Punjab-Haryana High Court
Sandeep Kumar vs Haryana Urban Development Authority ... on 29 January, 2009
Equivalent citations: AIR 2009 (NOC) 1699 (P. & H.)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.W.P. No. 4236 of 2008
Date of Decision: January 29, 2009
Sandeep Kumar
...Petitioner
Versus
Haryana Urban Development Authority and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Kamal Sehgal, Advocate,
for the petitioner.
Mr. Munish Bansal, 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.
The instant petition filed under Article 226 of the Constitution prays for quashing resumption order dated 10.5.2006 (P-8) passed by the Estate Officer, HUDA, Panipat-respondent No. 2; order dated 24.11.2006 (P-10) passed by the Appellate Authority- Administrator, HUDA, Rohtak-respondent No. 4 dismissing the appeal; and order dated 8.2.2008 (P-12) passed by the Revisional Authority-Commissioner and Secretary, Town and Country Planning, Department.
C.W.P. No. 4236 of 2008 2
2. Brief facts of the case are that the petitioner was allotted an industrial Plot No. 386, Sector 25 (Part-II), Panipat, vide allotment letter dated 2.5.2001 (P-1). There was a condition in the allotment letter that possession of the site will be offered on completion of development works of the area. The possession of the plot was handed over to the petitioner by respondent No. 2 on 25.11.2004 (P-2). It is claimed that immediately after taking over possession of the plot, entire amount was paid and a No Due Certificate was issued on 14.3.2005 (P-3). On 4.5.2006, the petitioner informed the Estate Officer, HUDA, Panipat about the change of his address and also supplied a copy of power of attorney executed in favour of Dilbag Singh son of Pal Singh (P-4). On 31.8.2005, the site plan submitted by the petitioner was sanctioned by respondent No. 2 (P-5). After construction upto plinth level, the site was inspected by the officials of HUDA, Panipat and the same was found to be in accordance with the sanctioned site plan. Accordingly a certificate to that effect was issued on 22.9.2005 (P-6). It has been claimed that further construction work beyond DPC level could not be carried on because of some matrimonial dispute in the family of the General Power of Attorney of the petitioner. After culmination of the dispute in the family of Dilbag Singh, GPA of the petitioner, when he went to the site in question to resume construction, it was informed by the neighbourer that the plot in question has been resumed due to non construction. The petitioner immediately approached respondent No. 2 and it was informed vide order dated 10.5.2006 that the plot has been resumed. This was done without affording any opportunity of being heard and without any intimation to the petitioner at his C.W.P. No. 4236 of 2008 3 changed address.
3. The petitioner filed an appeal under Section 17(5) of the Haryana Urban Development Authority Act, 1977 (for brevity, 'the Act') against the resumption order dated 10.5.2006. In the appeal the principal ground taken was that construction upto DPC level was completed and respondents were informed about the changed address and also of the fact of implication of the general power of attorney of the petitioner in a matrimonial dispute. After considering all these facts, the appeal was dismissed on 24.11.2006 on the ground that the petitioner did not raise construction within the stipulated period. Aggrieved against the order dated 24.11.2006 the petitioner preferred a revision petition under Section 30(2) of the Act wherein additional ground of discrimination was also pleaded. The revisional authority dismissed the revision petition on 8.2.2008.
4. In the written statement filed by the respondents preliminary objections have been taken that possession was offered to the petitioner on the date of allotment letter i.e. 2.5.2001 but he failed to take possession immediately and he came forward to take physical possession after a lapse of more than three years for which the respondents were not at fault. As per condition No. 17(1) of the allotment letter, the petitioner was required to start construction within a period of one year from the date of offer of possession i.e. 2.5.2001. It has been asserted that as per terms and conditions of the allotment letter, the industrial unit must go into production after construction of 25% permissible covered area of the plot within a period of three years. There was condition No. 17(3) in the allotment letter that in case of failure to complete the said formalities, the plot is C.W.P. No. 4236 of 2008 4 liable to be resumed. As the petitioner did not comply with the terms and conditions of allotment letter, therefore, respondents issued various notices under the Act to show cause as to why the plot in question should not be resumed. As the petitioner failed to complete the construction within the specified time, the allotment of the plot was rightly cancelled and plot was accordingly resumed. In reply to para 2 of the petition, it is submitted that the appellate authority as well as the revisional authority had passed the impugned orders after affording full opportunities to the petitioner. In reply to para 6 of the petition, it is submitted that the events mentioned therein pertains to his personal and social life which in any way have no connection/concern with the respondents and, therefore, the petitioner cannot escape from his obligation to construct the plot within the specified time. It is also stated that the petitioner was called for personal hearing by respondent No. 2 but he failed to appear personally. The notices issued through registered post were received back undelivered.
