IMAGING SOLUTIONS PVT. LTD. Vs. STATE OF HARYANA

JUDGEMENT

(1.) The petitioner is the allottee-owner of plot No.1 Sector 18, Electronic City, Gurugram admeasuring 1200 Sq meters. Posession of the same was handed over in two stages; 1000 Sq meters was conveyed earlier followed by 200 Sq meters. Building plan dated 22.07.1999 was sanctioned with FAR 75. On 23.03.2001, a registered Lease Deed was executed between the petitioner and respondent No.5 according to which the said respondent was required to raise construction in accordance with the sanctioned plan. The said Lease Deed was for a period of 11 years commencing from 01.06.2000. Occupation certificate dated 01.09.2003 was issued in favour of the petitioner for basement, ground floor, first and second floor and part 3rd floor. While the execution of the lease deed was being negotiated, the petitioner wrote communication dated 17.03.1999 to respondent No.5 representing that construction upto 28000 Sq.ft. (more than 2500 Sq meters) could be made on the plot despite a building plan having been sanctioned for lesser area and the construction could be effected without modification of the sanctioned plan subject to payment of compounding charges. This was followed by communication dated 14.09.1999 to the same effect. Communication dated 14.09.1999 contained an additional representation that respondent No.5 would have the ocassion to purchase the plot at a later date. This representation further finds mention as a term of the registered lease deed. Consequently, in 2002-03 building was constructed over 1000 Sq meters of the plot having a covered area of 2300 Sq meters. The construction was raised by respondent No.5 and it is stated that the said construction was within FAR 250 in accordance with Regulation 13(ii-a) of the Haryana Urban Development Authority (Erection of Buildings Regulations) Regulations 1979 (hereinafter referred to be '1979 Regulations') which was inserted w.e.f. 26.07.2001. Thereafter, compounding fee and external development charges for increased FAR were deposited with Haryana Urban Development Authority (hereinafter referred to as 'HUDA') and this amount was shared by the petitioner and respondent No.5. The petitioner continued to receive rent till July 2006 without any grievance regarding the construction raised by respondent No.5. On 27.07.2006, respondent No. 5 exercised its option to purchase the property but the petitioner refused to sell. The matter of specific performance of agreement to sell, allegedly contained in the registered Lease Deed dated 23.03.2001 was referred to Arbitration in the year 2008 and is still pending. Disputes, thus arose between the petitioner and respondent No.5 and the petitioner complained to HUDA in June 2009 regarding alleged unauthorized construction raised by respondent No.5. This led to issuance of communication dated 13.07.2009 vide which occupation certificate of the plot and building was revoked and 25 days were granted for removal of the unauthorized construction. This communication was addressed to the petitioner alone. Respondent No.5 accordingly challenged the said communication through CWP No. 11065 of 2009. This was decided on 10.11.2010 and the matter was remitted to the Estate Officer, HUDA for decision afresh after compliance with statutory provisions and principles of natural justice. Pursuant to this order, a Show Cause notice dated 08.08.2011 was issued to the petitioner under Section 17(3) of the Haryana Urban Development Authority Act 1977 (hereinafter referred to as 'the Act') for resumption of the building on account of alleged building violations. The petitioner did not appear pursuant to the said Show Cause notice and therefore, order dated 25.10.2011 was passed directing removal of the alleged unauthorized constructions within thirty days. Respondent No.5 was thus forced to approach this Court once again through CWP No. 21307 of 2011 which was disposed of vide order dated 17.11.2011 with libety to the writ petitioner to file a statutory appeal. Demolition was stayed till the decision of the appeal. The appeal was dismissed vide order dated 12.01.2012 necessitating the invocation of revisional jurisdiction of the State Government. Vide order dated 17.04.2012 , the revisional authority set aside the order passed in appeal as well as order dated 25.10.2011 and remanded the matter for a fresh decision to the Estate Officer. Hence, another Show Cause notice dated 28.07.2012 was issued to the petitioner under Section 17(3) of the Act. This time, the said notice was also addressed to respondent No.5.

(2.) After hearing the parties concerned, order dated 26.11.2012 was passed by the Estate Officer directing removal of the alleged building violation within a period of thirty days. Respondent No.5 challenged this order through CWP No. 24050 of 2012. After issuance of notice, the writ petition was disposed of vide order dated 10.12.2012 with liberty to the writ petitioner to file a statutory appeal. The statutory appeal of respondent No.5 was allowed vide order dated 01.10.2014 and the matter was once again remanded to the Estate Officer with a direction to get the structural stability of the building assessed through the Public Works Department. On the same date, the Commissioner, Municipal Corporation, Gurgaon passed an order refusing to issue 'No Objection Certificate' to respondent No.5 regarding fire safety.

(3.) After remand of the matter by the Chief Administrator, HUDA vide order dated 01.10.2014, no action was taken by the Estate Officer concerned till the filing of the writ petition. It appears that on account of this inaction, the petitioner made a representation dated 24.04.2015 under Regulation 11-C of the Haryana Urban Development Authority, (Erection of Buildings) Regulations, 1979, to the Chief Administrator HUDA to demolish the violations made by respondent No.5. Meanwhile, the petitioner filed a writ petition viz CWP No. 6661 of 2015 after filing of the representation dated 24.04.2015 under Regulation 11-C of the Haryana Urban Development Authority, (Erection of Buildings) Regulations, 1979 Regulations which was however, disposed of vide order dated 28.04.2015 directing the Chief Administrator, HUDA to consider the pending representation and pass an order within 4 months.