✦ High Court of India · 09 Jan 2012

January 9 v. Himachal Pradesh Housing and Urban Development

Case Details High Court of India · 09 Jan 2012

Court

High Court of India

Decided

09 Jan 2012

Bench

Not available

Length

15,855 words

Acts & Sections

Constitution of India Contract Act §60 Himachal Pradesh Housing and Urban Development Authority Act 2004 Himachal Pradesh Societies Registration Act 2006 This was done under the provisions of the Himachal Pradesh Housing Board Act 1972 Town and Country Planning Act 1977

Cited in this judgment

Judgment

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus for quashing the arbitrary, unreasonable and illegal demand being raised by respondent No.1 as the additional amount of cost of plot in respect of plot/House allotted to the petitioner in the year, 2 1989 under the 5th Partially self Financing Scheme and as well as for quashing the demand for interest on account of delayed payment of the additional cost and for directing respondent No.1 to refund the excess amount received from the petitioner on account of the cost of the plot area.

2. C.W.P No. 3206 of 2011-D Sushil kumar Gupta, S/O S. Mehar Chand Gupta, Plot No. 452, Type- B, Sector-IV Phase-II, New Shimla. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus for quashing the arbitrary, unreasonable and illegal demand being raised by respondent No.1 as the additional amount of cost of plot in respect of plot/House allotted to the petitioner in the year, 1990 under the 5th Partially self Financing Scheme and as well as for quashing the demand for interest on account of delayed payment of the additional cost and for directing respondent No.1 to refund the excess amount received from the petitioner on account of the cost of the plot area.

3.C.W.P No. 4638 of 2011 Gopal Krishan Goel S/O late Sh. Sant Ram Goel, Plot No. 510, Type- B Sector-IV New Shimla-171009. Versus .. Petitioner. 3 Himachal Pradesh Housing and Urban Development Authority,

1. Nigam Vihar, Shimla-171002. Through its CEO-cum-Secretary.

2. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development to the Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus for quashing the arbitrary, unreasonable and illegal demand being raised by respondent No.1 as the additional amount of cost of plot in respect of plot/House allotted to the petitioner in the year, 1990 under the 5th Partially self Financing Scheme and as well as for quashing the demand for interest on account of delayed payment of the additional cost and for directing respondent No.1 to refund the excess amount received from the petitioner on account of the cost of the plot area.

4. CWP No. 4656 of 2011 Anil Gupta S/O Sh. R.P Gupta, Plot No. B-484, Sector-IV Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus for quashing the arbitrary, unreasonable and 4 illegal demand being raised by respondent No.1 as the additional amount of cost of plot in respect of plot/House allotted to the petitioner in the year, 1990 under the 5th Partially self Financing Scheme and as well as for quashing the demand for interest on account of delayed payment of the additional cost and for directing respondent No.1 to refund the excess amount received from the petitioner on account of the cost of the plot area.

5. CWP No. 4660 of 2011 Arvind Kumar Sood S/O Sh. Jagat Ram Sood, Plot No. 200, Type-B Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

6. CWP No. 4667 of 2011 Dr. Gian Chauhan S/O Late Sh. T.R Chauhan, Plot No. A-143, Sector –III, Phase-II, New Shimla-171009. Versus .. Petitioner. 5

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

7. CWP No. 4669 of 2011 R.K Khanna S/O Late Sh. Amar Nath Kanna, Plot No. 450, Type-B, Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter. 6

8. CWP No. 4674 of 2011. Surjit Kaur W/o Sh. J.S. Marjara, Plot No. 483, Type-A, Sector-IV, New Shimla 171 009, Versus .. Petitioner.

9. CWP No. 4738 of 2011. Narinder Kumar Sood S/o Sh. Puran Chand, Plot No. 201, Sector-III, New Shimla 171 009, presently residing at Chandla Niwas, Anand Bhawan Estate, Comely Bank, Shimla 171 003. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. 7 for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

10.CWP No. 4771 of 2011.

1. Dr. Kuldeep Maria S/o late Sh. Khushi Ram Maria, R/o Plot No. D- 442, Lane-16, Sector-IV, Phase-II, New Shimla 171 009,

2. Dr. (Ms.) Asha Maria W/o Dr. Kuldeep Maria, S/o late Sh. Khushi Ram Maria, R/o D-442, Lane-16, Sector-IV, Phase-II, New Shimla-9. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

11.CWP No. 4823 of 2011. Prem Lata Sharma W/o late Sh. Prem Chand Sharma, Plot No. A- 487, Sector-IV, Phase-II, New Shimla 171 009. 8 Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

12.CWP No. 4846 of 2011. Manjuna Sharma W/o Sh. R.P. Gautam, Plot No. 212, Type-B Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the for quashing 9 respondents in the facts and circumstances of the case enumerated hereinafter.

13.CWP No. 4874 of 2011. Tarvinder Kaur Negi W/o late Sh. Roop Singh Negi, Plot No. 162, Type-B Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

14.CWP No. 4943 of 2011. Ashok Chauhan S/o Sh. H.S. Chauhan, House No. 458, Type-B, Sector-IV, Phase-II, new Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. 10 ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

15.CWP No. 4949 of 2011. Mangal Sain S/o Sh. Pandit Harsaran Dass, Plot No. 82, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

16. CWP No. 4968 of 2011. Ajay Chauhan, S/o Sh. H.S. Chauhan, House No. 457, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner. 11

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

17. CWP No. 4969 of 2011. Partap Chand Sharma S/o Sh. Ram Saran, Plot/House no. 489, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter. 12

18. CWP No. 5159 of 2011. Tarsem Lal S/o Sh. Achroo Ram, House/Plot No. 476, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

19. CWP No. 5160 of 2011. M.L. Gupta S/o Sh. Hem Kund Gupta, Plot No. 475, Type-B, Sector- IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. 13 for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

20. CWP No. 5161 of 2011. Sarwan Singh S/o late Sh. Mohan Singh, House/Plot No. 177, Type- B, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

21. CWP No. 5162 of 2011. Dr. J.K. Sharma S/o Sh. Matidhar Sharma, Plot No. 90/1, Type-B, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner. 14

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

22. CWP No. 5163 of 2011. Dr. Shilpi Sood W/o Sh. Dr. Anurag Sood, House No. A-98, Type-A, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter. 15

23. CWP No. 5164 of 2011. Satish Kumar Sharma S/o late Sh. Ram Rattan Sharma, House No. 164, Type-B, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

24. CWP No. 5277 of 2011. Hira Mani Sharma S/o late Sh. Nikoo Ram Sharma, House No. 454/1, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. 16 for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

