R.S.A. No. 4236 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 4236 of 2006 (O&M)
Date of decision: 22.1.2009
K.L. Chawla
....Appellant
Versus
Estate Officer, Haryana Urban Development Authority and another
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. Manu K. Bhandari, Advocate,
for the appellant.
Mr. R.S. Longia, Advocate, for
Mr. Arun Walia, Advocate,
for the respondents.
*****
VINOD K. SHARMA, J (ORAL)
The appellant by way of this regular second appeal has
challenged the judgment and decree 4.1.2006 passed by the learned
lower appellate Court partly decreeing the suit for declaration.
The plaintiff/appellant, is allottee of a residential plot in
pursuance of the allotment letter dated 5.3.1973. He was asked to pay
the extension fee and enhanced price for additional area, allotted to
him.
The plaintiff challenged the demand raised by the
respondent/authority on the plea that the possession in pursuance of
the allotment was given to him only on 19.10.2000, and, therefore, there
R.S.A. No. 4236 of 2006 (O&M)
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was no question of charging extension fee.
It is also the case of the palintiff/appellant that as the
conveyance deed was not given to the appellant/plaintiff, he could not
raise loan for raising construction and, therefore, the demand of
extension fee was bad in law. The challenge was also on the ground
that the demand raised was exhorbitant, and not permissible, as the
allotment was made for the area allotted to him and no additional area
beyond allotment letter stands allotted to him subsequenty.
The learned trial Court decreed the suit as prayed.
Judgment and decree passed by the learned trial Court was
impugned on the ground that the defendant/respondents were entitled
to claim additional charges as the area allotted was in excess. It was
also pleaded that extension fee was to be charged from the date of
allotment.
The learned lower appellate Court partly allowed the appeal
but did not accept the plea of the respondent/defendants qua additional
amount and the judgment and decree.
During the time of arguments, the learned counsel appearing
on behalf of the plaintiff/appellant took a stand that extension fee as
claimed could not be demanded as the possession of the plot was given
only on 9.10.2000 and, thus, the extension fee could be claimed after
permissible period, to be calculated w.e.f. 9.10.2000 i.e. date of handing
over of possession.
Learned lower appellate Court has came to the conclusion
that for the purposes of calculation of extension fee, it is the date of
possession which is material and not the date of allotment.
The learned counsel for the appellant contends that the
learned lower appellate Court committed an error in modifying the
judgment in spite of finding referred to above.
R.S.A. No. 4236 of 2006 (O&M)
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Learned counsel for the appellant states that the substantial
question of law, which arises for consideration of this appeal is:
“Whether the decree granted by the learned lower
appellate Court is contrary to the finding recorded in
the judgment and thus perverse and deserves to be
modified and corrected?”
The contention of the learned counsel for the appellant in
support of the substantial question of law is that once the learned Court
has held that the starting point for claiming extension fee would be date
of possession, there was no justification to permit the defendant to
recover extension fee from 9.10.2000 without excluding the time
permissible for raising construction.
There is force in this contention. As per Act and rules framed
by the respondent, extension fee is chargeable after permissible period
for raising construction. Extension fee is in nature of penalty for not
raising construction as per rules. Thus, the provisions are required to
be strictly construed.
The substantial question of law as framed, deserves to be
answered in favour of appellant. The appeal is partly allowed and the
judgment and decree passed by the learned lower appellate Court is
modified and it is ordered that the respondent would be entitled to
charge extension fee only after 8.10.2002 i.e. period permissible under
the Rules for raising construction, by taking starting point to be
9.10.2000 i.e. date of possession.
Appeal disposed of.
(Vinod K. Sharma)
Judge
January 22, 2009
R.S.