5. Mr. Kamal Sehgal, learned counsel for the petitioner has submitted that show cause notices were issued on 21.7.2005 and 9.9.2005, as is evident from the perusal of order dated 10.5.2006. Thereafter, DPC certificate was issued on 22.9.2005 (P-6), which certifies that construction on the plot in dispute has been completed upto plinth level and that measurement at the site have been found as per demarcation/zoning plan of the sector. It was further clarified that the construction upto plinth is in accordance with the sanctioned plan. Learned counsel has maintained that if the show cause notices were to be kept alive then there was hardly any necessity to issue C.W.P. No. 4236 of 2008 5 DPC certificate and, therefore, it follows that the show cause notices must be regarded to have lost their significance and deemed to have been abandoned. Another submission made by the learned counsel is based on clause 17 of the allotment letter and he has argued that the petitioner was required to start construction of the building within a period of one year as per approved building plan from the date of issuance of final letter of allotment/offer of possession. According to the learned counsel, the possession of the plot was handed over to the petitioner by respondent No. 2 on 25.11.2004, as is evident from the perusal of possession certificate dated 25.11.2004 (P-2). Thereafter the petitioner was to start construction of building within a period of one year. He has further highlighted that the unit was required to go into production after constructing minimum 25% of the permissible covered area of plot within a period of three years. The period of three years was yet to expire from the date of possession till 25.11.2004 and the resumption order was passed on 10.5.2006. The permissible covered area was required to be determined as per the provisions of the Act and the Rules framed thereunder. Mr. Sehgal has contended that after delivery of possession on 25.11.2004, the petitioner paid entire amount and No Due Certificate was issued by respondent No. 2 on 14.3.2005 (P-3). Thereafter the petitioner intimated about the change of address alongwith a copy of Power of Attorney to the Estate Officer, HUDA, Panipat on 4.5.2006 (P-4). He has also applied for sanctioning of site plans on 31.8.2005 and had proceeded to start construction, which has come up to the DPC level. The show cause notice issued to the petitioner was sent on the earlier address whereas he has appointed one Shri Dilbag Singh son of Shri C.W.P. No. 4236 of 2008 6 Pal Singh, resident of House No. 150, Eight Marla Colony, Panipat, as his General Power of Attorney in respect of the aforesaid plot, registered on 29.12.2005. A copy of the same was duly sent on 4.5.2006 (P-4) to the Estate Officer, HUDA, Panipat. Therefore, the principles of natural justice stand violated as no show cause notice was served upon him nor any opportunity of hearing was afforded to him.
6. Mr. Sehgal, learned counsel for the petitioner further argued that the resumption orders, in cases where full payment of plot has been made, should be resorted to as last remedy because to remedy the lapse committed by the petitioner on account of delay in raising construction, proportionate amount of penalty could have been imposed by granting extension.
7. The last submission of learned counsel for the petitioner is that hostile discrimination has been practised against the petitioner because in similar facts and circumstances one Ramesh Kapoor had filed an appeal and the Administrator, HUDA, Rohtak, has set aside the resumption order by noticing that the construction work of Ramesh Kapoor was in progress at the time of passing of resumption order and that he was ready to pay extension fee. Accordingly, resumption order was set aside in respect of Plot No. 453, Sector 25, Part-II, Panipat, with the condition that the allottee Ramesh Kapoor would complete construction within a period of six months and start production within a period of one year from passing of that order failing which the order of the Estate Officer, HUDA, resuming the plot, was to spring back in operation (P-13). Similar examples of such concession given by the Administrator, HUDA, Rohtak, are in C.W.P. No. 4236 of 2008 7 the cases of Sarvshri Om Parkash Lakhina (P-14), Lila Dhar (P-15), Shyam Sunder Batra (P-16), Prem Kumar Arora (P-17), Ashok Kumar Chugh (P-18), Anil Kumar (P-19) and Bhim Sain (P-20).
8. Mr. Munish Bansal, learned counsel for the respondents has, however, made one basic submission that offer of possession was made to the petitioner on 2.5.2001 and according to terms and conditions of the allotment letter, the industrial unit was expected to go into production after construction of 25% permissible covered area of plot within a period of three years. He has maintained that the period of three years had expired on 2.5.2004 and, therefore, the resumption order has been rightly passed. According to the learned counsel the basic object of allotting plot to the petitioner was to advance the object of industrialising the area by giving all incentives not as an investment project for the petitioner. He has also raised objection with regard to handing over the plot to a third person by executing a General Power of Attorney by the petitioner in favour of Dilbag Singh.
