Punjab-Haryana High Court
Anup Chauhan vs The Financial Commissioner & Secretary ... on 3 October, 2008
Author: Daya Chaudhary
Bench: Uma Nath Singh, Daya Chaudhary
Civil Writ Petition No. 15672 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYNA AT CHANDIGARH.
Civil Writ Petition No.15672 of 2008
Date of decision: 3.10.2008
Anup Chauhan
....Petitioner.
Versus
The Financial Commissioner & Secretary and others.
....Respondents.
CORAM: HONBLE MR.JUSTICE UMA NATH SINGH.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
Present: Mr.Arun Palli, Sr. Advocate with
Mr.Parminder Singh Advocate for
the petitioner.
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DAYA CHAUDHARY, J.
The petitioner has filed this petition for quashing of order dated 13.6.2008 (Annexure P-16) passed by Financial Commissioner whereby the appeal filed by respondents against the order of Administrator, HUDA, Panchkula was allowed and order dated 30.11.2004 (Annexure P-11) passed by Estate Officer, HUDA, was upheld and further for issuance of a direction to the respondents to deliver possession of plot No. 360, Industrial Area, Phase II, Panchkula.
Briefly the facts of the case, as taken from the writ petition, are that Industrial plot No. 360, Phase II, Panchkula, was allotted to petitioner on November 8, 1982. As per terms and conditions of the allotment letter, the petitioner was required to complete the construction Civil Writ Petition No. 15672 of 2008 [2] within two years from the date of offer of possession after getting plans approved from the competent authority in accordance with regulations governing the erection of buildings, but the petitioner failed to raise construction over the plot within the stipulated period. The Estate Officer resumed the plot vide order dated November 30, 2004 in view of the provisions mentioned under Section 17(3) and 17(4) of HUDA Act, 1977. The petitioner filed an appeal before Administrator, HUDA against the order of Estate Officer, which was allowed and order of resumption was set aside vide order dated November 13,2005. The respondents preferred a revision before the Financial Commissioner, which was allowed, and order dated November 30, 2004 passed by Estate Officer was upheld. In compliance of the resumption order passed by respondent-authorities, the respondents served eviction notice under Section 18(1)(B) of the HUDA Act. The petitioner has challenged the aforesaid orders by way of present writ petition.
Mr. Arun Palli, learned Senior Advocate for the petitioner, has argued that although the plot was allotted to the petitioner on November 8, 1982, but possession thereof was not given and the same was given only on March 12,1991. He also argued that the petitioner raised construction up to 25% of the total area of the plot in the year 2000 but the same was collapsed due to storm in 2000 itself. It has further been argued that petitioner has already deposited the entire cost of the plot in time but construction thereof could not be completed within the specified period and for that, he had already deposited extension fee which was demanded by the respondent-authorities from time to time. Once the extension fee from petitioner w.e.f. 1995 to 2006 has been accepted by the respondent- Civil Writ Petition No. 15672 of 2008 [3] authorities, then it amounts to composition of offence for non-construction and the resumption order has wrongly been passed without taking into consideration the fact that he had deposited extension fee. The intention of the petitioner is also clear from his conduct that he has been serious in completing construction and, accordingly, extension fee was deposited. Mr. Palli further argued that the order of eviction Annexure P-18 has been passed without affording the petitioner any opportunity of personal hearing and the same is violative of the principles of natural justice.
Heard learned counsel for parties and perused the pleadings on record.
The plot in question was allotted to the petitioner in 1982 and the possession was also offered in 1989. It is also an admitted fact that building plan was got approved in the year 1995 and DPC certificate was also issued in 1997. The stand taken by learned counsel for petitioner that constructed area was collapsed due to storm, is not convincing as he was not in a position to point out any loss caused by the storm in the adjacent area. As per terms and conditions of allotment and HUDA Rules, the construction was to be completed within a period of 2 years from the date of offer of possession and construction was not completed in spite of the fact that possession was offered in December 1989 and actual physical possession of the plot was taken on March 15, 1991. Not only the possession was taken but also the building plan was also got sanctioned on October 6, 1995 and DPC certificate was issued on January 7, 1997.
Even for the sake of argument that period of two years is counted from the date of issuance of DPC Certificate, then the period of two years was completed in the year 1999 but the resumption order was passed Civil Writ Petition No. 15672 of 2008 [4] 15 years after the offer of possession and petitioner was afforded adequate opportunity. The reasons for non-construction of plot cannot be believed as the order of resumption was passed 22 years after allotment, 15 years after offer of possession and 7 years after issuance of DPC Certificate. The petitioner was never serious in executing the project and violated the terms and conditions of allotment. As per terms and conditions in allotment letter, the plot can be resumed in case of violation of any of these conditions. The terms and conditions at Serial No.18 of allotment letter, reads as under:
"You will have to complete the construction within two years of the date of offer of possession, after getting the plans of the proposed building approved from the competent authority in accordance with the regulations governing the erection of buildings. This time limit is extendable by the Estate Officer if he is satisfied that non construction of the building was due to reasons beyond your control, otherwise this plot is liable to be resumed, and the whole or part of the money paid, if any, in respect of it forfeited in accordance with the provisions of the said Act. You shall not erect any building or make any alteration/addition without prior permission of the Estate Officer. No fragmentation of any land or building shall be permitted."
It is clear from the above said condition that construction was Civil Writ Petition No. 15672 of 2008 [5] to be raised within a period of two years from the date of offer of possession and this period could be extendable by the Estate Officer only if he was satisfied that non-construction of plot was due to reasons beyond the control of the party but nowhere it is the case of the petitioner that the Estate Officer was satisfied with the reasons for not starting construction of the plot by the petitioner. Since petitioner has not started construction in spite of giving opportunity and passing of such a considerable long time, he is not entitled to the relief prayed.
In view of the observations made above and keeping in view the fact that the petitioner has made payment of all instalments and period was extended up to March 2006 for raising construction, the respondent authority shall consider the claim of the petitioner in the light of judgment of the Hon'ble Apex Court reported in M.D.,H.S.I.D.C. and Ors. v. M/s Hari Om Enterprises and another JT 2008 (8) SC 184 subject to condition of depositing maximum penalty and interest permissible under law.
This petition is disposed of accordingly.
(UMA NATH SINGH) (DAYA CHAUDHARY)
JUDGE JUDGE
October 3, 2008.
raghav