S.L.J. Investments Pvt. Ltd., New Delhi vs Haryana Urban Development Authority

G.S. Singhvi, J.

This case is illustrative of the widespread malaise prevailing in the working of Haryana Urban Development Authority (hereinafter described as ''HUDA'') which enables the private builders to violate the building regulations in connivance with the officials/officers of the organisation.

On the basis of highest bid of Rs. 60,50,000/ given by it in the open auction held in 1995 the petitioner was allotted SCO No. 173, Sector 5, Panchkula. Vide memo AnnexureP.2 dated 12.12.1995, the Estate Officer, HUDA, Panchkula communicated approval to the fresh building plans submitted by the petitioner. About four months thereafter, the petitioner submitted application AnnexureP.3 for issuance of DPC approval certificate. When the concerned Sub Divisional Engineer inspected the site for the purpose of finding out whether the petitioner has made construction as per sanctioned building plan, he found that basement has been constructed under the public corridor in violation of the sanctioned building plan. On the basis of his report, the Estate Officer wrote menos dated 24.4.1996, 13.8.1996 and 10.9.1996 (AnnexureR.1 to R.3) to the petitioner requiring it to remove the said violations. The petitioner did not remove the violations. Instead, it wrote letters AnnexuresP.5 and P.6 stating therein that the construction has been made in accordance with the sanctioned building plans.

It also appears from the record that the petitioner had not only made construction in violation of the building plan but also not paid the instalments. This has led to the issuance of notice dated 12.3.1997 under Section 17(1) of the Haryana Urban Development Authority Act, 1977 (hereinafter described as ''the Act'') for payment of the outstanding dues. This was followed by notice dated 8.1.1998 issued under Section 17(2) of the Act requiring the petitioner to deposit dues amounting to Rs. 49,65,695/ and extension fee amounting to Rs. 16,500/. To the last mentioned notice, the petitioner sent reply dated 24.3.1998 and reiterated its request for issuance of DPC certificate. Upon receipt of this reply, the Estate Officer wrote memo AnnexureR.4 dated 21.4.1998 and asked the petitioner to remove the violations pointed out in the inspection report. After about 11/2 months, the Estate Officer served notice AnnexureR.5 dated 9.6.1998 upon the petitioner requiring it to remove violations as a condition precedent to the issuance of DPC certificate. In that communication, it was also indicated that the sanctioned plan does not contain basement beneath public corridor and the record of his office appears to have been tampered with.

The petitioner has charged the Estate Officer, HUDA, Panchkula of acting arbitrarily by stating that the officer concerned does not have any authority to withhold DPC certificate in view of the fact that the construction has been made strictly in accordance with the sanctioned building plan. Notice issued under Section 17(2) of the Act has been challenged on the ground of lack of jurisdiction.

The averments made in the written statement contain a candid admission by the respondents that one or more of its own officials have connived with the petitioner and the sanctioned plan has been tampered/got tampered by the petitioner to justify the construction of basement beneath the public corridor in violation of Regulation 3 of the Haryana Urban Development Authority (Erection of Building) Regulations, 1979. This has been substantiated by making the following statement in paragraph 7 of the written statement :

"7. That in reply to para 7 of the writ petition, it is submitted that according to Note No. 6 on drawing No. 513/1800, Part drawing No. 3, drawing bearing No. 513/1800, drawing No. 2 which provides that basement is obligatory but if it is to be constructed under the public corridors prior approval has to be taken. The contents of this remaining para are not admitted being incorrect. In fact that petitionerfirm has somehow in connivance with some officials of the office of respondent No. 3 has managed to show basement beneath corridors (front and rear) in the drawing No. 2 and Job No. 513/1800 by making addition in the drawing. When the building plans were sanctioned the respondents had not granted approval for construction of basement under the front and rear public corridors of the S.C.O. allotted to the petitioner. The Estate Officer vide letter dated 9.6.1998 (AnnexureR/6) has ordered a detailed enquiry by the Vigilance Wing of H.U.D.A. The tampering and additions in the drawing No. 2 and Job No. 513/1800 is established from the following facts :

(a) That procedure for submissions of building application and execution of works has been given in PartII of the H.U.D.A. (Erection of Buildings) Regulations, 1979 (hereinafter called the Building Regulations). The submission of the application form for erection or reerection of the building is to be made under Regulation No. 3 of the Building Regulations and according to this any person intending to erect or reerect buildings shall make an application in writing to the Estate Officer accompanied by a site plan, building plan or plans and detailed specifications of the work to be executed. It is further stated that in Clause (ii) of this Regulation that every person giving notice under Regulation1 shall appoint a registered Architect for drawing up of plans and according to Clause (iii) the application, plans and specification shall be signed by the applicant and the registered Architect. The relevant extract of Regulation3 of the Building Regulations is reproduced as under :

"(ii) Every person giving notice under Regulation (1) shall appoint a registered Architect for the drawing up of plans. However, the supervision of erection or reerection of the building may be undertaken by the Architect Engineer.

