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1999 DIGILAW 85 (HP)

SHASHI SHARMA v. H. P. NAGAR VIKAS PRADHIKARAN

1999-05-26

D.RAJU, LOKESHWAR SINGH PANTA

body1999
JUDGMENT LOKESHWAR SINGH PANTA, J.—The above writ petitions may be dealt with together by this common order since the learned Counsel appearing for the petitioners as well as for the respondent have made their submissions in common and except the variations in facts relating to the identity of the property, the amount actually to be paid by the individual petitioner in respect of the respective allotments made in their favour, the liabilities as also the mutual rights of the parties are governed by common set of facts and circumstances flowing from the documents executed or mutual correspondence exchanged between them, which in our view form the basis of the contract between the parties. As a matter of fact, the learned Counsel for the petitioner in CWP No. 1314/95 made the leading arguments on behalf of the petitioner and the factual details have been highlighted more in respect of the case in CWP No. 1314/95. Even with reference to such factual details, the respective petitioners have also even before filing these writ petitions entered into Hire Purchase Agreement with the respondent-authority and despite the factum of executing such agreement, they have filed the present writ petitions. 2. Shimla Development Authority was established and constituted for Shimla Planning Area under the Town and Country Planning Act in the year 1983. The said authority in the year 1986 has launched housing scheme named and styled as 4th Partially Self Financing Scheme for employees for residential complex to be constructed below Bishop Cotton School in Kasumpti Zone of New Shimla. The respondent-authority vide publicity in various newspapers and by other modes invited the applications for purchase en 99 years lease hold basis, houses and developed plots and the last date for receipt of applications was extended to 31.7.1986. The petitioners have placed on record copy of the notification marked Annexure P-l. Shimla Development Authority lateron was merged and re-named as H.P. Vikas Pradhikaran-respondent herein. The petitioner in CWP No. 1314/95 and his wife Smt. Kiran Sharma who are serving in Nationalized Bank appear to have enrolled themselves for getting Type-B category of plot in the year 1986. Similarly other petitioners appear to have enrolled themselves for getting plots. The petitioners have alleged that the possession of the plots was to be delivered by the respondent-authority within one year from the date of closer of the scheme i.e. on or before 1.10.1987. Similarly other petitioners appear to have enrolled themselves for getting plots. The petitioners have alleged that the possession of the plots was to be delivered by the respondent-authority within one year from the date of closer of the scheme i.e. on or before 1.10.1987. The petitioners in CWP No. 1314/95 deposited a sum of Rs. 36,000/- on or before December 1987 for Type-B category of plot. The cost of the plot was tentatively fixed by respondent-authority at Rs. 60,000/- including the earnest money of Rs. 13,800/ - and the first instalment of Rs. 4,200/- was to be made before 9.12.1986. In letter dated 17.11.1986 marked Annexure P-3 Chief Executive Officer of the respondent-authority requested the petitioners to make the first instalment on or before the said date and thereafter 12 monthly instalments of Rs. 1,500/- were to be made before 9th of each month from January 1987 to December 1987 and the balance amount may be payable with interest in six years starting from January 1988. The default clause has been incorporated in the said letter intimating the petitioners that if the payment of instalments is defaulted interest @ 18 per cent per annum shall be charged on the payment due. It is also stated in the said letter that as soon as the plots are ready for giving possession, the petitioners will be intimated and specific plots shall be allotted by draw of lots and when any person desiring to get any particular block and/or any particular plot he may give his preference for a particular block and/or any particular plot on payment of extra cost which in the case of particular block at the rate of 2% of the total cost and for particular plot at the rate of 6% of the total cost. The petitioners alleged that they were not handed-over the possession of the plots within the time fixed by the respondent-authority and after the expiry of about four years, the petitioners received letter Annexure P-4 from the respondent-authority whereunder all of a sudden cost price of plot from initially Rs. 60,000/- was enhanced to Rs. 1,13,914/- and the petitioners had no option but to accept the increase of the price of the plot and took the delivery of the possession of the plots on 20.3.1992. 