Punjab-Haryana High Court
Krishan Kumar Sharma vs Estate Officer, Haryana Urban ... on 18 August, 2004
Equivalent citations: AIR2005P&H61, (2004)138PLR876
Author: S.S. Nijjar
Bench: S.S. Nijjar
JUDGMENT S.S. Nijjar, J.
1. In this petition under Articles 226/227 of the Constitution of India, the petitioner challenges the orders of the Estate Officer dated 7.7.1983 and 15.1.1985 directing the petitioner to stop construction on plot No. 34, Sector 14, Gurgaon. The petitioner is owner of the aforesaid plot situated in Urban Estate, Gurgaon (Haryana). The amount due to the respondents has been entirely paid up. The petitioner had purchased the aforesaid plot from the original owner on 25,2.1981 who has been allotted the plot on 1.9.1974. It appears that the original allottee did not construct on the plot in accordance with the allotment letter. He rather sold the plot to the petitioner. The transfer of ownership was approved by the respondents on the condition that the petitioner completes the construction on or before 25.8.1981. After purchasing the plot, the petitioner went abroad and gave power of attorney to his brother namely Baseshar Sharma. Since the power of attorney did not raise construction on the plot, the respondents were constrained to resume the plot by order dated 7.7.1983. The petitioner submitted an appeal against the aforesaid order dated 13.9.1983. He also made an application for condonation of delay. The petitioner sought permission to complete the construction. The respondents issued an order on dated 19.4.1984 granting permission to the petitioner for completion of the construction on the terms and conditions mentioned in the aforesaid letter. Thereafter, the petitioner applied for water connection, which was also sanctioned on 8.6.1984 (Annexure P4), On 15.1,1985, the petitioner was again directed to stop construction forthwith. It was mentioned that the appeal filed by the petitioner was fixed for hearing on 8.5.1984. Since, the petitioner did not appear, it was dismissed for default. Therefore, in view of the earlier order of resumption, the petitioner was directed to stop construction. The petitioner submitted a representation on dated 27.4.1985 stating therein that the construction has virtually been completed, therefore, the petitioner be permitted to complete the construction and order of resumption be set aside. When no action was taken by the respondents, the petitioner filed the present writ petition.
2. Notice of motion was issued in the writ petition. On 30.5.1985, this Court granted an interim order as follows:-
"The learned counsel for the respondents requests for time to enable him to file the written statement. Adjourned to 1lth July, 1985.
The petitioner says that he may be allowed to construct the building at his own risk and responsibility and in case the writ petition is dismissed, he will be bound by the decision subject to right of appeal. In view of the aforesaid undertaking, the counsel for the respondents has no objection in case the petitioner constructs the building. We order accordingly."
3. On the basis of the aforesaid interim order the petitioner has completed the con- struction. The writ petition was admitted on 11.2.1986. Subsequently, the petitioner amended the writ petition to challenge the order dated 15.1.1985.
4. The respondents have filed written statement to the unamended writ petition. In the written statement to the unamended writ petition, the respondents have stated that the plot was resumed on account of non-construction on the plot. The construction which was completed by the petitioner was unauthorised. The transfer in the name of the petitioner was permitted on the condition that the construction would start within six months and be completed within 15 months from the issuance of the letter dated 25.2.1981. Inspite of the repeated reminders, the petitioner did not complete the construction. On 19.11.1982, a show cause notice was issued to the petitioner as to why the plot be not resumed under Section 17(3) of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as 'the HUDA Act'). The petitioner did not reply to the show cause notice. He was, therefore, given another notice to appear for hearing before respondent No.l on 28.6.1983 at 10.00 A.M. Again, the petitioner did not appear. The respondent were left with no option but to resume the plot and the amount of Rs. 2,322/- was also forfeited.
5. Counsel for the Respondents, submits that although the petitioner had filed an appeal on 13.9.1983 but he did not appear on any of the dates which were fixed for hearing. The appeal was, therefore, dismissed in default on 8.5.1984. The resumption order was sent to the petitioner by registered post. Therefore, it is presumed to have been re- ceived by the petitioner. Inspite of knowing that the plot had been resumed, the peti- tioner filed'an application for approval of the building plan. Since the papers regarding the approval of the plan dealt by a separate Branch, the resumption of the plot was not to the knowledge of the branch which sanctioned the plain. Approval of the plan does not confer any right on the petitioner to start construction after resumption of the plot. It is further submitted that the petitioner cannot be permitted to take any advantage of the lapse committed by the officers of the respondents.
6. I have considered the submissions made by the learned counsel for the parties.
7. It is not disputed that the petitioner is a bonafide purchaser of the plot. It is also not disputed that the petitioner has completed the construction on the plot. The only ground for issuing the order of resumption is that the petitioner has not completed the construction within the stipulated maximum period. During the pendency of the petition, the petitioner has completed the construction. In the meantime, no third party rights have come into existence. Rightly or wrongly, the petitioner has been given the impres- sion that the lapse of non-construction within the. stipulated period had been condoned when the plan for construction was sanctioned. By issuing order dated 19.4.1984, the re- spondents had specifically granted permission to the petitioner to continue with the con- struction. The respondents can not now be permitted to cause prejudice to the petitioner for the negligent performance of the duties by its own officers. Having considered the entire matter, I am of the considered opinion that in the interest of justice the lapse of delay in construction on the part of the petitioner deserves to be condoned. Conse- quently, the writ petition is allowed. Orders Annexures P-1 and P-5 are hereby quashed.
No Costs.