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2024 DIGILAW 880 (ALL)

D. Kumars and Company v. State of U. P.

2024-03-21

ASHWANI KUMAR MISHRA, SYED QAMAR HASAN RIZVI

body2024
JUDGMENT : 1. This writ petition arises out of an order passed by the Vice Chairman, Prayagraj Development Authority, dated 15.2.2024, contained in Annexure No. 1 to the writ petition, whereby petitioner’s application submitted for issuing completion certificate has not been accepted. The application itself was filed pursuant to the liberty granted by this Court in petitioner’s previous writ petition no. 42231 of 2023. The petitioner submits that the order impugned is wholly arbitrary and is in teeth of the previous adjudication made by this Court in petitioner’s earlier writ. 2. The impugned order of the Vice Chairman runs into eight pages. Paragraph No. 1 to 21 of the order notices facts relating to the controversy raised. The findings and conclusion in the order under challenge is contained in para 22, which is reproduced hereinafter:- 3. Although the Vice-Chairman has recorded in his order that there is no hindrance in issuance of completion certificate in respect of 14 units yet the completion certificate has not been issued to the petitioner. 4. In order to appreciate the controversy raised some of the background facts are required to be noticed. A building plan was initially approved by the Prayagraj Development Authority on 11th of March, 2019 in favour of the petitioner for construction of 16 residential units, on a parcel of land being part of freehold plot no. 35 and 35A, Lukerganj, Prayagraj. The construction project was got registered with U.P. Real Estate Regulation Authority on 15.10.2019. This registration was initially valid for a period of three years and is stated to have been extended upto 2.10.2023. It transpires that the plot on which these constructions were permitted to be raised belonged partly to the petitioner and rest to Rajesh Kumar Athwani, Deepak Kumar and Umesh Athwani. These private individuals had transferred part of their share earlier in favour of the present petitioner. 5. It transpires that an exchange deed was executed between petitioner’s vendor and Respondent No. 5 in the present petition on 06.05.2017 as a result of which 133.4 sq.meter land falling in the project area was exchanged with 96.6 sq.meter land belonging to petitioner’s vendor. This exchange deed contained a stipulation in Clause-6, which is reproduced hereinafter:- "6. 5. It transpires that an exchange deed was executed between petitioner’s vendor and Respondent No. 5 in the present petition on 06.05.2017 as a result of which 133.4 sq.meter land falling in the project area was exchanged with 96.6 sq.meter land belonging to petitioner’s vendor. This exchange deed contained a stipulation in Clause-6, which is reproduced hereinafter:- "6. That the Second Party shall however have right to ingress and egress from the North side of their Property, to the property and man entrance of the property of the First Party as aforesaid from the Main Road, marked Red in the annexed Site Plan, whereby Main Entrance of the Property of the First Party from Main Road shall be common to entry to the Property of the Second Party." 6. The fifth respondent apparently objected to the ongoing constructions commenced by the petitioner in terms of the sanctioned map on the ground that their right to passage, existing between the 16 row houses would be obstructed and thereby the sixth clause of the exchange deed would stand violated. This was so as no passage was provided in terms of Clause-6 in the building plan sanctioned on 11.3.2019. Consequently, a suit being Original Suit No. 187 of 2021 came to be instituted by respondent no. 5 and others before the Civil Court at Prayagraj. In the said suit the present petitioner is arrayed as the only defendant. Prayer in the nature of mandatory injunction has been claimed in the suit, which is reproduced hereinafter:- "By means of mandatory injunction, the defendant be directed to erect 30 ft. wide common passage from North of the plaintiffs Land shown by letters. A.H.I.C. linking the same to 30 ft. wide common road erected by the defendant which goes from East to West and which has been shown in the map sanctioned by the P.D.A. on 11/03/2019, within the time provided by the court, failing which the decree complied with through the Court." 7. Other ancillary reliefs were also sought in the matter. It is admitted that the suit is pending and there is no interim injunction granted to the fifth respondent in the suit, so far. 8. It transpires that objections were also made by the private respondent/plaintiffs before the Development Authority on account of alleged breach of the covenants in the exchange deed. The petitioner was also confronted with this aspect of the matter. 