60,000/- was enhanced to Rs. 1,13,914/- and the petitioners had no option but to accept the increase of the price of the plot and took the delivery of the possession of the plots on 20.3.1992. On 6.5.1995, the respondent-authority issued letter to the petitioners in CWP No. 1314/95 marked Annexure P-6 whereunder they were informed that a sum of Rs. 1,13,914/- only has been received from them by the respondent-authority as tentative cost of plot No. 27 Type-B category and now nothing was due from them towards the tentative cost of the above mentioned plot as demanded by the respondent-authority. The petitioners have alleged that they were taken by surprise that the enhanced amount of price of Rs. 1,13,914/ - was demanded as tentative cost of plot and whereas they were under the impression that the said price was total consideration of the plot which was allotted to the petitioners. The petitioners alleged to have made representation (Annexure P-7) to the respondent-authority challenging to the increase of the price of the plots based upon tentative price and also requested the respondent-authority to release the interest @ 18% on the deposit made by them till the date of possession of the plots were delivered to them. The petitioners have placed on record a copy of the order marked Annexure P-9 passed by Himachal Pradesh Consumer Disputes Redressal Commission, Shimla dated 7.8.1992 wherein interest @ 18% on the deposit made by an allottee was awarded to her for delayed period of possession was awarded by the Commission and on the basis of that order, the petitioners made another representation claiming the interest in the same and similar situation. The petitioners alleged that the respondent-authority vide Annexure P-10 directed them to deposit an additional amount of Rs. 42,811/- and this amount has been demanded on the ground that the learned District Judge, Shimla had enhanced the award of land acquired by the respondent-authority in reference case(s) on 30.4.1993 and that the petitioners were directed to deposit the enhanced amount within one month in one go. 42,811/- and this amount has been demanded on the ground that the learned District Judge, Shimla had enhanced the award of land acquired by the respondent-authority in reference case(s) on 30.4.1993 and that the petitioners were directed to deposit the enhanced amount within one month in one go. All the petitioners in these petitions being aggrieved have assailed the action of the respondent-authority on the ground that the respondent-authority has not delivered the possession of the plots within the stipulated time and the petitioners got the possession after four years and for the delayed possession they should be paid interest at the rate of 18% per annum on the sum deposited by them from the date till delivery of possession of the plots. The petitioners also alleged that the respondent-authority was not competent and authorized to enhance the initial price and thereafter additional demand of Rs. 42,811/- based upon the enhancement of the amount of compensation awarded by the Court. The petitioners have alleged that whole action of the respondent-authority is arbitrary, illegal inasmuch as unjust and improper and that they have claimed payment of interest @ 18% per annum on sum of Rs. 36,000/- deposited by them before the delivery of plot or to adjust the said amount against the enhanced amount demanded by the respondent-authority In their reply, the respondent-authority raised two preliminary objections, namely, that the petitions suffer from delay and laches and that the dispute, if any, involved in the present writ petitions would lie within the realm of contract between the parties and the present writ petitions are, therefore, not maintainable. 3. On merits, the respondent-authority has denied having made any specific demand or promise with regard to the handing over of the possession of the plot within one year as alleged by the petitioners. The respondent stated that the possession of the plots given to the petitioners within a reasonable time and the petitioner in CWP No. 1314/95 was delivered possession on 29.3.1991 and not on 20.3.1992 as given by him in his petition. The respondent stated that the possession of the plots given to the petitioners within a reasonable time and the petitioner in CWP No. 1314/95 was delivered possession on 29.3.1991 and not on 20.3.1992 as given by him in his petition. It is stated that all the petitioners had agreed to the terms and conditions contained in the allotment letter as well as sale deeds executed by them and the petitioners were specifically told by the communication that the initial as well as increased amount of price of plots were tentative and on such representation, the petitioners accepted the terms and conditions and got themselves registered. They have entered into agreement with the respondent-authority and took the possession of the plots allotted to them and thereafter started paying the instalments due to them. The order of the Himachal Pradesh Consumer Disputes Redressal Commission relied upon by the petitioners in their petitions is said to be not applicable in the facts and circumstances of the present case as the said order is personam and not a judgment