Punjab-Haryana High Court
Subhash Chander And Another vs Haryana Urban Development Authority ... on 8 December, 2008
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Civil Writ Petition No. 9840 of 2008
Date of Decision : December 8, 2008.
Subhash Chander and another
...Petitioners
Versus
Haryana Urban Development Authority and another
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Yogesh Goyal, Advocate,
for the petitioners.
Mr. Parvin Gupta, Advocate,
for the respondents.
1. Whether Reporters of local papers may be Yes
allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
Through the instant petition filed under Article 226 of the Constitution the petitioners have prayed for issuance of a direction to the respondents to sanction the building plan submitted by them on 05.12.2007 (Annexure-P-10). A further prayer has also been made for issuance of a direction to the respondents to refund the amount illegally charged by them from the petitioners alongwith C.W.P. No. 9840 of 2008 2 interest.
2. Brief facts of the case are that Shop-cum-flat No. 141, Sector 17, Panchkula was re-allotted to Mrs. Rekha Bhatia, Smt. Ravi Bhatia and Mrs. Vidya Bhatia on 16.12.1988. They have made all due payments. On 08.09.1992, Estate Officer, H.U.D.A.-respondent No. 3, passed an order of resumption on the ground that there has been default in making due payment. Against the order of resumption, an appeal was filed by the petitioners which was dismissed by the Administrator H.U.D.A. vide order dated 28.05.1996. The revision petition filed before the Commissioner, Town and Country Planning Department, was never taken up for hearing or decided.
3. On 23.01.2002, respondent-H.U.D.A. again passed the resumption order which was challenged by the allottee before the Additional Civil Judge (Senior Division), Panchkula. The suit was allowed on 19.11.2005 and the resumption order was set aside. H.U.D.A. filed an appeal before the District Judge, Panchkula, against the order dated 19.11.2005 which was dismissed on 30.01.2006. Thereafter, H.U.D.A. preferred Regular Second Appeal No.2528 of 2006 in this Court which was also dismissed on 05.09.2006. The allottees thereafter filed execution proceedings before the Additional Civil Judge (Senior Division), Panchkula. On 17.02.2007, as H.U.D.A. submitted original 'No Due Certificate' in the Court, the execution application was dismissed as withdrawn having been fully satisfied. The petitioners have claimed that they C.W.P. No. 9840 of 2008 3 had approached the respondents to give them re-allotment letter and also accord sanction to the building plan but the respondents kept on insisting on payment of extension fee for non-construction from the date of allotment till 2007. Having been left with no other option, the petitioners deposited Rs. 3,00,000/- and Rs. 92,000/- on 25.10.2007 and 27.10.2007 respectively on account of extension fee. On 29.10.2007, the respondents issued re-allotment to the petitioners. Then conveyance deed was executed by the petitioners on 07.12.2007. Thereafter, all the documents were completed and the property stood transferred to the petitioners. On 05.12.2007, the petitioners obtained the standard building plan from the respondents. After signing it, they have again approached the respondents for obtaining sanction, however, the same has been refused.
4. The stand of respondents No. 1 to 3 in their written statement is that the petitioners are under obligation to pay extension fee for non-construction of building over the shop-cum-flat amount to Rs. 3,92,000/-. According to them, the building was required to be completed within two years from the date of offer of possession i.e. 15.06.1988 to 14.06.1990. A reference has been made to the policy dated 02.07.2007 (Annexure-P-11) to argue that no extension was to be granted beyond seven years (2+5 years) after offer of possession in respect of those plots where the period of seven years has either expired or would have expired on 31.12.2007 and who have already availed period of seven years on or before 31.12.2007. The matter was reviewed and maximum period of 13 years beyond the stipulated C.W.P. No. 9840 of 2008 4 period of two years has now been provided on payment of prescribed extension fee and the concession given up to 31.12.2007 has also come to an end. The respondents have categorically denied that possession of the shop-cum-flat was handed over to the petitioners on 04.06.1990 without completing the development works. They have referred to Condition No. 6 of the allotment letter dated 15.06.1988 which shows that the development works were completed before the issuance of allotment letter and the present petitioners who are subsequent transferees being the relative, took physical possession on 04.06.1990 and failed to deposit the instalments in time which resulted into resumption of the site on 08.09.1992. The Administrator, H.U.D.A. had dismissed their appeal against the resumption order on 28.05.1996 and no revision petition against the aforesaid order was ever filed. The allegations made in the written statement is that the allottees who have been re-allotted the sites, were instrumental in removing the order of resumption and the appellate order from the file, which had resulted into passing of fresh order of resumption dated 06.05.2002 (23.01.2002?). The respondents have also taken a further stand that pendency of litigation was no bar for getting the building plan approved and construct the building over the site in question. Therefore, the site is liable to be resumed on the ground of non-construction within the stipulated period which expired on 31.12.2007.