25. CWP No. 5278 of 2011. Bhupender Pal Gupta S/o Sh. Gurdev Ram, Plot/House No. 488, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

26. CWP No. 5279 of 2011. Suneel Kumar Angra S/o Sh. Shanti Lal, House/Plot No. 419/1, Type-B, Sector-III, Phase-II, New Shimla 171 009. Versus .. Petitioner. 17

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

27. CWP No. 5280 of 2011. R.S. Kochhar S/o late Sardar Jaswant Kochhar, House/Plot No. 432, Type-B, Sector-IV, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter. 18

28. CWP No. 5281 of 2011. Brahm Dutt Kashyap S/o late Sh. Devi Saran, Plot No. A-130, Sector- III, Phase-II, New Shimla 171 009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

29. CWP No. 5282 of 2011. Arun Kumar Katara S/o Sh. Partap Singh Katara, Plot/House No. 150, Type-A, Sector-III, Type-II, New Shimla 171 009, through General Power of Attorney, Sh. Vijay Kumar Sood S/o late Sh. D.R. Sood, R/o House No. A-129, Sector-III, New Shimla Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. 19 for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

30.CWP No. 6355 of 2011-G A.K Vashisht S/O Sh.P.N Vashisht, House/Plot No. 723, Type-B Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

31. CWP No. 6356 of 2011-G Dr. Randhir Singh Chauhan S/O Sh. Salig Ram, House/Plot No. 146 Type-A, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner. 20

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

32. CWP No. 6357 of 2011-G

Shri. Harish Chandra Joshi S/O Sh. Amba Dutt Joshi, Plot No. 87, Type-B, Sector-III New Shimla-171001. Versus .. Petitioner.

3. Mrs. Swatanter Joshi W/O Sh. Harish Chander Joshi, Plot No. 87, Type-B, Sector-III, New Shimla-171001. Proforma respondent CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised for quashing 21 by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

33.CWP No. 6358 of 2011-G Kamaljit Singh Jaswal S/O Sh. N.R Dogra, Plot/House No. 110, Type- B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

34.CWP No. 6363 of 2011-G O.P Bhatta S/O Sh. Brij Lal Bhatta, House/Plot No. 443, Type-B, Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

1. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. 22

35. CWP No. 6364 of 2011-G Dr. Ravi Kant Dogra S/O Sh. Kanti Dogra, House/Plot No. 232, Type- B Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

36. CWP No. 6365 of 2011-G 23 Ashwani Kumar Arora S/O Sh. Trilok Nath Arora House/Plot No. 165, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

37. CWP No. 6366 of 2011-G Meena Sood, W/O Sh. Shashi Kumar Sood, Plot/House No. 211, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus for quashing 24 unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

38. CWP No. 6477 of 2011-G Lakh Pal Singh Dhaulta S/O Sh. Kuldeep Dhaulta, Plot No. 215, Type-B Sector III Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

39. CWP No. 6482 of 2011-G Anita Vaidya D/O sh. B.C Vaidya, House/Plot No. 451, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

1. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. 25

40. CWP No. 6483 of 2011-G Surinder Chauhan S/O Sh. Sharda Nand, House/Plot No. 104, Type- A, Sector-III, Phase-II, New Shimla-17109. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

41. CWP No. 6484 of 2011-G 26 Neera Walia W/O Sh. Chander Mohan Walia, House/Plot No. 709, Type-C, Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

42. CWP No. 6485 of 2011-G O.P Agarwal, S/O Late Sh. Nanak Chand Agarwal, House/Plot No. 165, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus for quashing 27 unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

43. CWP No. 6486 of 2011-G Kameshwar Kant Gupta, S/O Sh. S.L Gupta, Plot/House No. 452/1, Type-B, Sector-IV, Phase-II, New Shimla 171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

44. CWP No. 6489 of 2011-G Naresh Kumar Kashyap S/O Late Sh. Anant Ram, House No. 236, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

1. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. 28

45. CWP No. 6490 of 2011-G Manohar Lal Bhagra S/O Sh. Kishore Lal, Plot/House NO. D-436, Sector-IV, Phase-II, New Shimla-171009. Versus . Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

46. CWP No. 6491 of 2011-G 29 Vikas Bhushan Lalit S/O Sh. Bhagwan Dass, Plot/House NO. 186, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

47. CWP No. 6673 of 2011-G N.K Kashyap S/O Late Sh. V.R Kashyap, Plot/House 148, Type-A Sector III Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus for quashing 30 unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

48. CWP No. 11257 of 2011-F Krishan Pal Thakur, S/O Sh. Niram Dass Thakur, House/Plot No. A- 141, Type-A Sector-III, Phase-II, new Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

49. CWP No. 11258 of 2011-F Dr. Ajay Sood S/O Sh. Vijay Kumar Sood, House/Plot No. 132, Type- B Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

1. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. 31

50.CWP No. 11261 of 2011-G Kamlender Kanga S/O Sh. Prahlad Bhagat, House /Plot No. 725, Type-D, Sector-IV, Phase-II, New SDhimla-171009 Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

51. CWP No. 11353 of 2011-F 32 Bidhi Chand Pardesi S/O Sh. Raghunath, House/Plot No. 480, Type- A, Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

52. CWP No. 11354 of 2011-F Reeta Chauhan D/O Sh. Hardyal Chauhan, House/Plot No. 437, Type-B Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of the arbitrary, Mandamus for quashing 33 unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

53.CWP No. 11357 of 2011-F Shashi Chauhan W/O Late Sh. Prabhat Chauhan, House/Plot No. 434, Type-B, Sector-IV, Phase-II, New Shimla-171009. Versus .. Petitioner.

2. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter.

54.CWP No. 11650 of 2011-E Arun Kumar Pandey S/o Dr. K. P. Pandey, Plot/House No. 199, Type-B, Sector-III, Phase-II, New Shimla-171009. Versus .. Petitioner.