in rem. The respondent-authority stated that the Himachal Pradesh Consumer Dispute Redressal Commission awarded interest in that case for delayed delivery of the possession of the plots to the allottees but in the present case the delivery of the plots was handed over to the petitioners-allottees within a reasonable time. Further, it is alleged that the petitioners were asked to deposit a sum of Rs. 42,811/ -, the land compensation awarded by the District Judge, Shimla and the such amount has been demanded in accordance with the terms and conditions of the scheme and the lease deeds under which the petitioners have agreed to make the deposit of enhanced amount of price if the amount of compensation for the land acquired by the respondent-authority came to be enhanced by the Civil Court. The respondent-authority has denied all other allegations made by the petitioners like discrimination, arbitrary, illegal, unjust and improper. 4. Before undertaking consideration of the submissions of the learned Counsel appearing on either side, it is appropriate to advert to certain salient features of the Scheme, terms conditions and the stipulations contained in some of the documents indisputably governing the rights of the parties in this case. In public invitation (Annexure P-l) initially the cost of T3rpe-B category of plots has been notified as Rs. 60,000/- under the heading of liability and conditions. In public invitation (Annexure P-l) initially the cost of T3rpe-B category of plots has been notified as Rs. 60,000/- under the heading of liability and conditions. It finds mentioned under Clause 2 thereof that an allottee shall enter into Hire Purchase Tenancy Agreement with respondent-authority before taking possession of the plots. It appears that subsequently, vide Annexure P-2 some corrections and amendments were made the 4th partially Self Financing Scheme for Government Employees and under sub-clause (iv) of Clause 6 in addition to executing Hire Purchase Tenancy agreement by the allottee with the respondent-authority before taking possession, sale lease-deed shall be signed between the parties. Under Clause (v) right is reserved by the respondent-authority to change cost depending upon actual cost of construction, escalation in cost of land, material, labour or for any other reason. Para 7(a) under the heading Payments Towards Cost of the Unit after Allotment has been amended and read as Under: "After a person has been allotted a house/flat/plot, he/she will called upon to make balances payment in monthly instalments with interest." 5. A registered letter was sent to petitioner S.K. Sharma by CEO-cum-Chief Engineer of the respondent-authority on 23.2.1991 conveying the approval of the allotment of the plot to the petitioner and the cost and mode of payment have also been mentioned therein. Para 6 of that letter stipulates that the possession of the plot shall be handed over after the petitioner has executed the Hire Purchase Tenancy Agreements on the form prescribed by the respondent-authority and also after executing sale deed (Annexure P-11) and they have started making the payments of the instalments due on the terms and conditions contained in Annexure P-4 and sale deed. 6. Mr. Lalit Sharma learned Counsel appearing on behalf of the petitioners vehemently contended that the petitioners are entitled to interest @ 18% per annum for the delayed delivery of the possession in respect of the amount of Rs. 36,000/- which remained with the respondent-authority w.e.f. 9.10.1997 to 1.3.1987 as has been awarded by the Himachal Pradesh Consumer Redressal Commission in the case of Smt Indira Gupta v. Shimla Development Authority, and that the petitioners cannot be discriminated on that ground by the respondent-authority and that the respondent-authority should have complied with the reasonings given by the Commission in the present cases without dragging them to the Courts or other forum. In support of this submission, he has relied upon the judgment of the Supreme Court in Sengara Singh and others v. The State of Punjab and others, (AIR 1984 Supreme Court 1499). 7. We have given our thoughtful consideration to the law laid down by Supreme Court in the said judgment and found that the ratio of the decision is of no help to the petitioners in the present cases. In that case, the State of Punjab initiated disciplinary action and dismissed about 1100 members of the Police Force on the ground that they had participated in an agitation which was impermissible under the rules governing the discipline in the Police Force of the State of Punjab. A number of criminal prosecutions were filed against the participants in the agitation. Some of the members of the Police Force who were dismissed from service filed writ petitions in the High Court of Punjab and Haryana, but they were dismissed. After the dismissal of the writ petitions about 1000 former members of the Police Forces were reinstated and criminal cases pending against some of them were withdrawn. A committee consisting of members of the superior rank of the Police Force was constituted by the State Government to review the cases of the dismissed agitators and reinstatement followed on the recommendations of the Committee. It was conceded that of the 1100 dismissed agitators 1000 were reinstated and the rest were left to fend for themselves. Those who were thus weeded out by the Committee filed writ petitions in the High Court. 