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CASE NO.: Appeal (civil)  4611 of 1999

PETITIONER: Sanjay Gera                                       

RESPONDENT: Haryana Urban Development Authority & Anr.                                                

DATE OF JUDGMENT: 22/02/2005

BENCH: ASHOK  BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.                                                                                                                                                                                                                                                                                    This appeal is directed against the judgment  of  the learned Single Judge of the Punjab & Haryana High  Court whereby the learned Single Judge by his order dated  October 29,1998 has dismissed the Second Appeal.  Aggrieved against this order the present Special Leave  Petition was filed and leave was granted by this Court.  Pending appeal, the operation of the order of the learned  Single Judge was stayed, thereby the additional amount  claimed by the respondents  was stayed.                  Brief facts which are necessary for disposal of this  appeal are that the plaintiff-appellant herein was allotted Plot  No.940 vide allotment  letter bearing No.21548 dated August  20,1986 and he deposited an amount of Rs.18,600 in  compliance of the conditions of  the allotment and sent the  required documents. The defendant- respondents demanded  the annual instalment  on account of the said plot and the  plaintiff-appellant deposited the same vide receipt dated  August 21,1987. After deposit of the total amount demanded  by the defendant-respondents, again a demand was raised  by the defendant-respondents by sending letter No.1300  dated January 15,1993 to the plaintiff-appellant demanding a  sum of Rs. 38,400/- to be paid within a period of  thirty days  from the date of issue of the letter in respect of the above  said plot. The plaintiff-appellant challenged this letter dated  January 15,1993 as illegal, void and against the principles of  natural justice and on various other counts. The grievance of  the plaintiff-appellant was that the demand raised by the  defendant-respondents is not valid as the said demand is not  on account of any award given by any competent authority  under the Land Acquisition Act and the defendant- respondents cannot revoke the allotment made in his favour.  The plaintiff-appellant made a request to the defendant- respondents to revoke the letter dated January 15,1993 but  the defendant-respondents refused to do so. Therefore, the  plaintiff-appellant was compelled to file the present suit with   prayer for a declaration to the effect that the letter dated  January 15,1993 in respect of Plot No.940, Sector 14, Part,  Hisar issued by defendant No.2 is illegal, void and liable to  be set aside and he also prayed for consequential relief for  permanent injunction restraining the defendants from  revoking, reviewing or cancelling the allotment letter issued  by the defendants vide Memo No.21548 dated August

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20,1986 and from taking any action on the basis of the  aforesaid letter. The plaintiff- appellant also sought for  temporary injunction directing the defendant- respondents to  deliver the possession of the plot.

       The defendant-respondents appeared and filed the  written statement and raised number of preliminary  objections as to the jurisdiction, maintainability and non- joinder of necessary parties. However, on merits, the  defendant- respondents admitted that the allotment in favour  of the appellant and also admitted issue of letter dated  January 15,1993. It was alleged that the plaintiff-appellant  was bound by the terms and conditions of the allotment letter  as in the said letter the price of the plot was tentative and the  defendants were fully entitled to demand additional amount,  the plaintiff was under obligation to pay the same. On the  basis of these pleadings, six issues were framed by the trial  court which read as under :

" 1.    Whether the letter No.1300 dated  15.1.1993 issued by defendant No.2 in  respect of plot No.940 is illegal, null and  void on the grounds mentioned in the  plaint?

2. Whether the plaintiff is entitled to the  relief of permanent injunction as prayed  for ?

3.Whether the civil court has got no  jurisdiction to try the present suit?

4.Whether the suit is not maintainable in  the present form ?

5.Whether the suit is bad for mis-joinder of  necessary parties?

6.      Relief."

Both the parties were allowed to lead evidence. The plaintiff  in support of his case examined  one Krishan Kumar as  P.W.1 and the defendants  examined  one Rajpal as D.W.1.   The trial court examined the matter in the light of the issues  framed and evidence  led therein. It was found that as per  the condition No.9 of the allotment letter the price is tentative  to the extent that any enhancement in the cost of the land  awarded by the competent  authority under the Land  Acquisition Act shall be payable proportionately, as  determined by the authority.  The additional price determined  shall be paid within thirty days of its demand.  It was also not  disputed that the enhanced demand presently sought by the  defendants has not been ordered by any authority under the  Land Acquisition Act. D.W.1- Rajpal  admitted this fact in his  cross-examination and as per D.W.1 the present demand is  in pursuance of the order issued by the Government  directing the defendant No.1 to pay higher amount of  compensation to the Animal Husbandry Department. It was  pointed out that this letter dated January 15,1993 was issued  under bona fide belief that Defendant No.1 would be getting  land from the Animal Husbandry Department at the rate of  Rs.1,21,000/- per acre but the Government has refused to  deliver possession of the land to Defendant No.1 unless the  price of the land at the rate of Rs.3 lacs per acre is paid by  

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the Haryana Urban Development  Authority. Therefore, there  is escalation of the price from Rs.1,21,000/- to Rs.3 lacs per  acre which is proposed to be paid by Haryana Urban  Development Authority to the Animal Husbandry Department  and therefore, it was sought to be justified that as per  Condition No.9 the defendants were demanding the extra  amount.