1. Himachal Pradesh Housing and Urban Development Authority, Nigam Vihar, Shimla-171002. Through its CEO- cum-Secretary. 34

2. The State of Himachal Pradesh through the Principal Secretary, Housing and Urban Development Government of Himachal Pradesh, Shimla-2. ..Respondents. for quashing CIVIL WRIT PETITION under Article 226 of the Constitution of India for issuance of a writ of certiorari as well as a writ of Mandamus the arbitrary, unreasonable and illegal demand being raised by respondent No.1 , and for issuance of an appropriate writ, order or direction to the respondents in the facts and circumstances of the case enumerated hereinafter. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the petitioner(s) : Mr. Vinay Kuthiala, counsel, for the petitioner(s). For the respondents : Mr. Bhupinder Gupta, Sr. Advocate with Mr. Janesh Gupta, Mr. Dinesh Thakur and Mr. S. C. Sharma, Advocates, for respondent No. 1/HIMUDA. Mr. Ram Murti Bisht, Dy. Advocate General with Mr. Vinod Thakur, Dy. A.G. for the respondent No. 2/State. Justice Sanjay Karol, J. (Oral) In all these petitions facts are similar and questions of law same. Hence they are being disposed of by a common judgment. With the consent of parties, CWP No. 3206 of 2011 was taken up for hearing. Whether reports of Local Papers may be allowed to see the judgment? Yes. 35

2. With the enactment of the H.P. Town and Country Planning Act, 1977 (hereinafter referred to as the “Planning Act”), by virtue of its powers under Section 42-A, the Government of Himachal Pradesh constituted an authority by the name of Shimla Development Authority (hereinafter referred to as the “SADA”). The object and purpose of enactment was to make provision for planning, development and use of land and also to make provision for the compulsory acquisition of land required for the purposes of development plans and for purposes connected with such matters. The Act empowered the authority to prepare a scheme of planned development. The town development scheme empowered the authority to make provision for acquisition, development and sale of land for the purposes of town expansion. Disposal of the land was to be regulated. It is not in dispute that this authority was dissolved on

14.11.1994 and in its place another authority by the name of Himachal Pradesh Nagar Vikas Pradhikaran (hereinafter referred to as “Pradhikaran”) was established, which also was dissolved on

9.11.2000 and another authority by the name of Himachal Pradesh Housing Board (hereinafter referred to as the “Board”) was constituted. This was done under the provisions of the Himachal Pradesh Housing Board Act, 1972 (hereinafter referred to as the “Housing Board Act”). The Government repealed the “Housing Board Act” and in its place brought in the Himachal Pradesh Housing and Urban Development Authority Act, 2004 (hereinafter referred to as the “Housing and Urban Development Act”). Thus the “Board” was 36 also abolished and another authority by the name of Himachal Pradesh Housing and Urban Development Authority (hereinafter referred to as the “HIMUDA”-Respondent No. 1) was established.

3. There is no dispute that assets, liabilities and all contractual obligations, representations and promises made by and on behalf of “SADA”, “Pradhikaran”, “Board” were ultimately taken over by and statutorily required to be discharged by “HIMUDA”.

4. In the year 1989 “SADA” announced the 5th Partially Self Financing Scheme and 6th Self Finance Scheme for construction of residential houses in Shimla. Brochure (Annexure P-1) was issued. Applications from General Public were invited, which were to be submitted on or before 30.11.1989. Original petitioners/their predecessor-in-interest / acknowledged purchasers / transferees (also referred to as petitioners) applied for the same. It is not in dispute that “SADA” allotted plots in favour of petitioners/allottees in the year 1990. In terms of brochure/scheme petitioners also made payments. On 10.1.1994 petitioners were informed that cost of land is likely to be increased by 70%. They also made payments towards such escalated amounts demanded by “SADA”. Thereafter in the year 1996/1997 lease deeds were also executed in favour of the allottees/petitioners. At that time all amounts, due and payable by the allottees, were also recovered. Thereafter possession of the plots were handed over to the allottees/petitioners who raised construction, within the stipulated period of time. Vide letter dated

10.6.2008 (Annexure P-10), HIMUDA again raised a demand of a 37 sum of ` 74,478/- towards additional cost of land “incurred on account of enhanced compensation awarded by various Courts”. This amount was calculated on the basis of area of plot @ ` 613 per sq. mtr. This was protested by the allottees/petitioners who formed a Residents Welfare Association (hereinafter referred to as the “Association”) and got the body registered under the provisions of Himachal Pradesh Societies Registration Act, 2006. Association took up the issue with HIMUDA orally and sending letters dated

12.5.2008 and 16.6.2008 (Annexures P-11 and P-12), to which HIMUDA responded vide letter dated 16.7.2008 (Annexure P-8), rejecting this contentions. Thereafter “Association” issued legal notice dated 20.8.2008 (Annexure P-15). Since issues could not be resolved, some of the allottees filed Civil Suit No. 16 of 2009, titled as Dr. Arvind Sood and others versus Himachal Pradesh Housing and Urban Development Authority, which was dismissed by this Court in terms of judgment and decree dated 19.11.2009 (Annexure P-16), operative portion of which reads as under:- “Consequently, it is held that the suits are not maintainable and are bad for mis-joinder or plaintiffs and causes of action and have also not been properly valued for the purposes of court fees and jurisdiction. The plaints are accordingly rejected as being not maintainable. It is however, clarified that the rejection of the plaints will not in any manner affect the rights of any of the plaintiffs in case they file separate suits for redressal of their grievances.” 38

5. Thereafter allottees filed separate Civil Writ Petitions before this Court. Vide common judgment dated 15.6.2010 passed in CWP No. 2177 of 2010, titled as Dr. Shilpa Sood versus HIMUDA & others, and other connected matters (Annexure P-17), these petitions were disposed of. For adjudication of the present petitions, reproduction of the said judgment, in toto, would be beneficial. It reads as under:- “These cases pertain to certain disputes with regard to fixation of land value in respect of the land acquired and given to the petitioners. We have already considered similar cases leading to judgment dated 19.5.2010 and text of the judgment reads as follows:- “The petitioners have come up before this court with aimple 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 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 39 petitioners. According to the petitioners, what the Authority has now proposed is just 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.

2. Learned counsel appearing on behalf of the Authority on the other hand contends that the Writ Petitions are not maintainable and if at all the petitioners have any grievance left, is a proper procedure contemplated under 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 misjoinder of parties and liberty having been reserved to file proper suits, the petitioners cannot take resort to this extraordinary 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 the amounts respect of the enhanced compensation granted by the superior Courts, they cannot now turn around and contend that the levy is impermissible.

3. 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 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 reference Court and the superior Courts. It is also to be 40 noted that they do not dispute their liability to bear such additional expenses. Their grievance is simple and straight – the Authority has not so far fixed the value of the land acquired, developed and transferred to the allottees. Learned counsel for the 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.

4. 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 ‘cost of land’. 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 is 41 the time for the Authority to fix the land value. Without such an exercise, there is no point in levying the 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 the amenities, administrative expenses etc.

5. 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 Accountants nominated by the respondent-Authority or the Chief Executive Officers and make an endeavour to settle the accounts, as above. 42

6. 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.”