8. The Supreme Court held that the order of the High Court dismissing the petitions was liable to be quashed. Logically the petitioners must receive the same benefit which those reinstated received in the absence of any distinguishing feature in their cases. Accordingly, the petitioners would be entitled to reinstatement in service. This is not the position in the cases in hand and the ratio of the Supreme Court judgment is not and cannot be applicable in the cases in hand. 9. The next contention of the learned Counsel for the petitioners was that the judgment of the Himachal Pradesh Consumer Redressal Forum is a judgment in rem and it ought to have been applied by the respondent-authority uniformly in the cases of the petitioners before us. 9. The next contention of the learned Counsel for the petitioners was that the judgment of the Himachal Pradesh Consumer Redressal Forum is a judgment in rem and it ought to have been applied by the respondent-authority uniformly in the cases of the petitioners before us. We are afraid that we cannot accept this proposition projected by the learned Counsel for the petitioners. The judgment of the Supreme Court on which reliance has been placed by the learned Counsel for the petitioners in Sub-Inspector Sadhan Kumar Goswami and others v. Union of India and others (1997) 2 Supreme Court Cases 225? has no application of law in the peculiar facts of the present cases. In that case, the petitioners are Groups C and D employees under the Special Security Bureau in North-Eastern Region of India filed writ petition under Article 32 of the Constitution of India for special duty allowance as per the orders of the Central Government. The similar matter was decided by the Apex Court in Union of India v. Vijayakumar (1994 Supp (3) SCC 649) and as per the decision, the petitioners were not entitled to special duty allowance. The petitioners in that case contended that since Groups A and B staff were being given the allowance, denial of the same to the petitioners violated Article 14. Rejecting this contention and dismissing the writ petition, their Lordships held that admittedly, the petitioners were Groups C and D employees and were bound by the above declaration of law made by the Supreme Court. Merely because they were not parties to the judgment, they could not file writ petition under Article 32. The judgment of the Supreme Court would indicate that it did not make any distinction between Groups C and D and Groups A and B officers and all were, governed by the law under Article 141. The judgment proceeded to hold that the petitioners were entitled to the payment of the special duty allowance irrespective of whether or not they were parties to the judgment rendered in Vijay Kumars case. In the present cases, we cannot hold that the order of the Consumer Redressal Commission will be universally applicable to the cases of petitioners and other similarly situated allottees nor we can say that the order is judgment in rem. The submissions of the learned Counsel for the petitioners appear to be misconceived and unfounded. In the present cases, we cannot hold that the order of the Consumer Redressal Commission will be universally applicable to the cases of petitioners and other similarly situated allottees nor we can say that the order is judgment in rem. The submissions of the learned Counsel for the petitioners appear to be misconceived and unfounded. The learned Counsel for the petitioners while relying upon the judgment of the Delhi High Court in Ashok Kumar Behal and another v. Union of India and others (AIR 1994 Delhi 149), contended that the revision of land rate by respondent-authority is arbitrary and unreasonable due to delay of four years in handing-over the possession of the plots to the petitioners by the respondent-authority. In that case, the allotment of flats after 12 years on the basis of unilateral increase in land rate/premium was held to be arbitrary and unreasonable by the Division Bench of Delhi High Court on the ground that before doing so no notice was issued to the registrants petitioners and no material on record was produced to support the revision of rates except the mere allegations that it was a policy decision. Such facts are not attracted in the cases in hand. Here the price of the plots came to be increased on account of enhancement of the compensation of the land acquired by the respondent-authority for allotment to the petitioners and other allottees and under para (v) of the corrected and amended 4th partially Self Financing Scheme for Government Employees noticed above, the respondent-authority reserved right to change the cost depending upon the actual cost of escalation in cost of land, material, labour or any other reason. The respondent-authority has written so many letters to the petitioners asking them to deposit the enhanced compensation amount with interest and it was for the petitioners to abide by the terms and conditions of the allotment letter. Hire Purchase Tenancy Agreement and sale deed executed by them with the respondent-authority. 