8. It transpires that objections were also made by the private respondent/plaintiffs before the Development Authority on account of alleged breach of the covenants in the exchange deed. The petitioner was also confronted with this aspect of the matter. It is at this juncture that the petitioner submitted a compounding plan stating that they would not raise any construction on units Nos. 6 and 7 proposed to be constructed as per building plan sanctioned on 11.3.2019 awaiting adjudication of the suit in respect of Clause-6 of the exchange deed. The petitioners, therefore, claimed before the authority that they be permitted to raise construction on the remaining 14 units. This compounding plan/building permission was approved on 15th of December, 2021, subject to Clause 5 to 7 of the sanction letter, which are reproduced hereinafter:- 9. As allowed by the authority vide permission dated 15.12.2021 the petitioner has not proceeded any further with the constructions on unit No. 6 and 7, which continue to remain sealed in terms of Clause 5 of the regularization/ permission dated 15.12.2021. There is no allegation that these two units have either been sold or any fresh rights have been created in favour of anybody over it. 10. In terms of the permission granted by the authority vide regularization order dated 15th of December, 2021, the petitioner has proceeded to raise construction of 14 units and allegedly completed it as per the approved plan. It is thereafter that the petitioner moved an application for issuance of completion certificate, which was not considered. It was in this context that the petitioner came earlier before this Court by filing writ petition no. 42231 of 2023. The authority resisted petitioner’s claim on account of pendency of civil suit etc. The authority was confronted with the specific permission granted by it vide regularization order dated 15.12.2021. Faced with it, the authority undertook to examine petitioner’s claim. The writ petition was consequently disposed of vide following orders:- "Heard Sri Rahul Sripat, Senior Counsel assisted by Sri Swetashwa Agarwal for the petitioner and Sri Rakesh Pandey, Senior Counsel assisted by Sri Anuj Mandhyan for private respondent no. 6 as well as Sri A.P. Paul for the Prayagraj Development Authority, Prayagraj. The petitioner is a Real Estate Company, which has undertaken constructions of certain villas on Plot Nos. 35 and 35-A, Lukerganj, Tehsil Sadar, District Prayagraj. 6 as well as Sri A.P. Paul for the Prayagraj Development Authority, Prayagraj. The petitioner is a Real Estate Company, which has undertaken constructions of certain villas on Plot Nos. 35 and 35-A, Lukerganj, Tehsil Sadar, District Prayagraj. The original lay-out was sanctioned by the Development Authority providing for construction of 16 houses. The right to raise constructions upon Plot Nos. 35 and 35A is derived from an authority given to petitioner by the owners of the plot. An area of 1137.04 sq. mtrs. from Plot No. 35A and 360 sq. mtrs. out of Plot No. 35 have been purchased by the petitioner and in respect of other remaining land a "Builders Agreement" exists. The building plan was sanctioned. Subsequently, a compounding map has been submitted by the petitioner which has also been approved by the authority. The building plan, which has been approved by the authority, shows that houses exist on two sides of a 30 feet passage and at its rear end. An objection was raised by the sixth respondent contending that he was promised 30 feet wide passage from the north of his property under an agreement and construction of house nos. 6 and 7, in the sanctioned plan, would obstruct his ingress and egress. It would also be in teeth of the agreement entered into between the petitioner's vendor and the 6th respondent. An Original Suit No. 187 of 2021 has been instituted by the 6th respondent before the Civil Court, Prayagraj, which is pending. On account of the dispute between the 6th respondent and the petitioner's vendor, an undertaking has been given by the petitioner before the authority that it would not raise construction of house nos. 6 and 7 and that construction on such part of the land would abide by the determination made by the Civil Court. A plan for issuance of completion certificate in respect of remaining 14 houses has been submitted by the petitioner on 21.03.2023. Since such completion certificate has not been given, the petitioner is before this Court. Learned Senior Counsel for the petitioner submits that Section 15-A of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'Act of 1973') provides for issuance of the completion certificate. Since such completion certificate has not been given, the petitioner is before this Court. Learned Senior Counsel for the petitioner submits that Section 15-A of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'Act of 1973') provides for issuance of the completion certificate. Such certificate is to be granted by the development authority, if the constructions are made as per the approved plan and a notice of such completion is given to the authority. The proviso contemplates that if such certificate is not granted, the completion certificate shall be deemed to be granted within three months. Relying upon such provision, it is alleged on behalf of the petitioner that action of the respondents in not issuing the completion certificate is arbitrary. The petitioner is also aggrieved by a communication issued by the Zonal Officer dated 09.10.2023, which mentions that the condition mentioned in the sanctioned plan, that the constructed premises would