Jai Dev v. HIMUDA

Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, Deputy Advocate General for respondent No.2. Justice Kurian Joseph, C.J. (Oral): This case pertains to certain disputes with regard to fixation of land value in respect of the land acquired and given to the petitioner. We have already considered similar cases leading to judgment dated

19.5.2010 and text of the judgment reads as follows:- (cid:147)The petitioners have come up before this court with simple grievance that the respondent-Authority has not yet properly fixed the cost of the land given to them. The Authority was itself constituted with the object of development of sale of commercial plots, flats and houses etc., in Shimla town on no-profit no-loss basis. The acquisition proceedings were initiated in the year 1988. After acquiring the land, it was developed, divided into plots and handed over to the petitioners and others who are similarly situated. According to the petitioners, so far the Authority has not actually - 2 - worked out or fixed the cost of the land. They happened to be before this Court when steps were taken by the Authority to realize the enhanced compensation they had to pay to the land owners as per the enhancement granted by the superior courts. According to the petitioners, the cost of the total land acquired and developed and handed over to the petitioners and others in plots has never been duly fixed. Even when the plots were handed over to them, the Authority only made a tentative fixation and therefore, unless the cost is fixed, severe injustice will be meted out to the petitioners. According to the petitioners, what the Authority has now proposed to recover the enhanced compensation they had to pay to the original land owners from the petitioners and other grantees. It is submitted that even the amounts already realized from the petitioners at the time of allotment itself was tentative, however, taking note also of a reasonable enhancement that could be granted by the superior Courts for the acquired land.

Learned counsel appearing on behalf of Authority on the other hand contends that the Writ Petitions are not maintainable and if at all the petitioners have any grievance left, there is a proper procedure contemplated the Lease Deed itself for resolution of such grievances. At any rate, some of the petitioners having already approached the Civil Court and the Civil Court having already rejected their plaints on the ground of mis- joinder of parties and liberty having been reserved to file proper suits, the petitioners cannot take resort to this extra- ordinary remedy under Article 226 of the Constitution of India. It is also submitted that there are about 800 allottees and majority of them have already honoured the demands made by the Authority and only very few parties have raised the objections. Still further, it is submitted that the petitioners having agreed in the duly executed agreements to reimburse also the amounts in respect of the enhanced compensation granted by the superior Courts, they cannot now turn around and contend that the levy is impermissible.

We do not think that all these questions are to be tackled in minute details in the nature of the order we propose to pass in these cases. However, it has to be noted - 3 - that the petitioners do not have any dispute as to their liability to pay for the cost of the land including the cost that the Authority had to bear on account of the enhancement of compensation awarded by the reference Court and the superior Courts. It is also to be noted that they do not dispute their liability to bear such additional expenses. Their grievance is simple and straight (cid:150) the Authority has not so far fixed the value of the land acquired, developed and transferred the allottees. Learned counsel petitioners submits that the dispute is limited to Sectors 3 & 4 only. Learned counsel for the respondents point out that many in those two sectors have also honoured the demands. Be that as it may. Since there is hardly any disputed question of fact and question is only on the proper fixation of land and since the respondent-Authority does not have any commercial motive in the transaction, it is only appropriate that the cost of the land is properly fixed with notice to the petitioners also, since the Authority has to raise additional demands.

What is the total cost of land involved in the acquisition, development and transfer is a simple question of calculation. No doubt, as rightly submitted by the learned counsel appearing for the respondents, all the administrative expenses in the process will also have to be included under the head (cid:145)cost of land(cid:146). Since the Authority does not have any commercial motive and their idea is only to develop and transfer the land, admittedly on no-profit no-loss basis, in case a proper fixation has not been made as to the actual cost of the land by adding all the above mentioned factors, such an exercise has to be done at a stage when the land value has now been finally fixed since the superior Courts have also rendered their final judgments on the land value. Having gone through the pleadings, what we understand and what we see is that the portion of the land value as enhanced by the superior Courts alone is now sought to be recovered from the petitioners and others. No doubt, there is no harm in it provided an actual fixation had been made as to the total value of the land. In other words, in having realized only tentative cost of land from the petitioners, now that the land value has been fixed by the superior courts, this - 4 - is the time for the Authority to fix the land value. Without such an exercise, is no point levying enhancement in land value as an additional factor. The only exercise that is required in the above scenario is to fix the land value of the total land acquired and developed for the purposes of transfer to the allottees. We make it clear that the process of fixation of the cost of the land cannot be limited to the actual extent transferred to the petitioners and others. Certainly, that would include the common area, green area etc. In other words, the land value is to be fixed in respect of the entire area acquired for the purpose of transfer adding the development charges, the charges borne by the Authority for the amenities, administrative expenses etc.

In the above circumstances, we dispose of these Writ Petitions with direction to the respondent-Authority to make a proper fixation of the actual land value on their avowed objective of no-profit no-loss basis and in case in the process any of the petitioners and others are to bear any more liability, the same can be recovered from them. We make it clear that in computing the administrative expenses, only the allottees in Sectors 3 & 4 shall be proportionately burdened and the entire administrative expenses of the establishment shall not be put on those allottees. We further make it clear that being a matter of such computation, since neither the petitioners nor the respondents are possessed with the wherewithal in the process, it will be open to the petitioners before this Court to nominate two Chartered Accountants for the purpose of such computation and those Chartered Accountants will sit with the Accountants nominated by the respondent-Authority or the Chief Executive Officers and make an endeavour to settle the accounts, as above.

The above exercise shall be completed within a period of four months from today. The interim order, passed by this Court will continue till such time. (cid:148) - 5 -

2. The learned counsel for the petitioner apprehends that the amounts already paid by him will not be duly adjusted. We do not find any basis for such apprehension since while fixing the land value in terms of the judgment the amounts already paid are to be duly adjusted.