10. We may be obliged to notice that on similar and identical grounds CWP No. 1370 of 1995, titled Rakesh Gupta v. Shimla Development Authority, was filed and dismissed by the Division Bench of this Court on 8.12.1994. In that case also increase demand of Rs. Hire Purchase Tenancy Agreement and sale deed executed by them with the respondent-authority. 10. We may be obliged to notice that on similar and identical grounds CWP No. 1370 of 1995, titled Rakesh Gupta v. Shimla Development Authority, was filed and dismissed by the Division Bench of this Court on 8.12.1994. In that case also increase demand of Rs. 41,146/- was made from the petitioner as a result of the award of the District Judge and such demand was found not only covered by Clause 6 of the agreement signed by the petitioner but otherwise just and proper and coming to that conclusion the Division Bench relied upon the judgment of the Supreme Court in Delhi Development Authority v. P.K. Jain (1996 (6) Judgment Today SC 292). We may also be obliged to notice the judgment of the Supreme Court on the point of increased demand of plots as a result of the award of the District Judge made under the Land Acquisition Act for the land involved for allotment to the allottees under the housing scheme and in that case also the respondent-authority was the party and one Asha Rani was the allottee and reported in U.J. (SC) 1996 (1) 797 (Shimla Development Authority v. Asha Rani). The Supreme Court observed that the admitted position in that case was that the land of a private owner was acquired under the Land Acquisition Act for the Self Finance Scheme by the SDA and as a matter of fact, when scheme for construction and allotment of the house to the allottees is initiated, allottee is bound to bear the cost of the value determined by the Civil Court under Section 26 of the Land Acquisition Act by award and decree or thereafter if an appeal is filed and further increase is made under Section 54 of the Act. In that case admittedly, on reference under Section 18, the Court had determined the compensation by award and decree made under Section 26 on April 30, 1993, and as a result of the award, was required to be modified, consistent with the escalation in the cost of the value of the land as a result of determination of the compensation by the Civil Court. The judgment proceeded to hold that the escalation and the value of the land when the Court enhanced the compensation under provisions of the Land Acquisition Act at various stages has to be paid by the allottees or otherwise who would pay the escalation cost value of the land etc. as the Shimla Development Authority is not a private builder for profit. 11. In the present cases also admittedly the land was acquired by the respondent-authority who is re-named and substituted as Himachal Pradesh Nagar Vikas Pradhikaran for allotment to the allottees and the petitioners and allottees are bound to make the payment of the escalated price of the plots for reasons beyond control of the respondent-authority. Under the circumstances, the petitioners cannot escape their liability to pay escalated price of the plots. 12. As regards interest claimed by the petitioners on the sum deposited by them, based upon the decision of the Himachal Pradesh Consumer Redressal Commission, we do not wish to comment on the decision of the Commission nor do we think that we should enforce the same by a writ of mandamus. The Division Bench in Rakesh Guptas case (supra) has also dealt with that part of the submission of the learned Counsel in that case and we subscribe our agreement to the views expressed by the Division Bench on the question of claiming interest on the amount deposited by the petitioners. The claim of the interest by the petitioners must be based upon terms and conditions of the agreement signed by party. The agreement permits the respondent-authority to claim interest for the period for which instalment has been delayed. If that interest on that amount has already been paid by the petitioners, there would be no justification in making any further claim on account of interest if it is otherwise permissible*under the agreement. This exercise would, therefore, involve accounting which this Court cannot do while exercising writ jurisdiction under Article 226 of the Constitution of India. The petitioners are, therefore, free to have recourse before such forum as may be available for them under the law for the purpose. 13. For all the reasons stated above, there are no merits in these writ petitions. The writ petitions shall stand dismissed. Interim orders, if any, granted, shall stand vacated. No costs. Petition dismissed.