RSA No.2091 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2091 of 2007 Date of Decision: 14.1.2009 Karnal Improvement Trust, Karnal ..Appellant Vs. Brij Mohan & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Mahavir Sandhu, Advocates, for the appellant. Mr.V.K.Jindal, Advocate, for respondents No.1 to 4. Mr.Saurat Garg, Advocate, --- Vinod K.Sharma,J. (Oral)
This order shall dispose of RSA Nos. 2091 to 2094 of 2008 titled Karnal Improvement Trust, Karnal Vs. Brij Mohan & Ors., Karnal Improvement Trust, Karnal Vs. M/s Agia Ram & Company & Ors., Karnal Improvement Trust, Karnal Vs. M/s Haryana Agricultural Corporation & Ors., and Karnal Improvement Trust, Karnal Vs. Inder Pal Singh & Ors., as RSA No.2091 of 2007 2 common question of law and facts are involved in all these four appeals.
For the sake of brevity, facts are being taken from RSA No.2091 of 2007.
The plaintiff/respondents filed a suit for declaration to the effect that fixing of price of SCFs allotted to the plaintiff their predecessor- in-interest and the notice served as a consequence thereof for payment of Rs.,5,67,348/- calculated by adding interest to the concessional price fixed was illegal and not binding on the rights of the plaintiffs.
Notice for resumption was also challenged. The plaintiffs claimed that the calculation of the price, interest claimed as well as notice issued for resumption of the properties was against the provision of Punjab Town Improvement Act (for short the Act) and the Land Disposal Rules (for short the Rules) framed by the appellant/defendants as also against the directions given by the Hon'ble Supreme Court of India.
The plaintiff/respondents claimed that they were entitled to allotment of SCF on reserved price as defined in the Rules, however, qua SCF No.10-A the matter stood closed. Relief of injunction was also sought against the appellant/defendants from recovering the amount in pursuance to the notice.
A notification under section 36 of the Act for implementation of town improvement scheme was issued on 8.8.1963 and the notification under section 42 of the Act was issued on 22.7.1966. The land including the land owned and possessed by the plaintiffs was acquired and the compensation in respect of acquired property was assessed by the Land RSA No.2091 of 2007 3 Acquisition Collector.
References made by the plaintiff/respondents were dismissed for non-prosecution.
Though the plaintiff/respondents failed to appear in the Reference Court, however, keeping in view that the learned court was bound to answer the reference made under section 18 of the Land Acquisition Act, it was held that the compensation granted was just and equitable and did not require any enhancement.
It is also not in dispute that the plaintiff/respondents claiming themselves to be displaced persons sought allotment of plot on concessional rate which, in fact, was allotted to them and 25 per cent of the tentative price stands paid.
The plaintiff/respondents disputed the calculation of the principal amount as well as other charges and interest claimed by claiming it to be excessive. The writ petition filed by the plaintiff/respondents to challenge fixing of concession of price was dismissed by this court.
Letters Patent Appeal also met the same fate.
M/s Rama Fruit Agency one of the allottees whose land was also acquired but under a different scheme i.e. Scheme No.37 was not made allotment as no SCF was available with the appellant/defendants.
M/s Rama Fruit Agency, therefore, was allotted one SCF under Scheme No.5 i.e. the scheme under which the plaintiff/respondents were allotted SCF. Concessional rate fixed as well as interest claimed was challenged by M/s Rama Fruit Agency. The writ petition was dismissed. RSA No.2091 of 2007 4 Letters Patent Appeal filed by the M/s Rama Fruit Agency also met with the same fate. However, M/s Rama Fruit Agency preferred special leave petition wherein on notice having been issued to the appellant/defendants a concession was granted and the SLP was disposed of by passing the following order:-
" THE PETITION FOR SPECIAL LEAVE TO APPEAL above-mentioned being mentioned before this Court on the 23rd day of May, 1984,, upon hearing counsel for the Petitioners THIS COURT DOTH modify its ORDER dated 27th April, 1984 shall read as follows:-
"We are of the view that the price payable by the petitioners for allotment of shop under scheme 5 should be on the basis indicated in para 3 of the counter affidavit filed on behalf of the respondent by Mr.P.S.Chawla, Land Officer, Karnal Improvement Trust, Karnal. We accordingly issue an order directing that the price payable by the petitioners for the shop under scheme 5, handed over to them, shall be calculated on the basis of para 3 of the affidavit dated 26th April, 1984 and this will be completed within 3 months from today. In computing such price the petitioners shall be given adjustment of the land which was in their occupation and which they have surrendered in 1975 excluding the Phad land. The amount of the price so determined shall be paid by the petitioners to the Improvement Trust, Karnal in two equal instalments first RSA No.2091 of 2007 5 instalment to the paid within a period of 3 months and the second instalment representing the balance together with interest at the rate of 12% per annum from the date of demand within a further period of three months thereafter.
