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Allahabad High Court · body

2008 DIGILAW 2070 (ALL)

Sandeep Developers v. State of U. P.

2008-09-29

SATISH CHANDRA, U.K.DHAON

body2008
JUDGMENT : U.K. Dhaon, Satish Chandra, JJ. Heard Sri U.K. Srivastava, learned Counsel for the Petitioners and Sri J. N. Mathur, learned Additional Advocate General, assisted by Sri K. S. Pawar, for opposite-parties. 2. The Petitioners have alleged that Petitioner No. 1 is a registered partnership firm which has authorised Petitioner No. 2 to file the instant writ petition on its behalf. The Petitioners have further alleged that plot Nos. 24/CP 101 and 24/GH 102 situated at Indira Nagar Colony of U. P., Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as 'Parishad') were auctioned on 30.6.1994 and their bids being the highest were accepted by the Parishad. The Petitioners have further alleged that as there was some confusion with regard to the payment of balance amount of bids, the bids made by the Petitioners for both the plots were cancelled by separate orders dated 15.9.1994 passed by opposite parties 2 to 4. The said orders were challenged by the Petitioners in Writ Petition No. 3802 (MB) of 1994 and Writ Petition No. 3803 (MB) of 1994 and during the pendency of the said writ petitions the Deputy Housing Commissioner issued the order dated 12.7.1995 by which the offers of the Petitioners were revived. The Petitioners have further alleged that between 12.7.1995 and 28.1.1997 several orders were issued by the Parishad and ultimately on 28.1.1997 allotment letters in respect to plot Nos. 24/CP 101 and 24/GH 102 were issued, which also contains the mode of payment of the balance amount, the copies of which have been annexed as Annexures-3 and 4 to the writ petition. The Petitioners have further alleged that as actual area of the plots on spot was less, revised allotment letters dated 8.10.1998 and 17.10.1998 were issued in respect to plot Nos. 24/CP 101 and 24/GH 102, the copies of which have been annexed as Annexures-9 and 10 to the writ petition. The Petitioners have further alleged that in respect to plot No. 24/CP 101 Higher Purchase Agreement was executed between the Petitioners and opposite party No. 4 on 8.10.1998 and in respect of plot No. 24/GH 102 the Higher Purchase Agreement between the parties was executed on 26.10.1998 and as per the Higher Purchase Agreement the date for depositing of first instalment was to start from one year after the completion of the development work. The Petitioners have also alleged that possession of plot No. 24/CP 101 was given on 16.10.1998 and that of plot No. 24/GH 102 was given on 28.10.1998 by the Executive Engineer of the Parishad. 3. The learned Counsel for the Petitioners submits that as the development work was not completed by the Parishad and they were compelling the Petitioners to pay the balance amount with 18% interest, the Petitioners approached to the State Government and thereafter opposite-party No. 1 through communication dated 20.11.2006 directed the opposite party No. 3 that according to the advice of the Law Department the development work will be treated as final only after the completion of road, water, sewer and electrification work of the area. He further submits that in compliance of the communication dated 20.11.2006, the U. P. Avas Evam Vikas Parishad has taken a decision on 4.12.2006, according to which, 7th December, 2002 is the date of completion of electricity work in the area alognwith other development works. Learned Counsel for the Petitioner further submits that upto 29th June, 2002, the Petitioner has deposited Rs. 33,41,603 against 85% of the amount in respect to plot No. 24/CP 101 and a sum of Rs. 16,59,430 was deposited by the Petitioner on 29th June, 2002 in respect to plot No. 24/GH 102 against 85% of the amount and as such the Petitioners are entitled for the interest on the said amount. 4. Sri J. N. Mathur, learned Additional Advocate General, assisted by Sri K. S. Pawar, for the opposite parties submits that the Petitioners were required to deposit 85% of the cost of plots in instalment with 18% interest from the date of allotment as per Clause II of the Hire Purchase Agreement. He further submits that the amount deposited by the Petitioners in accordance with the terms and conditions of the Hire Purchase Agreement has been adjusted against the instalments. He further submits that as the Petitioner could not deposit the entire 85% amount within the time prescribed, the impugned orders dated 30.12.2006 were issued against the Petitioners and there is no illegality in the impugned orders. 5. The learned standing counsel appearing on behalf of the State submits that the State Government after considering the entire matter has sent the letter dated 20.11.2006 to U. P. Avas Evam Vikas Parishad. 6. 5. The learned standing counsel appearing on behalf of the State submits that the State Government after considering the entire matter has sent the letter dated 20.11.2006 to U. P. Avas Evam Vikas Parishad. 6. We have considered the submissions of the learned Counsel for the parties and gone through the record. 