Surinder Nehra vs Haryana Urban Development Authority and Others

Permod Kohli, J.—Keeping in view the controversy involved and with the consent of learned counsel for the parties, this petition is being disposed of at motion stage itself. The petitioner is aggrieved of show cause notice dated 19.5.2008 (Annexure P-30) issued u/s 17(1) of the Haryana Urban Development Authority Act, 1977 asking the petitioner to remit Rs. 39,25,124/- upto 30.4.2008, to make payment of instalment/lease rent, enhanced compensation and extension fees. He has been further asked to show cause as to why a penalty of Rs. 39,251/- i.e. 10% of the amount due to the HUDA be not imposed upon him.

It may be necessary to notice the brief factual background leading to he filing of this petition. Respondent No. 4- Indian Oil Corporation Limited invited application for allotment of retail outlet of the Company in the Municipal Limits of Sirsa on the Dabwali Road, Sirsa. The petitioner applied for the allotment on the basis of the interview conducted. The petitioner was declared successful. Consequently, a letter of intent was issued to the petitioner. Apart from performing various other covenants contained therein, he was required to procure land measuring 36.60 x 30.48 sq. meters within four months from the date of the communication. The plot should be either owned or on lease for a period of 15 years with a further condition of creating sub lease in favour of respondent No. 4-Company. HUDA had earlier taken a policy decision for allotment of land for the oil Companies on 13.5.1992. Under the aforesaid policy and on the application of the petitioner, land was allotted to him for a period of 15 years, vide lease deed dated 25.4.1994 (Annexure P-4) on fixed amount of Rs. 5000/- per month, subject to revision after five years. This lease was for a period of 15 years, as per the requirement of respondent No. 4-Company. It also contained a covenant for creation of special lease in favour of the Oil Company. During the currency of the lease, petitioner received Memo No. 3044 dated 16.4.2002 regarding revision of the rates. The petitioner vas asked to pay an additional amount of Rs. 15,70,781/- over due from April, 1999 to Feb., 2002. Another amount of Rs. 1000/- per month was also demanded, if the pollution checking machine has been installed at the petrol pump site. It was followed by another communication dated 19.4.2002 repeating the demand of revised rates with the following details:-

One filling point of petrol & Diesel Rs. 25,500.00 per month.

For every additional Point of petrol/diesel 12.5% extra will be charged as per policy.

3.50% extra will be added for site situated at National Highway.

Not only this, even a monthly rent of Rs. 5000/-was also revised. Thereafter, the petitioner made a representation dated 30.4.2002 opposing arbitrary revision of the rental etc. In response to the aforesaid representation, the petitioner was informed vide letter dated 30.5.2002 that Estate Officer is not competent to reconsider the rate of rent. The petitioner deposited an amount of Rs. 1.00 lac alongwith the representation dated 12.6.2002. Vide letter dated 6.8.2002, the petitioner was informed that the rate of rent was reduced from Rs. 25,500/- to Rs. 22,531/- per month for one filling point of petrol and one filling point of Diesel and for every additional point of petrol and diesel, 12.5% extra will be charged and 50% extra will be added for the sites situated at the National Highway. The total demand on this count was calculated at Rs. 15,26,330/- upto July, 2002. In the meanwhile, another notice was served u/s 17(1) of the Haryana Urban Development Authority Act, 1970 for imposing a penalty of Rs. 1,52,633/- (Annexure P-15). The petitioner has challenged the above mentioned demand in CWP No. 14512 of 2002. This writ petition came to be decided by this Court vide order dated 11.11.2003 (Annexure P-17) and the orders impugned therein were quashed with liberty to the respondents to pass fresh order, in accordance with law, after hearing the petitioner. Apart from the amount earlier deposited by the petitioner, the petitioner also undertook to deposit another amount of Rs. 3.00 lacs with the respondents. The Estate Officer passed another order dated 26.3.2004. As a consequence of the decision of the High Court holding that the filling; Station is situated at National Highway, the matter was referred to the higher authority by the Estate Officer. In the meanwhile, another show cause notice u/s 17(10) of the Haryana Urban Development Authority Act, 1977 came to be issued by the Estate Officer, HUDA/Sirsa to respondent No. 4-Oil Company. The petitioner filed various representations against the aforesaid demand and without deciding these representations, the petitioner was asked to deposit the amount. Finally, respondents have passed the impugned order dated 19.5.2008 (Annexure P-30) referred to here-in-above which is under challenge in the present petition. The entire stand of the respondents is that at the time of allotment of land to the petitioner, policy dated 13.5.1992 (was_ in operation. However, subsequently, the Cabinet approved another policy dated 27.3.1997. It was only on the basis of the new policy that the demand has been raised against the petitioner. All other factual averments are, however, admitted. It is contended that on the basis of the 1997 policy, additional amount of Rs. 15,17,781/- was due and payable by the petitioner. It is further case of the respondents that on account of the default on the part of the petitioner, the amount payable has been revised by increasing the percentage of the rental of the plot from 2.5% to 5% and since site is on the National Highway, the rent is required to be increased by 50%.

It is admitted case of the parties that at the time of allotment, 1992 policy was in operation and the lease deed was executed between the petitioner and the HUDA on 25.4.1994 (Annexure P-4). Parties are governed by the aforesaid lease deed. 1997 policy came to be formulated much later when the lease had already been granted to the petitioner. This policy was formulated pursuant to the Cabinet meeting held on 27.3.1997. From the policy (Annexure R-l), it appears that the intention was for introduction of the new policy for future. It could not have been applied to the lease already granted. On the basis of the aforesaid policy, the Chief Administrator, Haryana Urban Development Authority issued instructions to all the Administrators, HUDA and other functionaries, vide Memo dated 6.5.1997. Even from the perusal of this memo, it appears that the policy was to be applied to left over/unsold commercial plots to be sold and other plots that may be sold by auction or otherwise in future. Therefore, the demand by the HUDA from the petitioner for revision of the rental or any other demand on the basis of 1997 policy is totally uncalled for and is thus liable to be set aside. This petition is accordingly allowed. Impugned notice dated 19.5.2008 (Annexure P-30) and all other demands are hereby quashed, except that the petitioner would be liable to pay any amount that may be due and payable, in accordance with the 1992 policy.