Research › Search › Judgment

Punjab High Court · body

2017 DIGILAW 1618 (PNJ)

Subhash Chander v. State of Haryana

2017-07-28

HARINDER SINGH SIDHU, S.J.VAZIFDAR

body2017
JUDGMENT : S.J. VAZIFDAR, J. Respondent No.2 is the Haryana Urban Development Authority through its Estate Officer and respondent No.3 is the Administrator of respondent No.2. The petitioner has sought a writ of certiorari to quash the order dated 09.07.2009 passed by the Estate Officer ordering resumption of a plot allotted to him in the year 1986 and the forfeiture of the amount deposited by him. The petitioner has also challenged the orders dated 15.09.2009 dismissing his appeal. The has further challenged the order of the revisional authority as though the same sets aside the resumption order directs the Estate Officer to charge an extension fee as per a policy dated 12.04.2013. Finally, the petitioner has challenged a demand notice dated 04.12.2014. 2. The petitioner was allotted a residential plot on the terms and conditions contained in the allotment letter dated 01.08.1986. The petitioner had paid the earnest money of 10% but failed to pay any amount thereafter. The acceptance of the allotment was to be accompanied by a further payment of 15% of the total sale consideration. The balance was to be paid in a lumpsum without interest within sixty days of the letter of allotment or in instalments which carried interest at 10% per annum. Clause 7 of the letter provided that the possession of the site would be offered to the petitioner on completion of the development works in the area. The price was subject to enhancement in the cost of land if awarded under the Land Acquisition Act. The failure to pay the amount would make the allottee liable for penalty and resumption. Clause 18 of the letter of allotment reads as under:- “18. You will have to complete the construction within two years of the date of offer of possession, 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. 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.” 3. By a letter dated 06.05.1993, the respondents offered the petitioner possession of the said plot, namely, Plot No.1636 in Sector 55, Faridabad, with effect from 01.04.1993. The petitioner was entitled to take possession personally or through an authorized representative at the time and on the date specified. The letter reiterated that the petitioner would have to complete the construction within the stipulated period failing which the petitioner would have to pay extension fee as per the rate fixed by HUDA. 4. By a further letter dated 29.04.1994, the respondents informed the petitioner that they had decided to change the plot to be allotted to the petitioner. Plot No.1665 was offered in place of the old plot No.1636. The petitioner did not respond to the letter. He raised no objection to the respondents changing the plot for about thirteen years. The respondents were, therefore, entirely justified in assuming that the petitioner had accepted the new plot. 5. By a letter dated 18.03.2003, the respondents served a show cause notice upon the petitioner under section 17(3) of the HUDA Act, 1977. The letter though not produced is referred to in the respondents’ further letter dated 10.06.2009, which we will refer to shortly. The petitioner did not respond to this letter either. It appears that the petitioner, by a letter dated 12.03.2007, requested a change in the plot. This letter, though not on record, is referred to in the respondents’ letter dated 25.06.2007 which rejected the petitioner’s request for a change in the plot. The letter also called upon the petitioner to take possession of plot No.1665/55 on any working day. There was no response from the petitioner in this regard either. 6. By a notice dated 10.06.2009, the respondents stated that they had not received any reply to the earlier notice dated 18.08.2003; that the petitioner had not submitted a plan or an occupation certificate. Despite the same, the petitioner was granted another opportunity of a personal hearing on 19.06.2009. The petitioner, by a letter dated 19.06.2009, merely stated that as the respondents had changed the plot without his approval, he had registered a case in the consumer court which was pending and that he was not putting up any construction on plot No.1636. Despite the same, the petitioner was granted another opportunity of a personal hearing on 19.06.2009. The petitioner, by a letter dated 19.06.2009, merely stated that as the respondents had changed the plot without his approval, he had registered a case in the consumer court which was pending and that he was not putting up any construction on plot No.1636. 7. On 09.07.2009, the Estate Officer passed the resumption order. The petitioner’s appeal was dismissed by an order dated 29.07.2009. The appellate authority rightly observed that the petitioner was clearly unwilling to accept the plot that was allotted to him subsequently and that he was, therefore, not inclined to raise construction thereon either. It was rightly observed that relief in the appeal could not be granted as the petitioner had clearly stated that the plot allotted to him was not acceptable and that the issue was under challenge before the District Consumer Form, Faridabad. The petitioner’s claim over the earlier plot was, however, kept open as the issue was pending before the District Consumer Forum. 