5. Having heard the learned counsel for the parties at a considerable length, we find that the order of resumption as per the C.W.P. No. 9840 of 2008 5 findings recorded by the civil court was passed on 23.01.2002 and the same has been held to be illegal on the principal ground that the rate of 18% interest on delayed payment could not have been levied because it was in contravention of the law laid down by Hon'ble the Supreme Court in Roochira Ceramics v. Haryana Urban Development Authority and others, 2001(1) Punjab Law Journal
109. It has been held that the rate of interest can be 10% simple. The resumption order was set aside by the civil court and the subsequent First and Second appeals filed by respondent-H.U.D.A. have also been dismissed. The order dated 05.09.2006 passed in Regular Second Appeal No. 2528 of 2006 (Annexure-P-3) clearly shows the aforementioned factual position. The petitioners, thereafter, filed execution application and the respondent-H.U.D.A. issued 'No Due Certificate' on 17.02.2007 stating that full tentative cost against the above plot has been received and credited to the accounts of the petitioners. It was thereafter, that the petitioners were asked to pay extension fee for non-construction of the site from the date of allotment till 2007. Accordingly, the petitioners have paid a sum of Rs. 3,92,000/- on 25.10.2007 and 27.10.2007 (Annexures-P-6 and P-
7) and the re-allotment letter dated 29.10.2007 has been issued and even Conveyance Deed has been executed on 07.12.2007. The petitioners have also deposited the Malba fee plus the fee for standard building plans on 05.12.2007 and 20.12.2007 and building plan was issued by the respondents (Annexures-P-8, P-9, and P-10). However, the request of the petitioners for sanctioning of building plan has not C.W.P. No. 9840 of 2008 6 been accepted on the ground that the site has not been constructed for more than 15 years, which is the maximum period provided as per policy dated 02.07.2007. It is undisputed that the re-allotment letter was issued on 29.10.2007 and the petitioners could not have raised construction before the aforementioned date as the resumption order dated 23.01.2002 was operating and the same has been set aside by the intervention of the civil court. The policy instructions dated 02.07.2007 would not apply for counting of 15 years from the date of original allotment of 1988. The guidelines dated 02.07.2007 cannot apply retrospectively to the allotment letter issued in the year, 1988. The application of the period of 15 years in accordance with the guidelines dated 02.07.2007, without excluding the period for which the site has remained under resumption, would be wholly unjust and unfair. It is conceded position that the plot of the petitioners was resumed on 23.01.2002 and it could be re-allotted to them only on 29.10.2007. Accordingly, the period from 23.01.2002 to 29.10.2007 is liable to be excluded from counting the period of 15 years. Therefore, the petitioners would obviously be well within time and are entitled to be granted sanction to their building plans. Once the aforesaid legal position emerges for the purposes of granting time for construction then it follows that no extension fee could be charged by virtue of the fact that the petitioners could not have raised construction on the site.
6. For the reasons aforementioned, this petition succeeds to the extent that the respondents cannot refuse to accord sanction to the C.W.P. No. 9840 of 2008 7 site plan submitted by the petitioners by counting the period from the date of original allotment of 1988. The petitioners would be entitled to the benefit of whole period from the date of order of resumption passed on 23.01.2002 till the date of order of re-allotment dated 29.10.2007. Accordingly, the period of 15 years would not expire if the benefit of litigation period of seven years is granted to them. Therefore, we direct that sanction be accorded to the site plan submitted by the petitioners on 05.12.2007 within a period of two months from the date of receipt of a certified copy of this order. However, the petitioner shall be liable to pay extension fee for the same period by calculating the period by excluding the period in the same manner as has been held above.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
December 8, 2008 JUDGE
Paramjit/Pkapoor