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2013 DIGILAW 588 (PNJ)

Ravinder Garg v. State of Haryana

2013-05-06

AMOL RATTAN SINGH, SATISH KUMAR MITTAL

body2013
JUDGMENT Mr. Satish Kumar Mittal, J.:- The petitioner has filed the instant writ petition under Articles 226 and 227 of the Constitution of India, for quashing of the order dated 6.4.2004 (Annexure P-13) passed by the Estate Officer, Haryana Urban Development Authority, Gurgaon (respondent No.4 herein), whereby the provisional letter of allotment with regard to the industrial plot No. 628, Sector 37, Pace City-II, Gurgaon, issued in favour of the petitioner,had been withdrawn on the ground that the petitioner had not complied with the terms and conditions of the allotment letter; as well as the orders dated 30.8.2005 and 23.4.2010 (Annexures P-15 and P-17) passed by the Administrator, Haryana Urban Development Authority, Gurgaon (respondent No.3 herein); and the Financial Commissioner & Principal Secretary to Government of Haryana, Town and Country Planning Department, Chandigarh (respondent No.1 herein), whereby the appeal and revision, respectively, filed by the petitioner against the aforesaid order have also been dismissed. 2. In the present case, on 28.12.1999, on certain terms and conditions, the petitioner was allotted the plot in question and a provisional letter of allotment, copy of which has been annexed as Annexure P-1, was issued. Those conditions were to be fulfilled within the extended period of one year. As per clause 1 (i) and (ii), there were certain conditions with regard to payment of instalments. The petitioner was to pay 25% of the tentative price of the plot within 30 days and the remaining 75% of the balance amount was to be paid in lump sum within 60 days of the issuance of the provisional letter of allotment without any interest or within a period of 9 months in three instalments with interest at the rate of 18% per annum. In clause 1 (iii), there were certain conditions relating to completion of formalities with regard to setting up of the industry, i.e. (a) obtaining of provisional registration certificate of the unit from the concerned General Manager, Director of Industries Centre; (b) obtaining of provisional approved building plans from the competent authority; and (c) getting the loan sanctioned from the Bank/ Financial Institution, in case the project is partly self financed or fully self financed, the proof of having funds was to be furnished. 3. In this case, the financial obligations imposed vide clause 1 (i) and (ii) were fulfilled, as full payment towards price of the plot was made within the stipulated time. 3. In this case, the financial obligations imposed vide clause 1 (i) and (ii) were fulfilled, as full payment towards price of the plot was made within the stipulated time. As far as the other formalities with regard to setting up of industry are concerned, the unit was got registered with the Director of Industries, Gurgaon, for setting up of the industry, well within the extended time. The proposed building plan along with the requisite fee for sanctioning the same was submitted with the respondents on 27.12.2000, i.e. well within time. On the same day, a letter was written by the petitioner that his unit is not taking any loan from any financial institution, as the petitioner has sufficient funds to run the unit. In this regard, balance sheets of the company were annexed. 4. It is the case of the petitioner that he impressed upon the respondents for sanctioning of the building plan, which was submitted by him, but the same was not sanctioned for want of issuance of regular letter of allotment. On 28.6.2001, for the first time, the Chief Administrator, Haryana Urban Development Authority, Panchkula (respondent No.2 herein) asked the petitioner to submit proof with regard to sanctioning of the building plan and sanction of loan for setting up industry. The petitioner gave detailed reply that he had already submitted an application for sanction of the building plan on 27.12.2000 and the building branch of the respondents are not issuing sanctioned building plan for want of regular letter of allotment. He also informed the respondents that the project which he was proposed to instal is self financed, therefore, no proof of finance was required to be furnished by the petitioner. It was further informed that the petitioner unit was already working and the same will be shifted on the allotted plot immediately after issuance of the regular letter of allotment. 5. It is the case of the petitioner that respondent No.4, without considering all the submissions made by the petitioner and without taking into consideration the factual position, particularly that the petitioner had already paid the entire amount of the plot and complied with all the formalities, has withdrawn the provisional letter of allotment vide order dated 6.4.2004, on the ground that the petitioner had not submitted the sanctioned building plan within the stipulated time. The petitioner filed an appeal against the said order and vide order dated 30.8.2005, the same was dismissed by the Appellate Authority being not maintainable, as withdrawal of the provisional letter of allotment on the ground of non-compliance of the formalities provided therein is not an order passed under Section 17 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as ‘the Act’), as the Chief Administrator has authorised the Administrator to hear and decide the appeal against the order passed by the Estate Officer under Section 17 of the Act. 6. Feeling aggrieved against the said order, the petitioner filed revision petition under Section 30 of the Act for setting aside the order dated 6.4.2004 as well as the order of the Appellate Authority. The revisional authority found that even though against the order of withdrawal, an appeal may not be maintainable, but validity of the said order can be considered in revision filed under Section 30 of the Act. On coming to the said conclusion, the revisional authority heard the revision on merits. After hearing counsel for the parties, the revisional authority came to the conclusion that out of three conditions of the provisional letter of allotment, which were to be complied with within the extended period of one year, two conditions i.e. to obtain provisional registration certificate of the unit from the concerned General Manager, Director of Industries Centre, and to get the loan sanctioned from the Bank/Financial Institution, in case the project is partly self financed or fully self financed, were complied with within the stipulated time. However, with regard to the condition of obtaining provisional approved building plan from the competent authority, it was found that the sanctioned building plan was not submitted within the stipulated time. Therefore, the Estate Officer was justified in withdrawing the provisional letter of allotment. 