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