C.L. Anand vs State of Haryana and Others

V.S. Aggarwal, J.—The petitioner has applied to the Estate Officer, Haryana Urban Development Authority, Bahadurgarh (for short the Estate Officer'') for allotment by sale of an industrial plot at Bahadurgarh He was allotted plot No. 562 measuring 227.50 sq. meter on the terms and conditions mentioned in the allotment letter. As per the terms and conditions, the balance amount of Rs. 3,750/- of the tentative price of the plot could be paid in lump-sum without interest within 60 days and the possession of the plot was to be offered on completion of development work. The petitioner was to complete the construction within two years of the date of offer of possession after getting the site plan of the proposed building approved from the competent authority. Petitioner''s case is that on 25.5.1982 the Estate Officer issued a notice to show cause u/s 17(3) of the Haryana Urban Development Authority Act, 1977 pointing out that he has failed to complete the construction within two years i.e. by 17.10.1981 and thus has committed breach of the agreement. Reply was filed by the petitioner mentioning that as yet he has not been given possession of the plot and, therefore, question of construction on the plot does not arise. Meanwhile on 26.7.1982 the petitioner was given possession of the plot. Notwithstanding the reply, the industrial plot allotted to the petitioner was resumed by the Estate Officer u/s 17(4) of the Haryana Urban Development Authority Act. The petitioner preferred an appeal against the order of resumption to the Administrator, Haryana Urban Development Authority. The appeal was accepted. The plot was restored to the petitioner on the condition that he will deposit Rs. 25,000/- within 45 days from the date of receipt of the order and was to submit the building plans within three months and complete the construction within one year. The amount was deposited by the petitioner as directed by the Administrator, Haryana Urban Development Authority. On 16.5.90 the Estate Officer issued a recovery notice of extension of time for construction of industrial plot. The petitioner in accordance with the said notice deposited the amount of Rs. 2,047.50. The result was that on 14.7.1990 the petitioner was granted permission to erect the building and the period to this effect was extended upto 13.7.1992.

On 3.9.1992 a notice to show cause was issued by the Estate Officer u/s 17(3) of the Haryana Urban Development Authority Act pointing out that the petitioner has committed breach of condition of sale. Reply was submitted by the petitioner in which he pointed out that foundations of the plot has been dug, but due to excessive rain the construction has to be postponed. It was stated that since the period of sanctioned plan has expired, the petitioner requested the Estate Officer to inform if he could continue the construction work. No reply was received the petitioner was informed that he was liable to pay Rs. 152/- as revalidation fee and Rs. 568/- as extension fee. The Estate Officer on 5.2.1993 ordered resumption of the plot and further directed that the amount of Rs. 544/- out of the paid amount be forfeited. Aggrieved by the said order, the petitioner preferred an appeal with the Administrator, Haryana Urban Development Authority, pointing out that he could not start construction due to non-availability of water at site and further that he intended to start construction and had dug the foundation at site but because of rain the work had to be postponed. The appeal was dismissed and the plot was resumed. A further revision was preferred by the petitioner which too failed.

By virtue of the present writ petition, petitioner seeks quashing of the show cause notice dated 3.9.1992 (Annexure P-11), the order resuming the plot and the subsequent orders of the Appellate Authority and that of the Revisional Authority, Annexures P-22 and P-23 respectively. The petitioner further seeks a direction that the plot should be deresumed to him and his site plan to construct the same should be re-validated.

The petition has been contested by respondents No. 2 and 3, namely, Administrator, Haryana Urban Development Authority, and the Estate Officer. It was pointed that as per the conditions of the allotment letter, the petitioner was bound to complete the construction over the plot within a period of two years from the date of offer of possession which was made to the petitioner vide letter dated 17.7.1981. The petitioner had taken possession of the plot on 26.7.1982 but failed to complete the construction within a period of two years. Since the petitioner failed to complete the construction, a notice to show cause has been issued. The reply had been considered. Personal hearing was given to the petitioner and thereupon the order resuming the plot was passed. It was denied that the petitioner failed to construct the building due to excessive rain. On the contrary, respondent''s plea was that he was not keen to start construction.

As is apparent from the resume of the facts given above, the sole controversy in the present case is as to if respondents No. 2 and 3 were justified in resuming the plot or not? Learned counsel for the petitioner highlighted the fact that though the period to set up the construction had been extended uptil 14.7.1992 still in the notice to show cause reference was made that two years period had expired on 16.7.1983. He further urged that the orders so passed were non-speaking and contrary to the record which indicate that there was no application of mind by the authorities. Needless to say, the said contentions were controverted.

To appreciate, reference with advantage can be made to some of the relevant documents on the record. Annexure P-l is the copy of allotment letter and one of the condition was that building has to be completed within two years. The Estate Officer was competent to extend the time. Condition No. 18 of the allotment letter reads as under:-

"18. You will have to complete the construction two years of the date of offer of possession after 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 money paid, if any, in respect of it forfeited in accordance with the provision of the said Act. 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."