2. The learned counsel for the petitioners apprehend that the amounts already paid by them 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. These writ petitions are disposed of in terms of the judgment extracted above and with the further clarification as above.” [Emphasis supplied]

6. Pursuant to the directions issued by this Court series of meetings took place between the team of Chartered Accountants of the Association/petitioners and HIMUDA. Parties met on 16.8.2010,

30.8.2010 and 8.9.2010. On 14.9.2010 HIMUDA supplied copy of the final costing (Annexure P-19) of Sectors 3 and 4 of New Shimla to the Chartered Accounts of the petitioners who responded to the same in terms of objections dated 17.9.2010, but in terms of letter dated 15.1.2011, same were rejected. As such, allottees are now required to deposit the entire amount as demanded by HIMUDA in terms of letter dated 10.6.2008 (Annexure P-10) @ ` 613 per Sq. Mtr.

7. Heard Mr. Vinay Kuthiala, learned counsel for the petitioners and Mr. Bhupinder Gupta, Senior Advocate, assisted by Mr. Janesh Gupta, Mr. Dinesh Thakur and Mr. S. C. Sharma, Advocates, for respondent No. 1/HIMUDA and Mr. R. M. Bisht, Dy. Advocate General with Mr. Vinod Thakur, Dy. Advocate General for respondent No. 2/State. 43

8. Mr. Vinay Kuthiala, has invited my attention to the following decisions of the Apex Court: (i) Indore Development Authority vs. Sadhana Agarwal & Ors. (1995) 3 SCC 1 (ii) Kanpur Development Authority vs. Sheela Devi & Ors. (2003) 12 SCC

9. With some extensive research, I find that there are other decisions of the Apex Court which are more appropriate and relevant to the facts in issue.

10. I shall first deal with the preliminary objection pertaining to the maintainability of these petitions.

11. It is not in dispute that “SADA”, “Pradhikaran”, “Board” and “HIMUDA” are creations of a statute. The object and purpose of “Housing and Urban Development Act” was to create infrastructure to meet with the housing needs of different income groups and to provide for development schemes for mobilizing public and private resources for the promotion of housing colonies and related infrastructure and to provide for creation of appropriate authority and mechanism for planned development of housing colonies. It also cannot be disputed that all the statutes referred to herein earlier were enacted with this avowed object and purpose. The Acts empowered the authorities to levy development fee to recoup the expenditure incurred by it on the amenities provided. It is not in dispute that the schemes in question were floated under the said statutes and with such an object and purpose. 44

12. In view of the judgment dated 15.6.2010 delivered by the Division Bench of this Court, which stands accepted by the parties and as such has attained finality, it is too late in the day for “HIMUDA” to raise such an objection. Notwithstanding such objection, the Division Bench specifically directed “HIMUDA” to make proper fixation of actual value of land, keeping in view the avowed object of providing housing on no profit no loss basis. “HIMUDA” did not object to computation of administrative expenses by a team of experts of Chartered Accountants. Scope of these petitions is thus narrowed down and restricted to the extent of directions issued by the Division Bench of this Court.

13. Be that as it may be, I have independently examined the question of maintainability of these petitions.

14. Question whether a writ petition under Article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentality, by an aggrieved party is no longer res integra.

15. That the respondent is an instrumentality of the State is not in dispute. On the given set of facts, if the State acts in an arbitrary manner even in a matter of contract, an aggrieved party can approach the Court by way of a writ petition and depending upon the facts, court is empowered to grant relief. When the action of the state/its instrumentality is contrary to public good and public interest and unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the 45 constitutional guarantee enshrined under Article 14 of Constitution of India. If there is an obligation in law to act fairly, justly and reasonably to a contract, if the action of the instrumentality is arbitrary and unreasonably so as to violate constitutional mandate of Article 14 or for other valid and legitimate reasons, this court would not be precluded from interfering in the impugned actions of respondents. {Abl International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Ltd. & Ors. (2004) 3 SCC 553 and Noble Resources Ltd. vs. State of Orisssa & anr. (2006) 10 SCC 236}.

16. The Apex Court in Delhi Development Authority & anr. vs. Joint Action Committee Allottee of SFS Flast & Ors. (2008) 2 SCC 672 has also held that in a case of instrumentality of State, provisions of Part III of Constitution of India must be applied. It is the duty of the State to strive hard for giving effect to the Directive Principles of State Policy, as contained in Part IV of Constitution of India. Apex Court was dealing with the case where allotments were made by the Delhi Development Authority, in almost similar circumstances as are in hand. It further held that all actions of the State must satisfy principal requirements of Article 14, viz., treating persons similarly situated equally and grant of equal protection to them. Reasonableness and fairness is the heart and soul of Article 14 of the Constitution of India. Significantly it held that floating a scheme for providing housing facilities to a group of people, although governed by statute, but exercise of such power by an 46 executive not only can be tested on the touchstone of Article 14 of Constitution of India, but can also be tested on the touchstone of source of the power under the statute.

17. Significantly in the very same decision it is held that when a contract emanates from a statute or is otherwise governed by provisions thereof, superior court can also exercise power of judicial review. Although ordinarily Courts would not interfere in the price fixation but then there is no absolute ban in that regard. In a case where fixation of price is required to be made in a particular manner and upon taking into consideration factors prescribed, if price is fixed de hors the statutory provisions, judicial review would be permissible.

18. In the instant case, for the reasons which I shall discuss herein later, I find that demands made by the “HIMUDA” neither arise out of any contractual nor out of any statutory obligation. It is arbitrary, unreasonable, unconscionable and unconstitutional. Hence objection with regard to maintainability of these petitions needs to be rejected.

19. Vide judgment dated 15.6.2010 this Court specifically directed the parties to sit down and compute the amount with regard to (i) acquisition (ii) development (iii) transfer of land. All administrative expenses incurred in this process are to be included under the head “cost of land”. Court specifically held that HIMUDA does not have any commercial motive and transfer of land is to be on no profit no loss basis and since litigations pertaining to acquisition of land have 47 attained finality, final costing of the land value is required to be carried out and amounts recovered from the allottees. While fixing cost of land, cost incurred for developing common area, green area etc and providing other amenities including administrative expenses are to be taken into account. For determining the total amount payable by the allottees, money already paid by them is to be adjusted. It can be argued that even with regard to pricing of land, scope of these petitions is restricted but none the less I have otherwise examined the case on merits.

20. Before I discuss the factual matrix I would like to point out certain decisions rendered by the Apex Court, which to my mind would squarely apply to the instant facts.

