HOUSING BOARD, HARYANA vs Angrej Singh

THIS order shall dispose of above mentioned six appeals as they have arisen out of the common order dated 5.8.2005 passed by District Forum, Panchkula in complaints bearing Nos. 130, 138, 154, 155, 165 and 166 of 2004 separately filed by the complainants.

HOUSING Board, Haryana (hereinafter referred to as the Board) appellant-opposite party gave advertisement in different Newspapers for inviting applications for allotment of Type I category builtup houses located in Baldev Nagar, HOUSING Board Colony, Ambala City. The plot area was 151.74 square yards. The tentative price fixed in this category of house was Rs. 4,55,200. A sum of Rs. 45,520 was payable along with the application at the time of the registration with the Board. The closing date for the receipt of the applications was 7.11.2001. The other terms and conditions for the allotment of the houses were printed in the brochure issued by the appellant. It was stated on the first page of the brochure about the description of accommodation and price of houses and the said houses will be allotted on the price stated in the brochure which will be further subject to finalization. The other condition stated therein is that enhanced compensation of the land on which houses will be constructed, as and when granted by arbitration award or by the Court or any other enhancement in the cost of the land on any account shall be payable by the allottees. Complainants Angrej Singh, Dharam Pal Panwar, Meenakshi Kapoor, Sanjiv Gupta, Som Dutt Gupta and Yogesh Arora named in the title of the appeal applied for the allotment of Type - I category tenements in response to the above mentioned advertisement. They were allotted tenement Nos. 933, 945, 932, 931, 948 and 951 vide memo Nos. 11695, 11760, 11694, 11693, 11710 and 11713 dated 27.11.2003 for the amount of Rs. 4,67,300, Rs. 4,69,200, Rs. 4,67,300, Rs. 4,67,300, Rs. 4,67,300 and Rs. 4,67,300, respectively. Thereafter the opposite party made a demand of Rs. 2,73,820, Rs. 2,78,611, Rs. 2,73,820, Rs. 2,73,820, Rs. 2,73,820 and Rs. 2,73,820 respectively from each of the complainant on account of enhanced compensation of the cost of the land. As the opposite party had insisted for the payment of the enhanced cost of the land before possession of the tenements could be given to them, they made the payments so demanded in lumpsum or in instalments as detailed in the complaints. According to the stand of the complainants, enhanced compensation so demanded was in violation of the terms and conditions published in the brochure as well as regulations of the Board because there has been no award of enhanced compensation by any Court from the date of closing of the application for the allotment of the houses i.e., 7.11.2001 till the date of allotment of the tenements made to the complainants calling upon the opposite party through legal notice to withdraw the demand so made. But finding no response from them, the complainants invoked the jurisdiction of the District Forum by filing separate six complaints seeking direction against the opposite party to withdraw the respective demand illegally made on account of enhanced cost of the land and to refund the amount paid by them under compelling circumstances along with interest @ 18% p.a. from the date of deposit till payment. They also claimed Rs. 50,000 as compensation for mental agony and harassment and Rs. 10,000 as litigation expenses in each complaint. The complaints were contested by the opposite parties. They raised preliminary objections with regard to the locus standi, limitation, non-maintainability of the complaints and jurisdiction of the District Forum at Panchkula to try the complaints. On merits, they stated that the price of the tenements so offered at the initial stage was a tentative price which had been worked out on rough cost estimate and the same was subject to the revision after the construction of the houses depending upon construction cost, etc. They further justified that enhanced cost of the land has been charged from the complainants as per award given before registration of the houses and as the awarded amount was not included in the tentative cost of the houses, same was demanded from the complainants as per note No. 1 of the brochure and Clause 7 of the general conditions. It was further averred that they had right to claim said amount as per Clause 9 of the allotment letter and Clause 2(W) of the hire purchase tenancy agreement. They also relied upon the undertaking given by the complainants to pay revised cost on account of enhanced compensation at the time of taking possession of the tenements allotted to them. In the re-joinder, the complainants while refuting the stand of the opposite parties reiterated their earlier pleas.

On scrutiny of the pleadings of the parties and evidence adduced on record the District Forum arrived at the following conclusions while accepting the complaints of the complainants: (i) The District Forum at Panchkula had territorial jurisdiction to try the complaints. (ii) Stipulated condition No. 2 of Note I of the brochure read with Sub-clause 7 contained in general Clause 11 of the brochure, the demand so made by the opposite party was in violation of the terms and conditions of the brochure and allotment letter and is unfair trade practice on the part of the opposite parties, besides deficiency in service. (iii) The opposite parties had failed to prove on record that any award of the Court granting enhanced compensation was given prior to the publication of the brochure and for that reason the demand of the enhanced compensation made by the opposite parties was not tenable under the law. (iv) That the opposite parties had failed to establish that any material facts have been withheld by the complainants in the complaints.