7. After hearing learned counsel for the parties, we are of the opinion that in the facts and circumstances of the case, respondent No.4 was not justified in withdrawing the provisional letter of allotment issued to the petitioner, on the ground that the petitioner had failed to get the building plan sanctioned from the competent authority within the extended time. In the petition, it has been specifically stated that the petitioner submitted the proposed building plan with the requisite fee to the respondents on 27.12.2000, well within the extended period of one year. In the petition, it has been specifically stated that the petitioner submitted the proposed building plan with the requisite fee to the respondents on 27.12.2000, well within the extended period of one year. It has been further alleged that the said building plan was sanctioned by the concerned officer, but the same was not forwarded by him to the Estate Officer. The concerned authority refused to give proof to the petitioner on the ground that the same will be issued on issuance of the regular letter of allotment. It is not the case of the respondents at all that the proposed building plan submitted by the petitioner well within the extended time was not found in order, or the same was rejected. On the one hand, the respondents are not issuing the letter of sanction of the building plan submitted by the petitioner for want of regular letter of allotment. On the other hand, they are insisting on producing the proof of the sanctioned building plan for issuance of regular letter of allotment. When the show cause notice was issued to the petitioner, he explained his position and stated that all the conditions have been complied with, but respondent No.4, while passing the impugned order of withdrawal of provisional letter of allotment, did not refer to the explanation given by the petitioner for finding the same as unsatisfactory. Not only respondent No.4, but the appellate and the revisional authorities have also not appreciated the facts and circumstances of the case in a just and fair manner. The sanctioning of the building plan was not in the hand of the petitioner. He was required to submit the building plan with the requisite fee within the extended time, which he had done. As per the averments made in the petition, the said building plan was sanctioned, but proof with regard to sanctioning of the building plan was not issued by saying that the same will be issued only when the regular letter of allotment is issued. The petitioner had performed his part of obligation, but the respondents have neither sanctioned the building plan, nor rejected the same. Generally, if the building plan is neither sanctioned nor rejected, then the same is deemed to have been sanctioned. 8. In the present case, the petitioner was made a scapegoat between two branches of the respondents,i.e. the building branch and the allotment branch. Generally, if the building plan is neither sanctioned nor rejected, then the same is deemed to have been sanctioned. 8. In the present case, the petitioner was made a scapegoat between two branches of the respondents,i.e. the building branch and the allotment branch. The building branch was not releasing the sanctioned building plan for want of regular letter of allotment, and the allotment branch was not issuing the regular letter of allotment for want of proof of sanction of the building plan. Such action of two branches of the respondents, which resulted into denial of the legal right of the petitioner, is totally arbitrary and unreasonable. The Estate Officer as well as the revisional authority have not appreciated this aspect of the matter and have completely ignored the fact that the petitioner had already paid the entire price of the plot well within time and had also complied with the other two formalities well within time. In such circumstances, the withdrawal of the provisional letter of allotment for want of proof of sanction of the building plan is not sustainable at all. 9. Learned counsel for the petitioner has also drawn the attention of this court towards Notification of the Industries Department dated 11.11.1999 whereby the Estate Management Procedures were modified and the requirement of sanctioning of provisional building plan was done away with. After the issuance of the said Notification, the procedure of issuing provisional letter of allotment at first instance and issuance of regular letter of allotment after compliance of all the formalities as laid down in the provisional letter of allotment was done away and as per the new policy, the allotment was to be made by issuing the letter of allotment itself. Learned counsel has further drawn attention of this court towards letter dated 30.12.1999 issued by the Chief Administrator, HUDA, Panchkula communicating all the Administrators and the Estate Officers that regulations regarding extension, completion of projects, transfer of plots or sheds, change of project, lease/ rental of industrial plots, bifurcation/fragmentation of plots, resumption of plots, restoration of resumed plots etc., shall be made applicable retrospectively. It has been argued that in view of the aforesaid letter, the petitioner should have been issued the letter of allotment without insisting on the condition with regard to proof of sanctioning of the building plan. It has been argued that in view of the aforesaid letter, the petitioner should have been issued the letter of allotment without insisting on the condition with regard to proof of sanctioning of the building plan. But in the present case, as discussed above, the petitioner had already submitted the building plan along with the requisite fee with the respondents for its approval, well within time. After submission of the building plan with the requisite fee, it was the duty of the respondents to sanction the same within stipulated time and if there was some deficiency in the building plan, then the same should have been pointed out to the petitioner well within time. According to the petitioner, the building plan submitted by him was sanctioned by the respondents, but proof with regard to the same was not issued to him by the building branch of the respondents on the pretext that the same will be issued after issuance of regular letter of allotment. The most important fact is that the averments made by the petitioner in this regard have not been disputed by the respondents in their written statement. In these facts, the action of respondent No.4 in withdrawing the provisional letter of allotment vide order dated 6.4.2004 was not justified at all and the same is not sustainable in the eyes of law. 10. In view of the above, this petition is allowed. Consequently, the orders dated 6.4.2004; 30.8.2005 and 23.4.2010 (Annexures P-13, P-15 and P-17) passed by respondents No.4; 3 and 1, respectively, are set aside, and the respondents are directed to sanction the building plan and issue the regular letter of allotment regarding the plot in question in favour of the petitioner as per rules, within a period of three months from the date of receipt of certified copy of this order. No order as to costs.