9 Having heard learned counsel for the parties we are of the considered view that the instant petition deserve to succeed. It would be fruitful to notice clause 17 of the allotment letter, which reads thus:-
"17(i) You will have to start the construction of building within a period of one year as per approved building plan from the issue of the final letter of allotment/offer of possession.
ii) The unit must go into production after constructing minimum 25% of permissible covered area of plot C.W.P. No. 4236 of 2008 8 within a period of Three years. The permissible covered area shall be determined as per the provision of the HUDA Act & Rules.
iii) In case you fail to do this plot is liable to be resumed and the whole or part of money paid if any, in respect of it will be forfeited is (in?) accordance with the rules regulations/industrial policy?"
10. Clause 17 of the allotment letter clearly stipulates that the petitioner was to start construction of building within a period of one year as per the approved building plans from the date of issuance of the final letter of allotment/offer of possession. It is true that letter of allotment was issued to the petitioner on 2.5.2001. It further provide that the unit was to go into production within a period of three years after constructing 25% of the permissible covered area of the plot. It is further pertinent to notice that the possession of the site was to be offered to the petitioner on completion of development works in the area. Clause 6(ii) of the allotment letter is also relevant, which shows that 20% of the rebate equivalent to 20% of the land was to be given if the industrial unit was to start commercial production within three years of the offer of possession. Sub-clause
(ii) of clause 6 of the allotment letter is reproduced hereunder:-
"6(i) xxxxxxx
(ii) Rebate equivalent to 20% of the land will be given if the industrial unit starts commercial production within 3 years of the offer of possession of industrial plot."
11. A perusal of the aforesaid clause would show that the C.W.P. No. 4236 of 2008 9 period of three years fixed by clause 17 is not inflexible as it aims to encourage the industrialisation. It is true that possession of the plot was offered to the petitioner by the allotment letter itself which is evident from clause 25 of the allotment letter, which offer possession of the plot on any working day, although the possession was actually taken by the petitioner on 25.11.2004. However, it does not mean that the petitioner could not have been adjusted by granting him extension for construction of the plot by charging extension fee i.e. the course adopted by the Administrator, HUDA, Rohtak, in large number of cases, which is evident from orders Annexure P-13 to P-
20. According to order dated 25.9.2006 (P-20) passed in the case of Shri Bhim Sain, the building plan was approved on 21.12.2005 and the DPC certificate was not even issued but the plot was resumed on 29.12.2005, whereas in the present case the DPC certificate has been issued on 22.9.2005 after issuance of show cause notices on 21.7.2005 and 9.9.2005. The building plans submitted by the petitioner were sanctioned on 31.8.2005 and the plot was resumed vide order dated 10.5.2006 (P-8). It appears to be highly unreasonable to resume the plot after issuance of DPC certificate. The authority should have followed the same course as has been followed in large number of other cases, which is evident from the perusal of Annexures P-13 to P-20. Accordingly, we are inclined to accept the prayer made by the petitioner for quashing of the resumption order dated 10.5.2006 (P-8) passed by the Estate Officer, order dated 24.11.2006 (P-10) passed by the appellate authority and order dated 8.2.2008 (P-12) passed by the Revisional Authority.
12. The argument of the learned counsel for the HUDA that C.W.P. No. 4236 of 2008 10 three years period has to commence from the date of offer of possession, which is, in fact, the date of issuance of letter of allotment, stricto senso may not be incorrect. However, in the light of the policy adopted by the Administrator, HUDA, Rohtak, of granting extension, such a strict construction of clauses of allotment letter may not be sustainable. Therefore, we are not impressed with the argument raised and has no hesitation to reject the same.
13. As a sequel to the aforesaid discussion, resumption order dated 10.5.2006 (P-8), appellate order dated 24.11.2006 (P-10) and revisional order dated 8.2.2008 (P-12) are hereby quashed and further directions are issued in terms of the policy discernible from various orders annexures P-13 to P-20. Accordingly, the petitioner is granted six months time which shall commence from March 1, 2009. The Estate Officer, HUDA, Panipat-respondent No. 2 shall within 15 days calculate the extension fee, which the petitioner is liable to pay as per rules for delaying the completion of construction. The extension fee shall be paid before 1.3.2009. If the petitioner fails to pay extension fee then the impugned order shall come back in operation.
14. The instant petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
January 29, 2009 JUDGE
okg/Pkapoor