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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.