8. The Estate Officer rightly passed the resumption order and the appeal was also rightly dismissed. As we noted earlier, the respondents had changed the plot from plot No.1636 to Plot No.1665 and the petitioner was informed of the same by the respondents’ letter dated 29.04.1994. The letter stated that the change was necessitated because of high-tension electric lines and sewerage pumping station at the site and that the change would not affect the location of the plot or the size of the plot. The petitioner did not object to the same for thirteen years. The request for the change was made, at least on record, by the letter dated 12.03.2007 which is referred to in the respondents’ letter dated 25.06.2007. This delay of thirteen years indicates that the petitioner had, in fact, accepted the change in the plot. If he had any objection he ought to have raised the same within a reasonable period of time. Further, in the meantime, the petitioner was also served with a show cause notice dated 18.08.2003. There was no response to the same either. Even after the show cause notice the petitioner did not raise any objection on the ground that the respondents had changed the plot. This, therefore, also indicates the petitioner’s acceptance of a change in the plot and, in any event, his acquiescence thereto. There was no response to the same either. Even after the show cause notice the petitioner did not raise any objection on the ground that the respondents had changed the plot. This, therefore, also indicates the petitioner’s acceptance of a change in the plot and, in any event, his acquiescence thereto. The respondents then served the said show cause notice dated 10.06.2009. The petitioner, by his letter dated 19.06.2009, stated that he had filed a complaint regarding the change in the plot before the Consumer Court. Thus, from 29.04.1994 when the respondents changed the plot till at least 12.03.2007, the petitioner raised no objection to the change in the plot. This ground is a mere excuse for the failure to pay the amount in respect of the plot. The petitioner now seeks to proceed with the allotment on account of the rise in prices. 9. In the circumstances, any defence to the impugned orders on the basis that the plot had been changed is unsustainable. 10. This brings us to the order passed by the revisional authority dated 26.08.2014. It referred to a policy dated 12.04.2013 granting extension in time to raise the construction on the plot. The policy dispensed with the time limit subject to payment of the extension fee prescribed therein. The revisional authority held that the petitioner’s case was covered by the policy and treated 29.04.1994 as the date of offer of possession. This was indeed a liberal view in favour of the petitioner. It is only in view of this policy that the revisional authority set aside the order of resumption and directed the Estate Officer to raise a demand for extension fee in terms of the policy. This is precisely what the Estate Officer did. 11. But for the policy dated 12.04.2013, the resumption order could not have been faulted for any reason whatsoever. As we noted earlier, the petitioner had, in fact, accepted the change in the plot and, in any event, had not raised any objection thereto for almost 13 years. The refusal to raise construction on the substituted plot is, therefore, a breach of the terms and conditions of the allotment letter which requires the construction to be completed within two years. The petitioner consciously refused to put up the construction. There was no justification for the same. 12. The policy of 12.04.2013 is a concession granted to an allottee. The refusal to raise construction on the substituted plot is, therefore, a breach of the terms and conditions of the allotment letter which requires the construction to be completed within two years. The petitioner consciously refused to put up the construction. There was no justification for the same. 12. The policy of 12.04.2013 is a concession granted to an allottee. The petitioner cannot seek to derive the benefit under the policy, namely, extension of time to put up the construction on the one hand and reject the conditions stipulated for the same in the policy on the other. It is a composite policy and an allottee cannot seek to derive the benefit therefrom and reject the liability thereunder. The petitioner must accept the policy as a whole. 13. Lastly, it was submitted that the extension fee ought not to be charged for the period during the pendency of the revision petition. 14. We are not inclined to agree. The policy of 12.04.2013 was a major concession extended by the respondents. But for the policy, the order of resumption would have stood. The petitioner has had the benefit of increase in prices from the year 1994. It would be unjust, in these circumstances, to grant the relief which would, in fact, amount to our re-writing the policy of 12.04.2013. 15. The petition is, therefore, dismissed.