MONIKA ABBI Vs. STATE OF HARYANA

JUDGEMENT

(1.) The aforesaid presence is being recorded through video conferencing since the proceedings have been conducted in virtual court.

(2.) Present petition has been filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari for quashing of order dated 30.03.2021 (P-17) passed by respondent No.2/Estate Office (HSVP), whereby Occupation Certificate granted towards the petitioner's house was revoked by respondent No.2 in complete violation of principles of natural justice as well as in violation of the Haryana Building Code 2017 (for short "Code 2017") (P-9) as well as quashing of Public Notice dated 18.01.2021 (P-13) issued by respondent No.2, the same being against the provisions of Code-2017.

(3.) Brief facts of the case are that initially the plot No.425, Sector-51, Gurugram, measuring 76.795 Sq. Mtrs. (826.6 Sq ft) was allotted to Ramesh D. Behal by the Haryana Urban Development Authority (for short, HUDA) vide conveyance deed dated 10.01.2013, pursuant to which, re-allotment was issued by HUDA in the name of Mr. Ramesh D. Behal. Subsequently, the property was transferred to Smt. Krishna Kapoor by the original allottee vide sale deed dated 05.03.2013 as a free hold property, according to which, re-allotment was duly issued by HUDA in the name of Krishna Kapoor. Thereafter, the entire built up independent residential basement and ground floor was transferred by Smt. Krishna Kapoor in favour of her daughter, namely, Konika Kapoor on 10.09.2019 and the 2nd floor with exclusive roof rights to the petitioner. Additionally, the 1st floor was sold to one Mr. Saurabh Mahendru. In this way, the petitioner became the owner of the suit property vide transfer deed dated 04.06.2015 issued in her favour by her mother. It was inadvertently mentioned that the petitioner is the owner of Vi share of the suit property. However, vide rectification deed dated 01.09.2016, the said error was rectified. Further, vide rectification deed dated 01.04.2021, it was specifically stated that the petitioner shall have exclusive roof rights and rights of further construction on the 2nd floor. Prior to the transfer made in the name of the petitioner, building plan was approved by respondent No.2 on 12.08.2013 and thereafter, Occupation Certificate was issued to the petitioner's mother vide letter dated 21.04.2015. Subsequently, respondent No.2 issued allotment offer for 3 separate floors including ground floor in accordance with the earlier norms. Re-allotment letter for the independent 2nd floor of the suit property was issued by respondent No.2 in accordance with HUDA-1997 as well as Haryana Urban Development Authority (Regulation) 1979. Petitioner's mother sold the rights of 1st floor to Mr. Saurabh Mahendru and his wife Nidhi Mahendru and the petitioner retained rights of the 2nd floor as well as terrace to the exclusion of Mr. and Mrs. Mahendru. The entire built up independent residential basement and ground floor was transferred by Krishna Kapoor in favour of her daughter namely, Konika Kapoor on 10.09.2019. Since, the petitioner's mother was in talks to sell one of the floors to a 3rd party, it became imperative in 2017 to affix an additional door after the 1st floor segregating the 2nd floor and the terrace floor for security. Additional, in terms of the Code 2017, a small room as well as attached toilet has been constructed on the terrace keeping the height below 15 metres while remaining within the prescribed FAR limit. On 28.12.2020, Mr. and Mrs. Mahendru owner of the 1st floor started harassing the petitioner and filed frivolous complaints against her before respondent No.2. On 18.01.2021, a public notice was posted outside the office of respondent No.2 to state that wherever stilt is not constructed, in those cases, only ground plus two floors are allowed and no construction is allowed on terrace, thereby virtually debarring any construction on the terrace. Subsequently, a show cause notice dated 18.02.2021 (Annexure P-14) was received by the petitioner for revocation of the Occupation Certificate on account of illegal encroachment on stair case and construction on terrace, in accordance with the provisions of Code 2017. It was also mentioned in the notice that a personal hearing can be claimed within 15 days or the occupation certificate will be revoked. The petitioner replied to the notice dated 18.02.2021, vide letter dated 03.03.2021 explaining her grievance and submitting that any construction made was in accordance with the Code 2017 and if not then the petitioner be allowed to get the same compounded. Thereafter, the petitioner was waiting to be granted an opportunity of personal hearing but, respondent No.2 vide order dated 30.03.2021 revoked the Occupation Certificate for the suit property without granting any opportunity to her and without considering the reply dated 03.03.2021.