Reference made by them with regard to their claim pertaining to scheme 37 shall stand withdrawn and the petitioners will forgo the amount of compensation assessed for those properties by the Land Acquisition Collector. If they fail to pay any instalement the relief given to them will stand vacated. If the compensation payable for the acquisition of the land is enhanced in the Reference pending before the Court the Petitioners agree to pay and are hereby directed to pay their share of such enhanced compensation as may be determined according to the rate, with interest at the rate of 12% per annum from the date of the demand."
AND THIS COURT DOTH FURTHER ORDER that this Order be punctually observed and carried to execution by all concerned"
The plaintiffs in the suit, therefore, claim that they are to be treated at par with M/s Rama Fruit Agency for the purpose of calculation of price and interest payable in view of the allotment as they are also displaced persons.
It is also the case of the plaintiff/respondents that the amount of compensation payable for acquisition of land was to be adjusted against the RSA No.2091 of 2007 6 price payable for SCF.
The suit was contested by the defendant-appellants preliminary on the plea that the writ petition filed by plaintiffs in this court was dismissed. The appeal against the said order failed and even in the SLP Hon'ble Supreme Court did not grant the relief to the plaintiff/respondents as granted to M/s Rama Fruit Agency and therefore, their case was not similar to that of M/s Rama Fruit Agency.
However, this plea of the learned counsel cannot be accepted. Hon'ble Supreme Court declined to grant relief to the plaintiff/respondents only because a stand was taken by the defendant/appellants as taken in civil court that the plaintiffs were not similarly situated and therefore, were not entitled to the same treatment.
Hon'ble Supreme Court observed that as there were disputed questions of facts in the case, therefore the plaintiffs should approach the civil court to seek their remedy.
Learned counsel for the appellant/defendants further contends that the land of M/s Rama Fruit Agency was acquired under Scheme No.37 but it could not be allotted SCF as there was no SCF available under the said scheme and it was because of this that they were adjusted under Scheme No.5 and therefore, plaintiff could not be equated with M/s Rama Fruit Agency.
The plea of the learned counsel for the appellants has been rightly rejected by the learned lower appellate court as it is not in dispute that the plaintiff/respondents as well as M/s Rama Fruit Agency were RSA No.2091 of 2007 7 allotted SCFs under Scheme No.5 and at the rate which was the subject- matter of dispute by M/s Rama Fruit Agency. Though learned trial court accepted the plea of the defendants and dismissed the suit, however, in appeal learned lower appellate court decreed the suit and has directed the defendant/appellants to treat the appellants at par with M/s Rama Fruit Agency and charge the same price and interest payable as has been claimed from M/s Rama Fruit Agency as per order of Hon'ble Supreme Court, referred to above.
Thus, no error can be found with the judgment and decree passed by the learned lower appellate court.
Learned counsel for the appellants rightly points out that while treating the plaintiff/respondents at par with M/s Rama Fruit Agency learned lower appellate court has granted relief qua interest to the plaintiff/respondents to which they are not be entitled to.
The learned lower appellate court has ordered that interest on the amount would be calculated from the date of passing of the decree i.e. 30.4.1997. This part of the relief cannot be sustained as it is the case of the plaintiff/respondents themselves that they are to be treated at par with M/s Rama Fruit Agency. Once the appellant/defendants have been held entitled to charge interest from M/s Rama Fruit Agency w.e.f. 21.1.1985 it is not understandable as to how the plaintiff/respondents are to pay interest only from 30.4.2007.
Learned lower appellate court was, thus, wrong in giving this part of benefit. The fault was with the plaintiffs for not approaching the RSA No.2091 of 2007 8 court well in time, they cannot be allowed to take benefit of their own wrong.
These appeal do not raise any other substantial questions of law for determination by this court.
However, keeping in view the fact that fixation of interest from the date of passing of order by the learned lower appellate court is contrary to the judgment passed by Hon'ble Supreme Court with which parity was claimed by the plaintiff/respondents it is ordered that the appellant/defendants are entitled to interest as charged from M/s Rama Fruit Agency on the price fixed w.e.f. 21.1.1985 from the plaintiff/respondents also.
The plaintiff/respondents through their counsel have undertaken that the demanded amount along with interest in terms of the calculation made in the case of M/s Rama Fruit Agency, would be paid within one month of the receipt of a demand and in case no such demand is received within one month it shall be the duty of the plaintiff/respondents to collect the same from the office of the defendants and clear the same within a month from the date of collection.
With the above modification in the judgment and decree, passed by the learned lower court is upheld.
Appeal disposed of.
14.1.2009 (Vinod K.Sharma) rp Judge