7. It is admitted case of the parties that commercial plot No. 24/CP 101 and Group Housing Plot No. 24/GH 102 were allotted to the Petitioners in Indira Nagar Yojna, Lucknow. It is also admitted case of the parties that in pursuance of the allotment letters, a Hire Purchase Agreement was also executed between the parties on 8.10.1998 and 26.10.1998, copies of which have been annexed as Annexures-11 and 12 to the writ petition. It is also admitted case of the parties that before 7.12.2002 the Petitioners have deposited Rs. 33,41,603 against 85% of the balance amount of plot No. 24/CP 101. Similarly in respect to Plot No. 24/GH 102, the Petitioners have deposited 15,59,403 on 29.6.2002 against 85% balance amount. On a representation made by the Petitioners, the State Government has taken a decision which was duly communicated to the U. P. Avas Evam Vikas Parishad on 20.11.2006. The said communication dated 20.11.2006 is as follows : 8. The U. P. Avas Evam Vikas Parishad decided that the electricity work and other works were completed in the area only on 7.12.2002 by its order dated 4.12.2006. The order dated 4.12.2006 is as follows: 9. As per Clause 6 of the allotment letter dated 8.10.1998 and 17.10.1998, the first instalment of the remaining 85% amount shall be payable from the date of completion of the development work or after one year, whichever is later. 10. Section 17 of the U. P. Avas Evam Vikas Parishad Adhiniyam, 1965, provides that housing or improvement schemes shall provide for facilities, namely, construction of roads, streets, lanes, drainage water supply or lighting of the streets, the provisions of schools, community buildings, parks, communication and transport facilities, shops, markets, fuel depots etc. 11. The word "amenity" as defined under the U. P. Urban Planning and Development Act, 1973 includes road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may, by notification in the Gazette specify. 12. 11. The word "amenity" as defined under the U. P. Urban Planning and Development Act, 1973 includes road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may, by notification in the Gazette specify. 12. Similarly under Regulation 5 of the U. P. (Regulation of Building Operations) Act, 1960, the internal development of the land includes-levelling of land, roads, stream water drains, street lighting, water supply, provisions of open spaces for parks, playgrounds, sewerage, open site for schools, dispensaries, community centres and other public utility services. 13. In the instant case, the controversy about the date of the completion of the development work in the area where the plots of the Petitioners are situated has been settled at rest by the Joint Housing Commissioner vide his order dated 4.12.2006 in the light of the directions issued by the State Government by its letter dated 20.11.2006. It is now admitted case of the opposite parties that the development work in the area where the plots of the Petitioners are situated was completed only on 7.12.2006. 14. This Court has come across the cases where the Development Authorities and the U.P. Avas Evam Vikas Parishad are making allotments of the plots/houses without providing even the basic facilities like roads, water supply, sewage disposal, drainage, electricity supply etc. and charging huge amount as interest from the allottees from the date of the allotment of the plots/houses. The U. P. Avas Evam Vikash Parishad and the Development Authorities while floating any scheme shall ensure that before allotment of the plots/houses all the amenity/infrastructural facilities such as roads/lanes, water supply, sewage disposal, drainage, electricity supply etc. are made available, so that an allottee may start the construction work on his/her plot and occupy the house for residential purposes soon after the allotment and possession. The development authorities and the U. P. Avas Evam Vikas Parishad shall be entitled to charge interest from the allottees only after providing amenity/basic facilities like roads, water supply, drainage, electricity supply, street lighting, sewerage, public parks etc., in the area where the plot of the allottee is situated. 15. The development authorities and the U. P. Avas Evam Vikas Parishad shall be entitled to charge interest from the allottees only after providing amenity/basic facilities like roads, water supply, drainage, electricity supply, street lighting, sewerage, public parks etc., in the area where the plot of the allottee is situated. 15. Since the development work in the area where the plots of the Petitioners are situated were completed only on 7.12.2006 as indicated by the Joint Housing Commissioner vide its order dated 4.12.2006, the impugned orders by which the instalments have been fixed with effect from 7.12.2002 and the interest has been claimed is legally not sustainable. 16. In the result, the writ petition succeeds and is allowed. The impugned orders dated 30.12.2006, the copies of which are annexed as Annexures-1 and 2 to the writ petition, are hereby quashed. We therefore, provide that the first instalment of remaining amount of 85% shall be payable from 7.12.2002 alongwith 18% interest. The opposite-parties shall re-fix the 24 instalments with 18% interest with effect from 7.12.2002 when the development work in the area was completed. The amount deposited by the Petitioners subsequent to 7.12.2002 shall also be adjusted by the opposite parties while fixing the remaining instalments. As soon as the entire amount is paid by the Petitioners, the opposite parties shall execute the sale deeds of the plots in favour of the Petitioners. The parties shall bear their own costs.