these circumstances, petitioner Society is directed to seek
appointment of Arbitrator in terms of condition No.19 of the allotment letter.
Therefore, on the application made by the petitioner Society 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 Society is 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
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