Document Fragment View

Matching Fragments

1. The present appeal has been filed by the defendants who are aggrieved against the concurrent findings of the Courts below whereby the suit for declaration with permanent and mandatory injunction filed by the plaintiff has been decreed.

2. The plaintiff, Smt.Sunita filed a suit for declaration to the effect that the order of resumption passed by the Estate Officer, HUDA, Bhiwani and dispatched to the plaintiff vide endorsement No.1468 dated 03.03.2004 wherein the defendants had resumed the plot No.116 measuring 209.10 Sq.meters situated at Mandi Township, Bhiwani was wrong, illegal, baseless, unreasonable and wholly devoid of the principles of natural justice and for the consequential relief from re-auctioning or re-alloting the plot to the prejudice of the plaintiff and to make a valid offer to the plaintiff in respect of the said plot for construction of a residential house after effecting and certifying complete development work and to credit the interest on all the deposited amount made by the plaintiff in lieu of the price of the plot from the date of deposit till the valid offer of possession. The case of the plaintiff was that by virtue of re-allotment letter dated 29.08.1996 and after making full payment of price, the plaintiff was entitled to a valid offer of possession of the residential plot at Mandi Township, Bhiwani so that it was possible for her to construct the house. It was alleged that letter dated 17.11.1997 for completing the construction of the plot was issued without caring for the ground realities regarding non-completion of development work and non-issuance of a valid offer of possession and without the boundaries being demarcated and basic facilities like road, streetlights, proper sewerage systems, water facility etc. being provided and the fees and penalties in lieu of non-construction on the plot in question was totally wrong, illegal and nonest. The basic principles of natural justice had been violated as the plaintiff had visited the office of the defendants several times but was never replied satisfactorily and was issued show cause notice dated 10.06.2003 under Section 17(3) of the HUDA Act, 1977 to make up the deficiency on papers in the file of the plot in question and the said notice was replied by representation dated 07.07.2003 through her counsel but the same was not replied to and the illegal order of resumption was passed on 03.03.2004 and accordingly, the suit was filed on 18.03.2004.

6. Relief.
4. After taking into consideration the evidence on the record, the trial Court came to the conclusion that the plaintiff had already paid the entire instalments due to the defendants at the time of re-allotment and the plaintiff was not liable to pay the demanded amount on account of non-

completion of the construction on the plot in dispute and the order of resumption was not a valid order. The trial Court, accordingly, taking into consideration the letter of offer of possession which was made to the predecessor-in-interest in the year 1994, took into consideration Exhibit P-9 dated 30.06.1997 which had been issued by the Chief Town Planner, HUDA, Panchkula who had approved the zoning plan and demarcation plan of the residential area of the Mandi Township, Bhiwani. Vide the said letter, the Chief Town Planner, HUDA circulated the approval which had been granted by the Chief Administrator, HUDA and directed that the copies of the approved plan be circulated to all the concerned officers. Accordingly, a finding was recorded that once the demarcation plan and the zoning plan itself had not been approved till 30.06.1997, how HUDA could issue letter of possession to the predecessor-in-interest of the plaintiff on 01.07.1994, Exhibit D3. It was also noticed that Vijender Singh, Clerk who had appeared as DW1 was directed to bring the complete record on 05.06.2006 and thereafter, he had appeared on 05.12.2006 for further cross- examination and had not brought the record on the said date and therefore, the defendants had with-held the best evidence and did not produce the relevant records to prove the fact that the development work had been carried out in the year 1994 and that possession could not be offered to Dhara Chand and accordingly, an adverse inference was drawn against the defendants. On the basis of these findings recorded, the trial Court proceeded with the opinion that the possession of the plot was never validly offered since the development work was not completed, and therefore, the plaintiff was not in a position to raise construction and the order dated 03.03.2004 whereby resumption was ordered, was without proper hearing and the demand of ` 82,376/- on account of dues and an amount of ` 8237/- on account of penalty was wrongly imposed and the plaintiff was not liable to pay the same. Accordingly, the resumption order was set aside and the defendants were held liable to make a valid offer of possession. The relief of interest was declined to the plaintiff and it was held that she was entitled to maintain the suit having a cause of action and direction was thereafter given to execute the conveyance deed as per law vide judgment and decree dated 25.10.2006. The defendants filed an appeal before the lower appellate Court which was dismissed on 18.03.2010 by the Addl.District Judge, Bhiwani and resultantly, the present regular second appeal has been filed.

5. Various submissions have been made with a view to raise a substantial question of law which would warrant interference by this Court. The trump card of the counsel for the appellant was that the suit was barred under Section 50 of the Haryana Urban Development Act, 1977 read with Section 9 Code of Civil Procedure and that there was a specific arbitration clause in the letter of allotment. The said submission regarding the bar of jurisdiction is not sustainable in view of the fact that the authorities have to follow the procedure which is laid down under the Act and in the present case, they have failed to do so and the relief has been rightly granted by the Courts below which could only have been granted by the civil Court after recording evidence and not by the authorities who had, rather than following the procedure prescribed, violated the same brazenly. The specific case of the plaintiff in paragraph No.3 as per the record of the case which was summoned was that there was no valid offer of possession after completion of the development work and passing of the zoning plan and the notice dated 17.11.1997 (Exhibit P8) whereby the allottee was directed to complete the construction of the plot before 31.12.1997 failing which, the plot would be resumed, was without jurisdiction considering the fact that the boundaries had not been demarcated and the basic structures like streetlights, roads, sewerage etc. were not in place. In the reply to the said paragraph, there is no specific denial regarding whether the zoning and demarcation plan have been passed. Paragraph No.3 of the plaint and written statement reads as under:

Paragraph No.3 of the plaint:
"3. That after receiving full payment of price of the plot in question the defendants were duty bound to give a valid offer of possession after completing the development work in the area of M.T.Bhiwani in accordance with terms and conditions of the allotment letter issued by them. But until today no valid offer of possession is given by the defendants to the plaintiff after completing the development work in the area of M.T.Bhiwani thereby frustrating the plan of the plaintiff to construct a house of her dreams. It is worth mention here that the defendants instead of fulfilling their part of contract and compliance of all the conditions precedent contained in the allotment letter, illegally and in a hasty manner issued a letter memo No.3655 dated 17.11.1997 for completing the construction of the plot in question just for the purpose of 'Eye-Wash' on their part without caring for the ground realities such as non completion of work and the passing of Zoning/Demarcation plan etc. in the area of M.T.Bhiwani. It is not understandable for a reasonable man of ordinary prudence as to how a person can start construction of a plot in respect of which boundaries are not demarcated and the basic infrastructural facilities like roads, street lights, proper sewerage system, water facility etc. are not provided and more so no possession is given in respect of the plot in question. But the defendants as a part of their illegal designs issued false memo demanding therein the fees and penalties in lieu of non-construction of the plot in question which action is totally wrong, illegal and virtually nonest and null and void on the part of the defendants and are liable to be recalled immediately as being imposed without giving any effective opportunity of hearing to the plaintiff in her matter, hence the defendants bypassed the basic principles of natural justice while deciding upon the cause of the plaintiff."