21. In Indore Development Authority (supra), Apex Court had an occasion to deal with a case where increase of price on account of escalation was more than 100%. In the given facts, considering that there was no commitment on the part of the Authority to allot houses on fixed amount and that there was increase in the area of flat ultimately allotted, Apex Court upheld the escalation but directed that “it is well known that persons belonging to middle and lower income groups, before registering themselves for such flats, have to take their financial capacity into consideration and in some cases it results in great hardship when the development authorities announce an estimated or approximate cost and deliver the same at twice or thrice of the said amount. The final cost should be proportionate to the approximate or estimated cost mentioned in the 48 offers or agreements. With the high rate of inflation, escalation of the prices of construction materials and labour charges, if the scheme is not ready within the time-frame, then it is not possible to deliver the flats or houses in question at the cost so announced. It will be advisable that before offering the flats to the public such development authorities should fix the estimated cost of the flats taking into consideration the escalation of the cost during the period the scheme is to be completed. The High court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the court, the reasons for such high escalation. We may add that this does not mean that the High court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High court has to be satisfied on the materials on record that the Authority has not acted in an arbitrary or erratic manner”.

22. Further in Kanpur Development Authority (supra), while considering the case where also allotment was made on no loss no profit basis, Apex Court held that pricing/escalation/determination of cost of houses, is to be determined in the light of the scheme and the terms and conditions mentioned in the brochure. But where there is a limit in fixing escalation of cost, normally price may not exceed such limits. It further held that “determination of cost of the house or escalation of cost cannot be arbitrary or erratic and the authority has to broadly satisfy by placing material on record to 49 justify the escalation of cost. Delay by an authority itself would be a factor determining such cost including the unforeseen cause or reason beyond its control.”

23. Further Apex Court in M.P. Housing Board vs. Anil Kumar Khiwani (2005) 10 SCC 796, has held that: 17… … “In a self-financing scheme, pricing is generally based on cost of construction unlike sale of houses after they are completed, in which cases pricing is generally market related.”… … “21. Our observations herein however should not be read to mean that the developer in the- present case has an absolute right to increase the cost of flats initially announced as estimated cost. The final cost should be proportionate to the estimated cost mentioned in the offer keeping in mind the rate of inflation, escalation of the prices of inputs, escalation in the prices of the construction material and labour charges. These factors have got to be taken into account on the basis of the evidence which may be considered at the time of final hearing of the suit.” [Emphasis supplied]

24. Apex Court in Karnataka Industrial Areas Development Board & Anr. vs. Prakash Dal Mill & Ors. (2011) 6 SCC 714, had an occasion to deal with the case where allotments were made by the Karnataka Industrial Areas Development Board. One of the conditions of allotment letter entitled the board to “fix prices” of the premises. The Board, after expiry of period of 11 years of allotment, increased the cost from `40,000/- per acre to `1.08 lacs per bigha which was later on reduced to `0.95 lacs per acre, which action was challenged by the allottees. Board justified the increase by computing the component of future development. On the asking of 50 allottees, High Court of Karnataka quashed the action of the Board and in appeal Apex Court, while affirming the judgment, held that:- “23. The Board being a State within the meaning of Article 12 of the Constitution of India is required to act fairly, reasonably and not arbitrarily or whimsically. The guarantee of equality before law or equal protection of the law, under Article 14 embraces within its realm exercise of discretionary powers by the State. The High Court examined the entire issue on the touchstone of Article 14 of the Constitution of India. It has been observed that the fixation of price done by the Board has violated the Article 14 of the Constitution of India. It is correctly observed that though Clause 7(b) permits the Board to fix the final price of the demised premises, it cannot be said that where the Board arbitrarily or irrationally fixes the final price of the site without any basis, such fixation of the price could bind the lessee. In such circumstances, the Court will have the jurisdiction to annul the decision, upon declaring the same to be void and non-est.

24. A bare perusal of Clause 7(b) would show that it does not lay down any fixed components of final price. Clause 7(b) also does not speak about the power of the Board to revise or alter the tentative price fixed at the time of allotment. The High Court has correctly observed that Clause 7(b) does not contain any guidelines which would ensure that the Board does not act arbitrarily in fixing the final price of demised premises. Since the validity of the aforesaid Clause was not challenged, the High Court has rightly refrained from expressing any opinion thereon.

25. Even though the Clause gives the Board an undefined power to fix the final price, it would have to be exercised in accordance with principle rationality reasonableness. The Board can and is entitled to take into account the final cost of the demised premises in the event of it incurring extra expenditure after the allotment of the site. But in the garb of exercising the power to fix the final price, it can not be permitted to saddle the earlier allottees with the liability of sharing the burden of expenditure by the Board in 51 developing some other sites subsequent to the allotment of the site to the respondents.”

25. In Delhi Development Authority (supra), the Apex Court had an occasion to deal with a case where flats stood allotted under various schemes floated by the Delhi Development Authority (DDA). In the brochure DDA indicated the tentative cost which was subject to revision on account of escalation in the value of land and cost of construction. By an administrative order, DDA added surcharge of 20% over the price worked out as per the formula fixed in the brochure. The same was challenged and the matter eventually landed up before the Full Bench of Delhi High Court for consideration of following questions : (i) Whether the action of the Development Authority levying 20% surcharge from the registrants of the South Delhi is justified ? (ii) Whether demand for payment of current cost as calculated by the Delhi Development Authority from the defaulter registrants could be said to be justified? The same were answered in favour of DDA. However in an appeal, Apex Court held that jurisdiction of DDA, in price fixation is confined only to the factors stipulated in the brochure and offers made. No other/additional factors could be taken into consideration. The terms and conditions of contract no doubt can be altered or modified but not unilaterally, unless there exists any provision either under contract or in law. Novation of a contract, in terms of Section 60 of the Contract Act, must precede the contract making process. Parties 52 must be ad-idem with regard to such terms and conditions. They must be aware of the proposed novation. It further held that definite price is an essential element of binding agreement though a definite price need not be mentioned in the contract but it must be worked out on some premise based on terms of the agreement. A contract must be construed so as to lead to a conclusion that parties understood the meaning thereof. It cannot be left to be vague or indefinite. The Court also repelled argument raised by DDA that imposition of surcharge was in exercise of the regulatory powers framed under the statute by making the following observations: “Strong reliance has been placed upon the residuary power conferred upon the Authority to determine the cost of construction. When the same is done having regard to the relevant factors on the basis of which brochure as well as the notice inviting tender was issued, the superior courts may not interfere; but the same must be done in terms of the original contract and not de hors the same. The authority, even while exercising its residuary power, is required to act within the four corners of the contract. While doing so, the terms of the contract cannot be altered to include any other factors which were contemplated thereunder. While computing the extra cost, no additional factor, thus, can be taken into consideration. If such a power is conceded in the authority, the same would give rise to exercise of arbitrary power. It is not contemplated in law. When construing a provision delegates a power on an authority under a statute, the constitutional provisions must be kept in mind”. Also 53 DDA tried to justify its escalation on the ground that surcharge over and above the disposal price was on account of “equalization charges” purporting to provide subsidy for construction of flat for weaker sections of the society. This contention was also repelled.