(iii) The application, plans, and specifications shall be signed by the applicant and the registered Architect. In case where the supervising Architect/Engineering is different from the one who has prepared the designs, the plan shall be signed by both of them."

From the perusal of the above reproduced Regulation No. 3, it is clear that every person should appoint a registered Architect for drawing up of the plans. The petitioner had engaged Mrs. Jyoti Chaufla as the Architect. When the mischief regarding the tampering of the drawing No 2 and Job No. 513/1800 came to the notice of the answeringrespondent, the Estate Officer enquired from the said Architect about the addition of basement beneath the corridor in the drawing No. 2, Job No. 513/1800. She intimated to the office of the answeringrespondent vide her letter dated 3.6.1998 AnnexureR.7 that no basement was shown under the public corridors at the time when the same was stamped and signed by her. Therefore, it is very clear that the petitioner added the basement beneath the public corridors in one of the drawings bearing No. 2 and Job No. 513/1800 at his own level without getting the same stamped/approved from the architect engaged by it. Hence this is in violation of Regulation No. 3(ii) of the Building Regulations as the petitioner is not entitled for submitting the plan at his own level until he engages the Architect for the same. This also shows that the basement beneath the public corridors has been added by the petitioner in one of the drawings No. 2, Job No. 513/1800 after getting the plans sanctioned from the Estate Officer, H.U.D.A. in connivance with certain officials of the Estate Officer.

(b) That if the basement under the public corridors had been approved as shown in the drawing No. 2, Job No. 513/1800 (by tampering the same), the section of basement beneath public corridors would also have been shown and added in section AA of drawing No. 2, Job No. 513/1800. In the drawing No. 8 no basement under public corridors have been shown approved rather drawing No. 8 has been approved without basement beneath the corridor. From drawing No. 8 also it is very clear that the answeringrespondent never approved the basement beneath under the public corridors rather the plans were approved without public corridors.

(c) That Sh. Karam Chand, the then Junior Engineer, reported on the plans that there is no change in the standard drawing. These standard drawings are issued by the department of Town Planning and Architecture of H.U.D.A. The addition of basement beneath the public corridors with red colour ink in the original blueprint of drawing No. 2, Job No. 513/1800 makes changes in the standard drawing. Had there been any changes in the standard drawing the Junior Engineer would have clearly reported about the same i.e. of basement beneath public corridors. From this it is clear that there was no change in the standard drawing at the time of approval of the building plan.

(d) That there is a difference of the colour of red ink in the building portion of plan and part of portion of basement beneath public corridors in drawing No. 2. This shows that the basement beneath public corridor had been added after the approval of the building plan.

(e) That the request for prior approval made in the application from (A) at Serial No. 4 has not been added by the Architect which is clear from her letter AnnexureR.7. The addition of the request for prior approval regarding the construction of basement beneath the public corridor has been added by the petitioner after the sanctioning of the plan in connivance with some of the officials of the Estate Office."

Along with the written statement, the respondents have filed AnnexureR.1 to R.7 to show that when the plan was sanctioned there was no basement beneath the public corridor and later on, the same was tampered to show as if the basement had been sanctioned.

In the replication, the petitioner has reiterated that the disputed construction is in accordance with the sanctioned building plan. As regards the letter AnnexureR.7 written by its own Architect, the petitioner has stated that the same appears to be the result of manipulation by the respondents. It has also raised the plea of discrimination by stating that the respondents are objecting to the construction made on SCO No. 173 although the allottee of SCO No. 178, Sector 5 has been allowed to raise basement under the public corridor.

We have heard Shri S.S. Bedi and Shri O.P. Sharma and have carefully gone through the record of the case. We have also perused the original plan which Shri Sharma produced during the course of hearing.