be utilized only after completion certificate is issued, has been violated. It is further mentioned in the notice that without getting the completion certificate issued, the petitioner is utilizing villa no. 8, 9 and 11. A direction has been issued to the petitioner not to utilize the premises without getting the completion certificate issued. Submission is that once completion certificate in respect of 14 houses has been sought on 21.03.2023, and no decision upon it was taken, the authority is precluded from issuing the impugned communication, particularly when no construction was otherwise raised on unit nos. 6 and 7. According to the petitioner the completion certificate is deemed to have been issued. Sri A.P. Paul, appearing for Development Authority states that in the event such facts are placed before the authority, an appropriate decision in terms of Section 15-A of the Act of 1973 would be taken by the authority. It is also urged that the authority shall verify whether the constructions made are as per the plan. Sri Rakesh Pandey, Senior Counsel appearing for 6th respondent states that rights of the 6th respondent ought not to be allowed to be obstructed by issuance of completion certificate. From the materials placed on records it is not disputed that a building plan for construction of 16 houses has been sanctioned by the authority. Sri Rakesh Pandey, Senior Counsel appearing for 6th respondent states that rights of the 6th respondent ought not to be allowed to be obstructed by issuance of completion certificate. From the materials placed on records it is not disputed that a building plan for construction of 16 houses has been sanctioned by the authority. There were apparent issues between the petitioner's vendor and the 6th respondent, and the petitioner has clearly undertaken not to raise any construction of unit no. 6 and 7. Any development of these two residential units would abide by the outcome of the Civil Court. The petitioner has already informed the authority that remaining 14 units have been constructed as per plan and a prayer has been made for issuance of a completion certificate. No objection appears to have been made by the authority against the application of petitioner for issuance of completion certificate. In such circumstances, we permit the petitioner to place such facts before the authority along with certified copy of this order within a week from today. The Vice Chairman of the Development Authority shall ensure that petitioner's claim, noticed above, is accorded consideration in accordance with law within a further period of four weeks, thereafter. The writ petition is disposed of, accordingly." 11. It is, thereafter, that the Vice Chairman of the authority has denied issuance of completion certificate to the petitioner despite holding that there is no legal hindrance in issuance of such completion certificate, taking shelter of the inter se dispute between the petitioner and respondent No. 5. 12. The writ petition was entertained and as prima facie this Court was of the opinion that having granted permission to raise construction of 14 units vide regularization order dated 15.12.2021 it was not open for the authority to deny issuance of completion certificate. A further opportunity was consequently allowed to the authority to revisit the matter vide order dated 11.3.2024. Paragraph Nos. 5 to 7 of the order dated 11th of March, 2024 are reproduced hereinafter:- "5. The order of the Vice-Chairman depicts that the authority has not understood the directions issued in previous order passed by this Court. This Court had clearly permitted the petitioners to apply for issuance of completion certificate in respect of 14 houses for which alone compounding plan had already been sanctioned. The order of the Vice-Chairman depicts that the authority has not understood the directions issued in previous order passed by this Court. This Court had clearly permitted the petitioners to apply for issuance of completion certificate in respect of 14 houses for which alone compounding plan had already been sanctioned. The consideration at the level of the authority for issuance of completion certificate was limited to these 14 houses. The Vice-Chairman in his order states that there is no hindrance in issuance of completion certificate of 14 houses and that such a certificate can be given subject to ultimate adjudication to be made in the civil suit in respect of condition no.6, which pertains to the area beneath plot nos.6 and 7. 6. Once the officer found the plea of grant of completion certificate to be permissible in respect of 14 houses the natural consequence of such observation is that the completion certificate would be issued in the matter. Instead of doing so, the Vice-Chairman has again disposed of the matter without actually doing anything. This tendency to pass orders which effectively does not deal with the grievance of the litigant creates uncalled for litigation. 7. Before proceeding further, we call upon the Vice-Chairman to file his personal affidavit explaining and justifying his action in the context of the findings returned by the officer himself in the order under challenge. The officer shall specifically explain as to why the completion certificate has not been issued once he found the issuance of completion certificate to be permissible for 14 houses in terms of his own order." 