26. In the instant case scheme floated by SADA for construction of residential complex is on self financing basis. Applications were invited in the year 1989 and allotments made in the year 1990. Brochure (Annexure P-1) lays down salient features of the Scheme. Clause 4 of the brochure, extracted herein below, indicates cost of different categories of plots. “ Particular Nos. Plot (Sqm) Plinth (Sqm) Cost in Rs. Earnest in Rs. accommodation Amount payable allotment in Rs Amount payable 30 monthly instalments

90.00 Type-B C. Developed Plots 24 Type-A Nos. 25 Nos. 6 Nos. 5 Nos.

120.00

200.00

250.00 Type-D Type-C -- -- -- -- 72,000 18,000 18,000 2,000 96,000 23,700 23,700 2,700 18 Within months -do- 1,60,000 39,950 39,950 4,450 2,00,000 50,050 50,050, 5,550 -do- -do- Note: (1) In some cases, actual size of plot may vary as per site condition than indicated. However, the payment, shall be effected as per actual area of plots for which the possession shall be handed over. Shimla Development Authority reserves the rights to change cost (2) depending upon actual cost of construction, escalation in cost of land, material, labour or for any other unforeseen reasons. The manner in which the revised cost will be payable shall be determined by the Shimla Development Authority.” [Emphasis Supplied]

27. It is thus quite apparent that cost of the land was fixed, with a rider contained in Note (2). Payments other than earnest money and amount payable at the time of allotment, to be paid in 30 monthly instalments. Note (2) only indicates that cost could change 54 “depending upon the actual cost of construction, escalation in cost of land, material, labour or for any other unforeseen reasons”.

28. Since Scheme was structured on self financing basis, Clause 7(iv) of the brochure, by contractual obligation made it mandatory for the allottees to clear the dues before the due dates, failing which “SADA” was authorized to recover the same alongwith interest @ 18% per annum, which in the year 1989 was quite heavy. Not only that, failure on part of the allottees, to clear the arrears, entailed serious penal consequences of cancellation of allotment and forefeature of amounts already paid. Additionally in terms of clause 9 of the brochure, allottees were required to pay ground rent and till the time common services were actually taken over by the Municipal Corporation or other local agency, annual maintenance @ 1% of the cost of the flat/house was to be paid.

29. Further lease deed as stipulated in Clause 11(vi) was to be executed between the parties only “after the recovery of full cost of the property including the amount of interest” and in terms of Clause 11(vii), possession could be handed over to the allottees only upon receipt of dues, documents and fulfillment of conditions stipulated in the allotment letter.

30. It is not the case of “HIMUDA” that any one of the conditions stipulated in the brochure stands breached by the petitioners. Whether petitioners failed to fulfill this contractual obligation by depositing the amounts in terms of brochure or whether any interest in terms thereof was levied and paid or not is a question which has 55 neither been agitated nor considered. Hence at this juncture it is clarified that I have not gone into these aspects of the matter and if the allottees/petitioners are otherwise obliged to pay interest in terms of the brochure or required to take any other steps, in terms of their contractual/statutory obligations, it shall be open for “HIMUDA” to take appropriate action in that regard, in accordance with law.

31. For the benefit of HIMUDA I must take note of two letters written by them to all the allottees, explaining the position with regard to the time frame for completing the scheme and its final costing. Vide letter dated 29.12.1993 (Annexure P-4) allottees were informed that there was no specific time frame for completing the scheme and cost would be worked out “depending upon the actual cost of construction and escalation”. But in the very same letter respondents reiterated that it would be worked out on “no profit no loss basis”.

32. Also vide letter dated 10.1.1994 (Annexure P-3) petitioner was informed that there is likelihood of overrun of cost to the extent of 70%. The allottees were informed that “… … The organization had made arrangement for the balance funds required for the completion as per the estimated cost but the financial gap on account of increase in the cost of the units remains un-covered and it has become difficult to keep the pace of progress due to financial constraints. Further due to enhanced prices the amount of the instalments required to be paid by you will also to be abnormally 56 high in case the entire amount is proposed to be recovered after handing over of the possession and at the same time you will have to bear the additional burden on account of interest on Banks’ loan at the rate of 20 to 24% which the Shimla Development Authority will be paying. It is, therefore, proposed that a part of increase in the cost of the units should be recovered from you before handing over of the possession in instalments. The units are likely to be completed by the end of 1995 and as such the increase in price will have to be recovered in about 30 instalments. The unit wise instalments have been worked out and it is requested that you may start making payment of the first instalment w.e.f. 9th Feb. 94. Plots Category Tentative Revised Escalation Cost (in Rs) tentative (in Rs.) Amount Monthly to be rate of Cost (in Rs) recovered in instalment 30 monthly instalments in Rs. Plot B 120 sq.m. 96,000/- 1,92,000/- 96,000 72,900/- 2430/- Since it is self financing scheme the entire cost of the unit is required to be deposited before taking over possession.”

33. Noticeably by this date the authorities had taken into account not only the cost of the land, including the enhanced compensation but also the amount payable as interest on the sums borrowed, if any, by HIMUDA for completing the scheme.

34. In the instant case, lease deed (Annexure P-5) was executed between the parties on 11.4.1996 after receipt of total premium of ` 2,27,205/-. Thus with the execution of lease deed all contractual obligations, terms of the brochure, representations and 57 agreements stood fulfilled by the allottee. It is a common case of the parties that similar lease deeds stand executed with respect to all the petitioners. By this date all amounts, except for enhanced compensation for land acquired stood crystallized.

