Rishmani Exports (Garments) vs State of Haryana

B.C. Verma, CJ.—Notice of motion was issued. Written statement has been filed. Application has also been filed with certain documents

which is allowed and document has been taken on the record. Counsel heard of the case.

By the respondent authority plot in Sector 27C was allotted to Major C.S. Mann, who has since expired. Time was scheduled for construction.

Plans have been sanctioned. It however, appears that the construction could not be commence within the stipulated period despite plans having

been sanctioned. The petitioner explains that it was because of the death of the original allottee as also because certain unauthorized occupants had

trespassed into the land. Since, however, the construction did not commence within the stipulated time, the plot, by order, Annexure P.6 was

resumed. Against such an order, admittedly, an appeal lies under Section 17(5) of the Haryana Urban Development Authority Act, 1977.

Admittedly, this appeal was not filed and the petitioner has straightaway come to this Court in this writ petition. Another fact worth mentioning is

that during the pendency of this writ petition, the extension fee was remitted to the respondent authority which was accepted as is clear from

Annexure P. 11. However, it was returned to the petitioner on the ground that it was wrongly accepted, the Estate Officer did not know that the

present writ petition was pending. It is, therefore, urged that the amount was accepted under mistake. On merits, it has been argued by the

respondents that the petitioner could not therefore the respondents were perfectly justified in resuming the plot.

After hearing the learned counsel at length, we are of the opinion that this writ petition must be allowed. So far as the question of availing of

alternative remedy of filing an appeal is concerned, it has already been settled that an alternative remedy is not a bar to the entertainment of a writ

petition if the circumstances so warrant. The petitioner has explained that the filing of the appeal would have been a futile exercise and we also

agree with this contention. We are, therefore, of the opinion that the filing of the appeal under Section 17(5) of the aforesaid Act is not fatal to the

petition.

On merits, we find that the petitioner has sufficiently explained the delay in the construction. That he was to eager is evident from the fact that he

got the plan for construction sanctioned. The petitioner had also remitted the extension fee which had been accepted. The respondent authority had

in a number of cases by accepting such fee and extending time to raise the construction to various allottees. We do not find any reason why in the

present case when the fee has been so paid and accepted even during the pendency of this writ petition, the extension of time for construction

could not be granted. We are otherwise also satisfied that once the respondents have accepted the extension fee, the contention that the fee was

accepted under any mistake is not correct. We are, therefore, of the opinion that having once accepted the extension fee the petitioner must be

allowed to raise the construction and the order of resumption, Annexure P. 6, cannot be allowed stand.

We accordingly allow this writ petition and quash the order, Annexure P.6. We, however, make it clear that the petitioner shall complete the

construction according to the assurance given to the Court that the construction shall be completed within a period of six months. We also observe

that the petitioner shall be permitted to raise the construction in accordance with the plans already sanctioned. On furnishing a photostat copy of

the plan for the purpose of record, the original sanctioned plan filed with this writ petition shall be returned to the petitioner. There shall be no order

as to costs in this writ petition.