13. The Vice Chairman has filed his personal affidavit, in which it is stated that initially the plan was sanctioned for 16 dwelling units, and that a civil dispute is pending in Original Suit No. 187 of 2021. Paragraph Nos. 20 to 24 of the affidavit filed by the Vice Chairman makes an interesting reading and are reproduced hereinafter:- "20. That is most humbly submitted that while requesting for completion certificate of those 14 Units the unauthorized construction/un-compounded constructions are required to be removed. 21. That is it humbly submitted that the request of the petitioner is to issue completion certificate despite there being un-compounded/unauthorized constructions standing on the project site. 22. That the petitioner cannot obtain completion certificate as against the compounded layout/development plain. 23. 21. That is it humbly submitted that the request of the petitioner is to issue completion certificate despite there being un-compounded/unauthorized constructions standing on the project site. 22. That the petitioner cannot obtain completion certificate as against the compounded layout/development plain. 23. That the completion certificate can be forthwith granted if the sealed constructions standing on the land of Unit no. 6 & 7 may be demolished, as they are the part of sanctioned plan the demand of the petitioner presently is clearly reflecting that he should be issued completion certificate despite existence of un-compounded constructions in the project. 24. That it is humbly submitted that the completion certificate can be immediately granted in case un-compounded/unsanctioned constructions are removed or compounded in accordance with law." 14. On behalf of the authority it is stressed that while uncompounded structures over Unit No. 6 and 7 stand on the plot, it would not be open for the authority to consider issuance of completion certificate in respect of 14 units. It is, therefore, stated that unless Unit No. 6 and 7 are either demolished or compounded, it would not be open for the authority to issue the completion certificate. 15. We have heard Shri Rahul Sripat, learned Senior Counsel on behalf of the petitioner, Shri Anoop Trivedi, learned Senior Counsel for the Prayagraj Development Authority and Shri Gajendra Pratap, learned Senior Counsel for respondent No. 5 and have perused the materials on record. 16. The controversy raised in the writ petition is extremely limited and in the event the authority had carefully examined its records in the context of applicable provisions of law no occasion would have arisen for the petitioner to repeatedly approach this Court. 17. We have already taken note of the facts and it is apparent that though initially a building plan was approved for construction of 16 units on the premises in question, but the construction of 16 units did not proceed on account of inter se dispute, which came to be raised by the fifth respondent and other co-sharers. The fifth respondent essentially was claiming right of ingress and egress to the passage created in the project between the two set of row houses. The fifth respondent essentially was claiming right of ingress and egress to the passage created in the project between the two set of row houses. Contention of the fifth respondent that petitioner would be bound by the covenants of exchange deed executed between the petitioner's vendor and fifth respondent is an aspect pending consideration in proceedings before the civil court. No injunction has been passed by the Civil Court in Original Suit No. 187 of 2019. However, in order to avoid any further complications, the petitioner voluntarily gave an affidavit stating that it would not proceed with the construction on unit Nos. 6 and 7 and would await the outcome of pending litigation before the civil court. It was on the basis of this undertaking given by the petitioner that the subsequent permission for construction of 14 units was granted by the authority vide compounding plan dated 15th of December, 2021. The compounding plan clearly make it permissible for the petitioner to raise construction of 14 units and the two units i.e. unit Nos. 6 and 7 were specifically required to be left as it is and was to remain subject to the pending suit. The stipulation contained in Clause 5 to 7 of the compounding plan dated 15th December, 2021, categorically permitted the petitioner to raise construction of 14 units. It is pursuant to this permission granted by the authority on 15th of December, 2021 that the petitioners have applied for issuance of completion certificate. 