       The  learned trial court found that as per condition No.9  of the allotment letter the plaintiff could only be called upon  to pay the enhanced amount  as per  the order of the  competent authority under the Land Acquisition Act. But  there is no such order or award  given by the Land  Acquisition Officer to raise  this amount. Therefore, the  learned trial court held that as per condition No.9 of the  allotment letter   on account of any enhancement in the cost  of the land awarded by the competent authority under the  Land Acquisition Act  the price can be enhanced but there is   no such letter issued by the Land Acquisition Officer  demanding such enhanced amount. The trial court after  examining the evidence on record found that there is no  evidence led as alleged by the defendants in the written  statement that the amount is sought to be raised on account  of refusal of the Government to grant possession of the land.  Learned trial court examined the statement of D.W.1- Rajpal,  Assistant  Estate Officer, Haryana Urban Development  Authority, Hisar. D.W.1  only admitted issue of Ext.P-3 and  the condition No.9  of the allotment letter for enhancement  and demand raised by  the defendants. It was also deposed  by him that the price was tentative but he admitted that for   enhancement of the price there is no order or award of the  competent authority under  the Land Acquisition Act on the  basis of which the price has been enhanced. In cross-  examination he has deposed that  the Deputy Commissioner  had officially forwarded the D.C.rates but he has not brought  any original D.C.rates. He did not produce any file or letter   or notice showing as to why this enhancement was  necessitated. Therefore, on the basis of the evidence  adduced by the defendants, the trial court found that the  defendants have failed to substantiate their allegation and  accordingly, decided the issue No.1 against them. Likewise  on the basis of the finding on issue No.1 he decided all   other issues against the defendants and issued injunction  directing the defendants not to revoke or review or cancel  the allotment and permanently injuncted them from claiming  the aforesaid amount.  Aggrieved against this order the  defendant-respondents preferred an appeal before the  Additional District Judge, Hisar. Learned Additional District  Judge reversed the finding of the trial court and held that it is  true that there is no order under the Land Acquisition Act  regarding enhancement of the cost but this price was to be  paid by the plaintiff-appellant on account of the fact that the  respondents i.e. Haryana Urban Development Authority had  to pay the Department  of Animal Husbandry the amount at  the higher rates  and this is being sought to be recovered  from the plaintiff-appellant. In support of this a reference was  made to a decision of the Punjab & Haryana High Court. But  unfortunately the appellate court ignored the evidence on  record and proceeded to decide the matter on the basis of  the judgment of the Punjab & Haryana High Court without  referring to  the fact whether the defendant-respondents had    led necessary evidence to substantiate the allegation or not.   Against the order of the appellate court a second appeal was  preferred by the plaintiff-appellant before the High Court.   Learned Single Judge of the High Court affirmed the finding

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of the appellate court i.e. Additional District Judge, Hisar.  Aggrieved against the said order the present special leave  petition was  filed by the plaintiff-appellant.                  We have heard learned counsel for the parties and  perused the records. There is no gainsaying that as per  condition No.9 of the allotment order the price in question  was only tentative. But the condition is qualified that in case  any award  is  given by the Land Acquisition Officer the price  can be enhanced. Condition No.9 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 be  payable proportionately as determined by  the authority. The additional price  determined shall be paid within thirty days  of its demand."

As per this condition enhancement could be made on the  cost of the land  as per the award by the competent authority  under the Land Acquisition Act. But no such award was   given by the Land Acquisition authority.  In a suit  a duty is   cast on the defendants to lead evidence to show that  increase on the cost of the land is necessitated  because of  enhancement of paying higher rate of compensation to the  Animal Husbandry Department.  But no such  evidence was  led  in the suit.  D.W.1 nowhere stated that this  enhancement was warranted because Animal husbandry  Department had to be paid compensation at higher rate for  acquisition of this land.  It may be that  because of  decision  given by the Punjab & Haryana High Court, it enabled the  defendants   to claim higher price for allotted plot.  In a civil  suit all facts have to be pleaded and proved. But in the  present case there is no evidence to substantiate the  allegation.  It was incumbent on the part of the Haryana  Urban Development Authority to substantiate  the same by  leading proper evidence that the enhancement was effected  on account of increase in the price of acquisition of land.  But  the statement of D.W.1, the only evidence which has been  led by the defendant-respondents is significantly silent on  this issue.  In civil matters, the rights of the parties cannot be  determined just on the basis of any other judgment on   questions of fact. It is the duty of the defendants to  specifically plead and prove their case by leading proper  evidence in the matter. As per the evidence led by the  defendant-respondent i.e. the documentary evidence as well  as the oral evidence, the allegations made by the defendants  are not substantiated. So far as condition No.9 of the  allotment letter is concerned, there is no dispute that the  defendants can demand additional price as the price at the  time of allotment was tentative. But in order to justify the  enhancement of the price as per condition No.9 of the  allotment letter, the defendants had to lead proper evidence  to substantiate the allegation.  There is no such evidence  produced by the defendants. Therefore, the trial court has  rightly approached in the matter and this is a case of total  misreading of the evidence by the learned Additional District  Judge as well as by learned Single Judge of the High Court.

       In the result of our above discussion, we are of  the  opinion that the order passed by the trial court is justified and  the view taken by the Additional District Judge as well as

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learned Single Judge of the High Court in the facts and  circumstances of this case does not appear to be justified.  Hence, we allow this appeal  and set aside the order passed  by the learned Single Judge of the High Court as well as the  order passed by the Additional District Judge, Hisar and  confirm the order   dated  March 27,1996 passed by the trial  court. No order as to costs.