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2019 DIGILAW 795 (ALL)

Sadhna Rai v. State of U. P.

2019-03-29

B.AMIT STHALEKAR, YOGENDRA KUMAR SRIVASTAVA

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JUDGMENT : B. Amit Sthalekar and Dr. Yogendra Kumar Srivastava, JJ. 1. Heard Shri Vivek Prakash Mishra, learned Counsel for the petitioner and Shri Bhanu Bhushan Jauhari for respondent Nos. 2 and 3 and learned Standing Counsel for respondent No. 1. 2. The petitioner is seeking quashing of the order dated 9.12.2009 as well as the appellate order dated 13.2.2019. 3. Briefly stated facts of the case are that the Greater Noida Authority had launched various schemes for allotment of land for residential purposes, one of the scheme being FDP-1 launched in the year 1998-1999. The husband of the petitioner, G.K. Rai, applied for one of the residential plots in the said scheme and he was allotted the Plot No. 320, Block E, Sector Gamma, Greater Noida on 15.1.1999, the area being 60 sq. meters. The aforementioned G.K. Rai then transferred the said allotment to the petitioner, his wife, as per Rules on 25.3.2003. Thereafter, a lease deed was executed between the petitioner and respondent No. 2 on 29.3.2003. 4. The contention of the petitioner is that between the plot Nos. E319 and E321, there was some vacant land measuring 28 sq. meters which had not been allotted to the petitioner and which she wanted, therefore, she submitted an application to the Greater Noida Authorities on 18.9.2006 (Annexure-4 to the writ petition) and this land was ultimately allotted to her and possession certificate was also granted on 28.12.2007. The proceedings giving rise to the impugned order were with regard to delay in raising constructions over the plot in question. Since the petitioner had failed to raise the constructions within the statutory period of five years from the date of allotment, therefore, a demand of Rs. 3,24,960/- was issued to her through a letter dated 9.12.2009 (Annexure-13 to the writ petition). 5. Aggrieved the petitioner preferred a revision under section 41(3) of the Urban Planning and Development Act, 1973 read with section 12 of the U.P. Industrial Area Development Act, 1976 before the State Government and the revision has been rejected by the other impugned order dated 13.2.2019. 6. 5. Aggrieved the petitioner preferred a revision under section 41(3) of the Urban Planning and Development Act, 1973 read with section 12 of the U.P. Industrial Area Development Act, 1976 before the State Government and the revision has been rejected by the other impugned order dated 13.2.2019. 6. The contention of the petitioner is that though the transfer of allotment was made in the year 2003 but the possession was granted to her only on 28.12.2007 and she had completed construction over the land on 11.2.2010 i.e., within the requisite period of five years and, therefore, there was no delay and the impugned order was wholly illegal. 7. Learned Counsel for the respondents, on the other hand, submitted that the land was allotted to the petitioner's husband on 15.1.1999 and admittedly no construction was made by him till 2003 when the allotment was transferred by him to the petitioner on 25.3.2003, and from 25.3.2003 also the petitioner never raised any construction till 11.2.2010, therefore, in any case, the demand was perfectly valid. 8. We have gone through the terms and conditions of the lease deed dated 29.3.2003 and Para 23 thereof provides that the date of the Lease Deed Registration shall be reckoned as the date of possession. The lessee shall have, to take possession on the same day. Even if we assume that the allotment in favour of the petitioner was made on 29.3.2003, she was required to have completed the construction by March 2008. 9. Para 24 of the lease deed also provides that in case the lessee does not construct the building within the time schedule, he would also be liable for penalties and consequences as mentioned in the lease deed. 10. We cannot ignore the fact that the petitioner was the wife of the original allottee and was in possession of the said plot of land alongwith her husband from the date of its original allotment on 15.1.1999. The paper transfer was made by the husband in favour of his wife, the petitioner, as per Rules, but after 2003 also the petitioner did not complete the constructions within five years. Her contention that she was agitating that the surplus land of 28 sq. The paper transfer was made by the husband in favour of his wife, the petitioner, as per Rules, but after 2003 also the petitioner did not complete the constructions within five years. Her contention that she was agitating that the surplus land of 28 sq. meters be allotted to her and that ultimately was made in the year 2007, and the letter of possession was granted to her on 28.12.2007, would be of no assistance to the petitioner for the reason that even from 2003 when the land was allotted to her and the registration made in her favour, she should have completed the constructions within five years i.e., upto March 2008 as per the terms and conditions of the lease agreement. In her application dated 18.9.2006 made before the Greater Noida Authorities for allotment of the surplus land of 28 sq. meters situate between Plot Nos. E319 and E320 she has not stated anywhere that she was not in possession of Plot No. E320 or that the possession had not been given to her by the Noida Authorities in respect of Plot No. E320. 11. Learned Counsel for the petitioner then submitted that the possession letter in respect of Plot No. E320 was issued to the petitioner on 28.12.2007 in respect of 88 sq. meters of land which included 60 sq. meters of land initially allotted to her in the year 2003 and therefore, the presumption would be that from the year 2003, till 28.12.2007 possession of the land had not been given to her. 12. We are not satisfied with the assertion made by the learned Counsel for the reason that the surplus land itself did not have any individual plot number. Admittedly, it was situate between Plot Nos. E319 and E321. The Plot No. E320 had already been allotted to the petitioner in the year 2003, and at that point of time she had not raised any claim with regard to the additional 28 sq. meters of surplus land, therefore, nothing prevented her from raising constructions over the initial area of 60 sq. meters of land allotted to her. The very fact that even in her application dated 18.9.2006 she has not anywhere alleged that possession of Plot No. 320 measuring 60 sq. meters of surplus land, therefore, nothing prevented her from raising constructions over the initial area of 60 sq. meters of land allotted to her. The very fact that even in her application dated 18.9.2006 she has not anywhere alleged that possession of Plot No. 320 measuring 60 sq. meters was not given to her would itself lead to the presumption that possession had indeed been granted to her in the year 2003 itself when the lease deed was registered and she was under a contractual obligation to have raised constructions over the area of 60 sq. meters of Plot No. E320 within five years from March 2003 itself. 13. From the document filed as Annexure-3 to the writ petition, which is a copy of the lease deed executed on 29.3.2003 in favour of the respondent No. 2, in respect of Plot No. E320, area 60 sq. meters, we find that the possession was taken over by the allottee i.e., the petitioner and her signature to that effect is also found at the relevant place (page 39 of the writ petition) in the lease deed. 14. In this view of the matter we find that the petitioner has failed to raise constructions over Plot No. E320 initially allotted to her within five years from the date of execution of the lease deed in March 2003. 15. Learned Counsel for the petitioner then submitted that the amount of Rs. 3,24,960/- has wrongly been computed as para 23-a of the lease agreement mentions that the demand would be 4% for the first year, 6% for second year and 8% for third year. In our opinion the provisions of Para 23-a only apply to those cases where extension of time for raising constructions is sought for by the allottee and time is granted by the Greater Noida Authorities. 16. In the present case, there is nothing on record to show that the petitioner had ever submitted any application for grant of time or extension of time for raising constructions and, therefore, it is not open to her to raise this plea before the High Court for the first time. 17. For the aforesaid reasons, we do not find any illegality or infirmity in the orders impugned. The writ petition lacks merit and is, accordingly, dismissed.