ON the basis of above findings, the impugned demand made from each of the complainant was quashed vide order dated 5.8.2005 by the District Forum and the opposite parties were directed to refund the amount recovered from each of the complainant on account of enhanced land compensation, if deposited by the complainants within two months from the date of communication of the order, failing which the complainant shall be entitled to interest @ 9% p.a. on the aforesaid amount of enhanced land compensation. Each of the complainant was further awarded Rs. 500 as costs of proceedings. The prayer for awarding compensation of Rs. 50,000 on account of mental agony and harassment was declined. Aggrieved by the said order, the appellant opposite party has filed the above stated six appeals. The learned Counsel representing the appellant has been heard at length.

IT has been strenuously urged by him that the District Forum has gravely erred in quashing the demand of enhanced land compensation made from each of the complainants in accordance with terms and conditions of the agreement and the law governing controversy. Consequently, the order awarding interest and litigation costs have also been challenged on this ground. The entire controversy raised in these appeals boils down to the terms and conditions contained in the brochure and Clause 9 of the allotment letter and Clause 2(W) of the hire purchase tenancy agreement. It is admitted case of the appellant that the appellant had issued brochure during the month of October, 2001 inviting applications for allotment of different category of houses on the tentative price and on the terms and conditions mentioned there in Note I appended to Condition No. 2 of the brochure reads as under: "The price mentioned has been worked out on the basis of rough cost estimates. The price is tentative and subject to revision. After the construction of houses at the time of allotment the price will be worked out and houses will be allotted on the said price which is further subject to finalisation. The enhanced compensation of land on which houses will be constructed, arbitration awards as and when granted by the Courts and any enhancement in cost of land on any account shall be payable by the allottees. The Board reserves the right to increase the amount of instalments, reduce the period of recovery and make modifications in the plot area and plinth area, etc."

It has further been provided in Sub-clause (7) of Condition No. 11 of the brochure that enhanced compensation of land on which houses will be constructed if and when granted by the Courts shall be payable by the allottees. Clause 9 of the allotment letter also refers to the revision of the price of the tenements already specified after the receipt of the final bills for the construction of the tenements or as the result of land award or arbitration proceedings, etc. Clause 2(W) of the tenancy agreement to executed between the parties also specifies that if after the receipt of the final bills for the construction of the tenements or as the result of land award or arbitration proceedings or enhancement in cost of land on any account, etc. the Board considers it necessary to revise the price already specified it may do so and determine the final price payable by the hirer who shall be bound by this determination. In addition, at the time of acceptance of the allotment by the complainant, the complainants had submitted a consent proforma whereby they had accepted the allotment of the house at the tentative cost and had further given an undertaking to pay the revised cost of acquired land compensation. The terms and conditions of the allotment noticed above leave no manner of doubt that allottees had agreed to pay enhanced cost of the land so granted by the Court or in arbitration proceedings as and when determined because it would also cover those cases where any arbitration or land acquisition proceedings were pending at the time when the brochure was issued and also at the time when allotment of the tenements was made to the complainants. Therefore, it would also cover the liability of payment of the complainants when such an arbitration award or award given by the Land Acquisition Courts leading to the enhancement of the cost of the land so allotted to the complainants in future. In case Sanjay Gera v. HUDA, II (2005) SLT 685=2005 (2) RCR (Civil) SC 155, the allotment of the plot was made at the tentative price. Enhancement clause qualified that in case of enhanced compensation under the Land Acquisition Act, price can be enhanced and where no order under the Land Acquisition Act to enhance the compensation has been passed, the compensation cannot be charged. It was also emphasised that the HUDA must lead proper evidence to prove that enhancement was effected due to increased price of acquisition of land as rights of parties cannot be determined on the basis of any other judgment. The opposite parties in para No. 8 of preliminary objection of the written statement had taken up a definite stand that enhancement being charged from the complainant though awarded before the registration of the houses was not included in the tentative cost of the houses and for that reason it was demanded later on from the complainant as per note No. 1 of the brochure coupled with Clause 7 of the general conditions and Clause 9 of the allotment letter read with Clause 2(W) of the hire purchase agreement. But in support of this stand, no evidence was led from the side of the opposite party to establish that any award was rendered in respect of the allotment land prior to the date of allotment of the tenements to the complainants. It was also not proved on record that after the allotment of the land was made to the complainants any arbitration award or any award of the Court has come into existence whereby enhanced compensation has been determined so as to enable the opposite party to claim enhanced cost of the land from the complainant. Under the circumstances of the case, the District Forum had returned a finding that no award prior to the publication of the brochure for compensation of land in question or any award of Court regarding the enhanced compensation was produced. Thus, the District Forum was fully justified in accepting all these complaints and issuing directions noticed above.

FOR the aforesaid reasons, there being no merit in the appeals the same are accordingly dismissed. Appeals dismissed.