35. However, this lease deed stipulated a further contractual obligation. It contained a clause that premium was tentative and subject to additional premium in the contingencies stipulated under Regulation 26.5 of the Shimla Town & Country Development Authority allotment, management & sale of flats/houses/plots regulations for a Residential Complex in Shimla Planning Area prepared under Section 88 (2)(b) read with Section 60 of the “Planning Act”. Section 60 only empowers the State to regulate the procedure for disposal of the developed land. Regulation 26.5 stipulates that “Notwithstanding any thing contained in the notice inviting applications/brochure of the scheme, when construction of flats/houses/plots is nearing completion and these units are ready for handing over possession, the Authority will determine the cost of the unit. The allottees under the Self Financing Scheme(s) will be required to make payment of the balance cost alongwith the ground rent and any other payment(s) before possession of the unit is handed over and in the case of allottees/hirers under the Partially Self Financing Scheme(s), the balance cost alongwith interest due, will be realized in the specified instalments besides ground rent and other dues; provided that; if necessary, the Authority may revise the construction from time to time on account of enhancement of award 58 land by a Court/Arbitrator or due to other unforeseen contingencies. It shall also determine the manner in which the revised consideration is payable and such determination, both original and revised, shall be final and the allottee or hirer shall be precluded from making complaints or raising objections or setting up any claim in this behalf at any stage; Provided further that if the payment is not made before the stipulated date, an interest at the rate as prescribed in the brochure of the scheme/Allotment letter, will be charged”.

36. Petitioners agony compounds from this stage.

37. It is not in dispute that total land acquired for executing the Scheme is to 193.5 bighas i.e. 1,45,324.10 Sq. Mts. It is also not in dispute that even though total saleable area originally envisaged under the Scheme was 49,500 Sq. Mts. but was later on increased to 74,213.80 Sq. Mts. This perhaps was done to make the project viable and workable. It is also not in dispute that out of this saleable area, total plotted area, allotted to all the allottees is 29950 Sq. Mts.

38. Importantly petitioners do not dispute that there has been over run of cost in the acquisition and development of land. They are ready and willing to pay the actual cost incurred by “HIMUDA”. As against the initial cost of ` 800/- per Sq. Mts. HIMUDA has already recovered @ ` 1415/- per Sq. Mts. as price of the land and now in terms of impugned order, additional demand @ ` 613/- per Sq. Mts. is sought to be recovered. 59

39. In terms of directions of the Division Bench “HIMUDA” has supplied the basis and computation of the demand and final costing which is extracted as under:- “Subject: Costing of PSFS Phase-II, Sector 3-4, BCS, New Shimla. Total land measuring 1,45,400 Sqm. Was purchased during 1989-90, by erstwhile H.P. Nagar Vikas Pradhikaran for raising a 5th Partial Self Financing Scheme and 6th Self Financing Scheme, housing colony below BCS in New Shimla. Land use of the scheme as provided by Sr. Arch.(S) is as under: Land Use:- Land under flats Land under plots Land under houses Commercial Area Police post (L/P) Lions Club DAV School Total: Land use on plinth area basis: 17,939.92 37,144.02 6,845.91 60.05 467.90 300.00 12,456.00 75,213.80. A B C D E Plot Area 17,939.92 6,845.91 37,144.02 Flats House Plot Commercial Area (Shops) Police Post/Lions 13,223.90 Club DAV School

60.05 Plinth Area 32,281.02 3,231.12 --

60.05 -- Total Area Covered: 75,213.80 35,572.19 Raw Land Cost: Original cost during year 1990-91: Rs. 2,29,91,383 Amount paid during year 1991-92: Rs. 55,54,793 Amount paid during year 1995-96 Rs. 1,04,53,824 Total cost paid Rs. 3,90,00,000 Add Interest @ 16.5% upto 3/96: On 2,29,91,383 for 4/91 to 3/96 (5 years): Rs. 1,89,67,891 On 55,54,793 for 4/92 to 3/96 (4 years) : Rs. 36,66,163 60 Total Interest: Rs. 2,26,34,054 Total Cost of Raw Land: Principal Interest Rs. 3,90,00,000 Rs. 2,26,34,054 Add: Admn.Charges @ 10% Rs. 61,63,405 Total: Rs. 6,77,97,459. (A) Per Square Meter Cost of Raw Land: On Plot area basis: Against the total land of 1,45,400 Sqmt. Saleable area covered under Housing/Commercial has been determined 74,213.80 Sq Mts. Hence, for plot area basis the cost of raw land comes out: 67797459 75213.80 = 901.39 OR say Rs. 902/- P.Sq.M. (B) Development Cost P.Sq.M.: 1. Survey and documentation. Division No.-I 2. Expenditure incurred by Division No.-II 3. Expenditure incurred by Division No.-I On roads, railing, parks etc. 4. Sewerage, Division No.-I 5. SOP Elect. Division. SOP Division No-I 6. Plantation, Division No.-I 7. Advertisement, Division No. I TOTAL Add interest on capital investment @ 16.5% for 3 years GRAND TOTAL

6. Rs. 190292 Rs. 21197974 Rs. 25677209 Rs. 6745611 Rs. 2132449 Rs. 1145000 803467 Rs. Rs. 88598 Rs. 57980600 Rs. 28700397 Rs. 8,66,80,997 Per Sqmt Development Expenditure 86680997 = Rs. 1152.46

75213.80 SAY Rs. 1153/-P.Sq.M. (C) Developed Land Cost (A+B) = 902 +1153 = Rs. 2055/- P.Sq.M. (i) Total cost of Developed Land (fresh costing): Rs. 15,45,64,359/- : Rs. 14,85,90,277/- (ii) Cost taken in tentative costing : Rs. 59,74,082/- (ii) Difference (Loss) (D) Enhanced Cost of Land Per Sq.M. as on 31.8.10 Amount paid as on 06/09/07 Amount paid on 20/05/03 Add Litigation Charges Total cost of Enhancement of land Add: Interest on Rs. 8,87,383/-@10% Rs. 4,51,05,852.00 Rs. 8,87,383.00 Rs. 47,850.00 Rs. 4,60,51,085.00 61 from 6/03 to 8/10 (86 Months): Interest on Rs. 4,51,05,852/-@ 10% from 10/07 to 8/10 (34 months): Total: Rs. 6,35,956.00 Rs. 1,27,79,991.00 Rs. 5,94,67,032.00 Cost per Sq.M.=59467032/75213.80=790.63 or sayRs791/-P.Sq.M. Enhanced cost for plots /Houses Enhanced cost for flats on Plinth Area Basis: 791x17939.92/32281.02=439.59 or say Rs. 440.00 Per Sq.M.” Rs. 791.00 Per Sq. M. :

40. Except for component of interest towards cost of land amounting to ` 2,26,34,054/-, computed by HIMUDA @ 16.5 % from April, 1991 up to March, 1996, for a period of nine years and interest on the cost of development amounting to ` 2,87,00,397/- @

16.5 % for a period of three years, petitioners have no serious objection to the calculation and computation of other amounts. Petitioners admit there liability towards cost of land, including enhanced compensation, interest payable thereupon and actual cost of development incurred by the respondents. Petitioners also admit that administrative charges @ 10% on both these components is acceptable to them. Thus main objection is narrowed down only to addition of amounts towards interest, i.e. `2,26,34,054/- + `2,87,00,397/- , amounting to `5,13,34,451/-.

