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2021 DIGILAW 775 (PNJ)

Dalel Singh v. State Of Haryana

2021-04-05

KARAMJIT SINGH, RAJAN GUPTA

body2021
JUDGMENT Karamjit Singh, J. - Case has been heard through video conferencing on account of COVID-19 Pandemic. 2. The petitioner has filed the present writ in the nature of Certiorari for setting aside the order dated 30.4.2019 (Annexure P-7) passed by respondent No.2-The Additional Chief Secretary Haryana, Agriculture and Farmers' Welfare Department and order dated 13.6.2018 (Annexure P-5) passed by respondent No.3-Chief Administrator, Haryana State Agriculture Marketing Board with further prayer to direct the respondents to refund the amount claimed by the petitioner. 3. It is the case of the petitioner that Booth No.142 in extension New Grain Market and New Subzi Mandi, Pundri, District Kaithal was allotted to the petitioner in an open auction, vide allotment order No.415 dated 19.5.2008 (Annexure P-1). The price of the booth was 10,70,000/-. Out of which 25% was paid as allotment price by the petitioner. Balance 75% of the cost of the booth was to be paid in six half yearly installments. After the allotment, the petitioner approached respondent No.4-Executive Officer-cum-Secretary, Market Committee, Pundri for the approval of the plan. After waiting for a reasonable long time, the petitioner started raising construction at the spot including basement, after issuance of notification dated 17.4.2009 (Annexure P-3). In July, 2016, respondent No.4 served notice dated 4.7.2016 (Annexure P-2) directing the petitioner to pay sixth and last installment worth 2,11,050/- and basement charges of 1,60,800/-. The petitioner is not liable to pay the basement charges at the rate of 15% of the allotment price, as has been demanded by respondent No.4. The possession of the site was given to the petitioner after the issuance of notification (Annexure P-3) issued by the Agriculture Department, Haryana. As per the said notification whoever intends to construct basement could do so by paying additional charges at the rate of 10% of the allotment price. The petitioner being aggrieved by demand notice (Annexure P-2), filed an appeal (Annexure P-4) with a plea that as per notification (Annexure P-3) he was liable only to pay additional charges at the rate of 10% of the allotment price. However the appeal was dismissed by respondent No.3 vide impugned order dated 13.6.2018 (Annexure P-5). Even the revision petition filed by the petition was also dismissed by respondent No.2 vide order dated 30.4.2019 (Annexure P-7). Both the impugned orders are illegal being passed in violation of notification (Annexure P-3). 4. Mr. Ankur Mittal, Addl. However the appeal was dismissed by respondent No.3 vide impugned order dated 13.6.2018 (Annexure P-5). Even the revision petition filed by the petition was also dismissed by respondent No.2 vide order dated 30.4.2019 (Annexure P-7). Both the impugned orders are illegal being passed in violation of notification (Annexure P-3). 4. Mr. Ankur Mittal, Addl. A.G. Haryana who was having advance copy of the petition, appeared on behalf of the respondents. His assistance has been sought. 5. We have also heard the counsel for the petitioner and State counsel. 6. The counsel for the petitioner submitted that though the allotment of booth was of year 2008 however its possession was given to the petitioner after the issuance of notification dated 17.4.2009 (Annexure P-3). The petitioner constructed basement and booth, only after getting the actual physical possession at the spot. The basement being constructed after the notification of 2009, the case of the petitioner is covered by clause (xiii) of the said notification (Annexure P-3). So, he is to pay only an additional amount equal to 10% of the allotment price of the site. The counsel for the petitioner further contended that it being so, the demand raised by respondent No.4 at the rate of 15% of the allotment price of the booth is totally unjustified. It is further contended that consequently both the impugned orders (Annexures P5 and P-7) also deserve to be set aside being illegal, null and void. 7. On the other hand, the State counsel submitted that booth No.142 was allotted to the petitioner in 2008 and thereafter he constructed basement and booth at the spot, prior to notification dated 17.4.2009, without the prior permission of the respondents. The State counsel further argued that as the basement was constructed prior to issuance of aforesaid notification, the case of the petitioner is covered under clause (xiv) of the said notification. So, there was no illegality in the demand notice (Annexure P-2) whereby the petitioner was directed to pay an additional amount equal to 15% of the allotment price of the booth as basement charges, which was constructed by him without taking approval of the concerned authority prior to 17.4.2009. 8. We have considered rival submissions made by counsel for the parties. 9. 8. We have considered rival submissions made by counsel for the parties. 9. As per clause (xiii) of notification dated 17.4.2009 (Annexure P-3), the allottees who intend to construct basement, have to pay an additional amount equal to 10% of the allotment price of the plot. However, clause (xiv) of notification provides that where basements have already been constructed by the allottees without prior approval of the Government, the same shall be regularized on payment of additional amount equal to 15% of the allotment price of the plot. 10. The petitioner intends to take benefit of clause (xiii) of the notification, by saying that he constructed basement after issuance of notification dated 17.4.2009 (Annexure P-3). On the contrary the plea of the respondents is that the said construction was raised by the petitioner prior to issuance of said notification, without their prior approval. 11. Admittedly in the present case no prior permission was taken or plan was got approved by the petitioner, before construction of basement. 12. So the present writ petition involves disputed question of fact as to whether basement was constructed before or after the issuance of notification (Annexure P-3). The same for its determination requires evidence, such as oral statements and supporting documents. 13. Consequently, we are of the view that the present writ petition involving disputed questions of fact, is not maintainable. The same is dismissed, accordingly. However, the petitioner is at liberty to avail the appropriate remedy as per law.