Since the building had not been competed, a show cause notice was sewed, copy of which is Annexure P-2 dated 25.5.1982. The attention of the petitioner was drawn that he has not completed the construction within the stipulated time. Reply dated 17.7.1982 was submitted by the petitioner in which he had mentioned that he had not been given possession of the plot and therefore, question of construction on the said plot does not arise. The plot was resumed vide order dated 1.6.1983. The petitioner had preferred an appeal and the operative part of the order passed by the Administrator, Haryana Urban Development Authority, reads as under:-

"This resumption has been done by the Estate Officer due to non-construction of the plot. The appeal is not only barred by 30 days which is also waived off. I have heard the appellant and gone through the file. The appellant has taken plea that it has been given possession in July, 1982 and he was supposed to complete the construction within two years from the date of possession. This date has not yet been expired. The appellant has also taken the plea that no notice etc. was served to the appellant and also was not heard in person by the Estate Officer. After hearing the appellant, I accept the appeal and restore the plot with the condition to deposit Rs. 2,500/- within 45 days from the date of receipt of this order. The appellant is further directed to submit the building plans within 3 months and complete the construction within one year from the date of sanction of the building plans. Communicated by regd. A.D. post."

It is abundantly clear from the aforesaid that on 2.1.1984 when the Administrator, Haryana Urban Development Authority allowed the appeal, the petitioner was given a fresh lease of life with respect to the plot in question. It is not in controversy that condition regarding deposit of the amount has been complied with. Therefore, reference to the earlier default, if any, except for the purpose of showing intention etc. is hot material. In the subsequent period, the petitioner had been taking extension and depositing the necessary fee. Annexure P.10 is copy of the letter written by the Estate Officer dated 14.7.1990 which reveals that time was extended to the petitioner as per terms for a period of two years and it reads as under:-

"Reference your application for permission to erect/re-erect/and to alter a building on plot No. 562, Sector MIE at Bahadurgarh in accordance with the plans submitted with it.

Permission is hereby :-

(i) granted for the aforesaid construction subject to the provisions of the Haryana Urban Development Authority (Erection of Building) Regulations, 1978, as amended from time to him.

(ii) xx xx xx

(iii) xx xx xx

Sd/- Estate Officer

Haryana Urban Development Authority,

Bahadurgarh."

Copy of the letter Annexure P.10 clearly indicates that time had been extended by the Estate Officer and consequently reference to any extension of time is immaterial. The impugned action has been taken on the basis of show cause notice dated 3.9.1992, Annexure P-11. In the said show cause notice rather than referring to any violation of terms and conditions after 14.7.1990, the respondent-Estate Officer has pointed that two years period had expired on 16.7.1983. The relevant extract of the show cause notice reads as under :-

"Whereas you were allotted Industrial Plot No. 562, Sector MIE Bahadurgarh vide this office letter No. 5425 dt. 17.10.79. According to the terms and conditions of allotment you were required to complete the construction upon the site within two years or within the extended period which expired on 16.7.83 but you failed to do so, you have thus committed a breach of the; said condition of sale."

It is abundantly clear that not only the show cause notice is vague but it proceeds on a wrong premise. It refers to a period for which there has been extension given to the petitioner to reconstruct the building after getting the plans sanctioned. When the show cause notice itself proceeds on a Wrong premise and does not state correct facts, the petitioner can conveniently state and, therefore, rightly contend that no fair or sufficient opportunity had been granted. It reveals that there was no proper application of mind by the Estate Officer before issuing show cause notice and it was so done in a routine manner.

Not only that, as already pointed out above and re-mentioned at the risk of repetition, the petitioner had intimated the Estate Officer that he had dug the foundation, construction had to be postponed because of the rain and that in the meantime the period of sanction plan had expired. He requested as to whether he should continue the construction work or get the plan revalidated. In the impugned order, copy of which is Annexure P-16, by virtue of which the plot was resumed, there was no mention what was pointed out by the petitioner. In a routine manner the authorities simply referred to the fact that because construction had not been completed, therefore, the plot is liable to be resumed. It is not of place to mention that in para No. 18 of the allotment letter which has already been reproduced above, it is stated that the Easate Officer is to extend the time limit if he is satisfied that non- construction of the building was due to the reasons beyond his control. That being one of the condition, the Estate Officer must have considered the plea raised by the petitioner. Unfortunately, he did not care to do so. Even the Administrator, Haryana Urban Development Authority fell into the same error and dismissed the appeal simply stating that construction has hot been made within two years. This reflects and makes us to conclude that there was no application of mind and in a routine manner the plot was resumed.

Ordinarily, it was for the authority to consider the facts and pass appropriate order. This Court will not sit as a court of appeal on the discretion to be exercised by the authority. But once it has come to the notice of the Court that there has been a show cause notice which does not state correct facts and subsequently it is followed by order resuming the plot which lacks application of mind, in that event this Court will be failing in its duty in not exercising its extra-ordinary power under Article 226 of the Constitution.

Our attention was drawn to the fact that the Haryana Urban Development Authority has announced a new policy towards extension fee that is payable. Learned counsel for the petitioner has no objection in paying the said amount in accordance with the new policy.

For these reasons, we allow the writ petition. The orders Annexures P-16, P-22 arid P-23 are declared inoperative subject to the following conditions :-

Within 6 days from today, the petitioner shall appear before the Estate Officer, Haryana Urban Development Authority, Bahadurgarh, and within next 15 days, the concerned Estate Officer shall communicate the amount payable by the petitioner towards the arrears of extension fee which is payable in terms of the latest policy announced by the Haryana Urban Development Authority, alongwith the interest chargeable under the Rules. Within the next two months, the petitioner shall deposit the amount intimated to him by the Estate Officer, Haryana Urban Development Authority, Bahadurgarh, and he shall complete the construction of the building in accordance with the sanctioned plan within next six months. In case, the petitlorler fails to abide by any of these condition, the orders passed by the Estate Officer for resumption of the plot shall become operative and the petitioner shall not be entitled to claim any damages or compensation:

Copy of the order be given dasti on payment of prescribed fee.