A careful reading of the respective pleadings reveal that the parties have made diametrically opposite statements regarding the sanction of building plan with basement beneath the public corridor. While the petitioner has asserted that the basement beneath the public corridors existed at the time building plan was sanctioned, the respondents have categorically stated that the same did not exist at that time. They have also made an emphatic assertion that the petitioner has manipulated the tampering of sanctioned plan in connivance with some of the officials/officers of HUDA. After having minutely examined the records, we are inclined to agree with Shri Sharma that basement under the public corridors did not exist at the time of sanction of the building plan and the same has been tampered with in connivance with the officials/officers of HUDA to justify the petitioner''s act of raising construction in violation of the sanctioned building plan. The record produced by the respondents show that vide memo No. 9909 dated 13.8.1996 (AnnexureR.2), the Estate Officer had written to the petitioner that the basement under public corridors is not allowed as per HUDA Byelaws. Letter AnnexureR.7 dated 5.6.1998 written by the Estate Officer to the petitioner sufficiently proves that the basemens did not exist beneath public corridor at the time of sanction of the building plan. For reference purpose, AnnexuresR.5 and R.7 are reproduced below :

"AnnexureP.5

From

Estate Officer

HUDA, Panchkula.

To

M/s. S.L.J. Investments Private Ltd.,

A43, Gulmohar Park, New Delhi110049.

Memo No. 6047, Dated 9.6.1998.

Sub : Issue of DPC certificate in respect of SCO No. 173, Sector5, Panchkula.

Reference, Your letter No. Nil, dated 21.5.1998.

Vide letter under reference, you have sent the photocopy of basement plan, wherein it has been shown that basement beneath public corridors has been shown as approved. In this connection, it is intimated that the record of this office does not give any indication of approval of the basement beneath public corridors. It seems that the part record of this office has been tampered by some one in connivance with the official of this office for his vested interests. The matter is being investigated thoroughly.

Hence, if you are interested in taking the DPC certificate then it is advised to dismantle the slab laid in public corridors and lay the normal flooring in that portion after sand filling and same as the same is not allowed as per HUDA building eyelaws.

Sd/

Estate Officer

HUDA, Panchkula.

8.6.1998.

AnnexureR/7

S.D.E. (s)2823, dated 5.6.1998.

AKRITI ARCHITECTS

Engineer Valuers, Surveyors and Loss Assessor and Const. Consultants.

OFFICERESIDENCE : 1032P, Sector4, Panchkula

8359/5.6.1998.

To

The Estate Officer,

HUDA, Panchkula.

Sub : Sanctioning of Building plan of S.C.O. No. 173, Sector5, Panchkula.

Dear Sir,

With reference to your verbal enquiry regarding the sanctioning of building plan of S.C.O. No. 173, Sector5, Panchkula, it is intimated that the said building plan was submitted by me as an Architect for sanction from the competent authority. In the drawing No. 2, Job No. 513/1800 containing basement plan, no basement was shown under the public corridor at time when the same was stamped and signed by me. Now I have come to know that in the sanctioned plan the basement beneath the public corridors has been shown approved in front and back side of the S.C.O. No. 173, Sector5, Panchkula. It is not in my knowledge whether it was added before submitting the plan in the Estate Officer or afterwards.

Thanking you,

Yours faithfully,

Sd/

H. No. 1032, Sector4,

Dated : 3.6.1998. Panchkula."

The petitioner has tried to rebut the contents of AnnexureR.1 by stating that the letter written by the Architect does not represent the correct facts, but we do not find any valid reason to accept its assertion. In terms of Clause 16 of the letter of allotment issued in form "CC" prescribed by Regulation 6(2) of the Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978, the petitioner was required to complete the construction within two years from 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. Regulation 3 of the 1979 Regulations lays down that any person who intends to erect or reerect any building shall make an application in writing to the Estate Officer in form B.R.I accompanied by the specified documents. Such person is also required to appoint a registered Architect for drawing up the plans. The application, plans and specifications are required to be signed by the applicant and the registered Architect. Regulation 8 of these regulations empowers the Estate Officer to pass an order either sanctioning or rejecting the application submitted for erection or reerection of the building. Regulations 12 and 13 lay down the parameters for construction of building. Regulation 85 prescribes the condition of eligibility of registration of a person as Architect. In view of these provisions, the petitioner was duty bound to submit building plan and other documents duly signed by the registered Architect and there is no dispute that Akriti Architects had submitted the building plan on behalf of the petitioner. In AnnexureR.7 the Architect has categorically mentioned that the building did not contain basement under the public corridor at the time of stamping. Therefore, there is no reason to ignore the contents of letter AnnexureR.1. Rather, we are firmly of the opinion that the letter written by the Architect completely demolishes the petitioner''s claim that the basement existed beneath the public corridor at the time of sanction of the building plan. The original plan produced by Shri Sharma also supports the conclusion that the sanctioned building plan has been tampered with to support the case set up by the petitioner.

For the reasons mentioned above, the writ petition is dismissed with costs of Rs. 5,000/. The Chief Administrator, HUDA, Panchkula is directed to get a thorough investigation made into the tampering of the record so that the official/officer who may be found guilty can be brought to the book and adequately punished.