41. I may clarify that petitioners are also claiming adjustments towards other conversion charges, payments received and interest accrued and earned by HIMUDA. Additionally it is urged that grand- in-aid was also received by HIMUDA from the State for development of the project. I have not gone into these questions. This takes us into complex factual matrix determination of which in these 62 proceedings may not be possible. From whom, when and how much money was recovered and invested and whether such grants were confined only for the scheme in question or with respect to other schemes undertaken by the authorities throughout the State is not clear.

42. Petitioners submit that in any event, this amount is to be paid, on pro rata basis by the allottees of total saleable area i.e. 74,213.80 Sq. Mts. and not the area specifically utilized for plotted area which is 29950 Sq.Mts., though HIMUDA is trying to justify the same on the ground that cost of internal development was specifically done for development of plots hence such allottees are liable to pay the enhanced cost towards development.

43. Now what is the basis for recovering the enhanced cost of the whole project only from allottees of the plots? After all development of common area i.e. parks, roads and common amenities such as sewerage, water and electricity is with respect to the entire area of the project. Also enhanced compensation for the acquired land is not restricted to the plotted area. It is qua the entire acquired land. There is thus no justification for recovering the enhanced cost only from allottees of the plots. Also SADA/ Housing Board/ Pradhikaran/HIMUDA sold the built up area by computing the entire cost of land including cost of amenities and escalations. It is not their case that such enhanced compensation is not being recovered from such allottees. 63

44. Be that as it may be, according to HIMUDA ` 5,13,34,451/- (`2,26,34,054 plus 2,87,00397) is being recovered as an “opportunity cost” which is “part of direct cost and even in no profit no loss project it has to be included in the project as per the accepted norms of costing”. Now this is totally illegal. It is neither contemplated in the scheme/ brochure/ lease deed nor is there any statutory regulation in this regard. “Actual cost of construction, escalation in cost of land, material, labour or for any other unforeseen reasons” – “escalations” – “Contingencies stipulated under Regularion 26.5” do not envisage levy of such interest. Neither did HIMUDA inform the petitioners/allottees of the same nor did they accept such representations. There was neither any offer nor any acceptance. This unilateral imposition of interest is illegal, unconstitutional, unethical and unconscionable. What authority contractual or statutory to impose such demand has not been disclosed. In fact it is also not in the spirit of the judgment passed by the Division Bench of this Court wherein it has been specifically directed that amounts to be calculated is on no profit no loss basis.

45. Most importantly books maintained by HIMUDA also do not reflect that a sum of `5,13,34,451/- was actually paid by them as interest to third parties. Significantly interest paid by HIMUDA towards cost of the land and development has been specifically charged from the allottees about which there is no dispute. Consequently I find that HIMUDA has failed to explain as to how a 64 sum of Rs. 5,13,34,451/- can be recovered by them from any of the allottees, including the plot holders some of whom are before this Court as petitioners.

46. It is argued by Mr. Bhupinder Gupta, Senior Advocate, learned Counsel for HIMUDA that notional interest is to generate money for administrative charges for unforeseen circumstances. It is not an imaginary cost but incidental in nature. I am afraid contention merits rejection. Administrative charges to the extent of 10% already stand calculated about which there is no dispute. It is further argued that since such amounts had not crystallized and recovered from the allottees, they could not be reflected in the books of accounts. Submission is self defeating. It only shows that no money was actually paid or cost incurred by HIMUDA yet the same is now sought to be recovered. It would be worthwhile noticing that all payments stood paid by the allottees between the years 1989 and 1996-97 and as per Statement Annexure-PX, on amounts recovered by HIMUDA from the allottees, which were invested somewhere else, interest to the extent of 12.38 crores has accrued, which benefit has not been passed over to the allottees.

47. In the instant case, scheme appears to be similar to the one considered by the Apex Court in Delhi Development Authority (supra) and the principles laid down therein squarely apply to the instant case also. There is no restriction to escalation. But then HIMUDA has not placed on record any material to justify demand of interest @ 16.5%. In fact way back in the year 1993, HIMUDA had 65 indicated the estimated cost would be increased by 70%, which amount, on demand stood paid by the allottees at the time of execution of the lease/handing over possession. At that time none of the allottees were informed that component of notional interest would be charged from them. Had such a demand been made, perhaps allottees would have taken some other view, after all scheme itself had certain problems.

48. Mr. Bhupinder Gupta, Senior Advocate, learned Counsel for HIMUDA vehemently argued that since some of the allottees have already paid the disputed amount, it would be inequitable for this Court to interfere at this stage. This contention also merits rejection. Simply because some of the allottees have not challenged the illegal, unethical and constitutional action of the respondents, that fact by itself would not merit dismissal of these petitions. Respondent is a State and not a private developer. Respondents made a promise to allot land on no profit no loss basis under the self financing scheme. It cannot act as an unscrupulous real estate developer and cheat people by raising illegal demands and that too in a clandestine manner. Scheme was floated in the year 1989. Allotment took place in the year 1990. As promised it would have taken SADA three to four years to complete the scheme. Same was not done even till the year 1996-97. Even at the time of signing of lease deed cost overrun to the extent of 70%, including escalation stood recovered from the allottees. There has been delay on part of HIMUDA to complete the scheme and provide all amenities to the allottees. Respondents 66 chose to modify the scheme midway and increase the total saleable area. It not only changed the character of the scheme but commercially benefited out of the same.

49. Thus computation of amount by adding interest is not only illegal but also in violation of directions issued by this Court. The “entire administrative expenses” would not take in its sweep component of “notional interest” since respondents have separately calculated interest payable towards the cost of land and development and also charged administrative charges to the extent of 10% on the entire cost of acquisition of land and development thereof.

50. Hence these petitions need to be allowed. Additional demand raised by “HIMUDA”, in terms of various communications issued in the year 2007-2008, which in the instant case is dated 10.6.2008 (Annexure P-10) is quashed. “HIMUDA” is directed to issue fresh letters of demands to the petitioners in the light of the aforesaid observations. With the aforesaid observations, present petitions stand disposed of, so also the pending application(s), if any. January 9 , 2012 (PK/Rana) (Justice Sanjay Karol), Judge.

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