18. Section 15-A of the U.P. Urban Planning and Development Act, 1973 provides for issuance of completion certificate and is reproduced below:- "15-A. Completion Certificate. (1) Every person or body having been granted permission under sub-section (3) of section 15, shall complete the development according to the approved plan and send a notice in writing of such completion to the Authority, and obtain a completion certificate from the Authority in the manner prescribed or provided in the bye-laws of the Authority. Provided that if completion certificate is not granted and refusal to grant it is not intimated within three months after receipt of the notice of completion, it shall be deemed that the Completion certificate has been granted by the Authority. (2). Provided that if completion certificate is not granted and refusal to grant it is not intimated within three months after receipt of the notice of completion, it shall be deemed that the Completion certificate has been granted by the Authority. (2). No person shall occupy or permit to be occupied any commercial building or use are permit to be used such building or part thereof affected building or work until completion certificate has been issued by the Authority, or Authority has failed for three months after the receipt of notice of completion to intimate its refusal of grant of the said certificate. Explanation. - For the purposes of this section, the expression 'commercial building' shall have the meaning assigned to it in the Uttar Pradesh Municipal Corporations Act. 1959.” 19. The Statute is clear and categorical, inasmuch as an application for grant of completion certificate can be moved pursuant to a permission granted under Sub-Section 3 of Section 15 of the U.P. Urban Planning and Development Act, 1973. The permission granted by the authority on 15th of December, 2021 allowing 14 units to be constructed on the spot was thus a permission pursuant to which the completion certificate could be claimed by the petitioner. The petitioner has thus approached the authority for issuance of such completion certificate. The authority having allowed permission on 15.12.2021 to raise construction of 14 units, subject to the conditions contained in clause 5 to 7 of the order cannot be permitted to resile from its earlier stand and refuse issuance of completion certificate only on the ground that unit Nos. 6 and 7 have not been included in the permission granted by the authority on 15th of December, 2021. The authority having specifically granted permission to raise 14 units cannot go contrary to the stipulations made in its own order dated 15.12.2021. 20. The stand taken by the authority before this Court is completely at variance with its own order dated 15th of December, 2021. The permission granted by the authority on 15th of December, 2021 clearly provides that unit No. 6 and 7 would remain sealed and that no constructions would be raised upon it. It is further stipulated in the permission letter dated 15th of December, 2021 that the final adjudication in Original Suit No. 187 of 2021 would ultimately bind the parties in respect of the claim raised before the civil court. It is further stipulated in the permission letter dated 15th of December, 2021 that the final adjudication in Original Suit No. 187 of 2021 would ultimately bind the parties in respect of the claim raised before the civil court. Having specifically so provided in the regularization order dated 15th of December, 2021, it is not open for the authority now to say that unless the constructions initially raised on unit No. 6 and 7 are demolished or compounded, the completion certificate cannot be issued to the petitioner. 21. Despite the orders passed on the previous occasion the authority has failed to examine the matter in correct perspective. Even, during the pendency of the writ petition we have confronted the Vice Chairman with the facts of the case, but we find that repeated opportunity granted in the matter have not been availed. The approach of the Vice Chairman in sticking to its stand notwithstanding the previous permission granted and the directions issued in the previous writ, cannot be appreciated. Due diligence on the part of the authority is to be appreciated, but the manner in which the authority has been insistent upon its stand contrary to the statutory provisions as well as their own orders deserves to be deprecated. We stop at this. 22. Once the plan for construction of 14 units was approved on 15th of December, 2021, the prayer for issuance of completion certificate had to be accorded consideration in terms of Section 15-A of the Act of 1973. It is not open for the authority to fall back upon the ongoing private dispute between the petitioner and the fifth respondent to deny performance of its statutory duty or to take sides in that regard. 23. The writ petition, accordingly, succeeds and is allowed. 24. A writ of mandamus is issued to the Vice Chairman of the Prayagraj Development Authority to accord consideration to petitioner’s application for issuing completion certificate in respect of 14 units constructed pursuant to the permission/regularization allowed by the authority on 15th of December, 2021 within a period of four weeks from today in light of the observations contained in this judgment. We clarify that issuance of completion certificate to the petitioner would not be to the prejudice of the fifth respondent, who will be entitled to press its claim before the civil court and no equity would be claimed in such civil proceedings by the petitioner on account of issuance of completion certificate pursuant to permission dated 15.12.2021. 25. No order is passed as to costs.