HARPAL SINGH Vs. STATE

JUDGEMENT

(1.) petitioner is holder of residential flat no. 2 on ground floor located at hospital road gandhinagar jammu, acquired from respondent no. 2 on lease hold basis.

(2.) it is stated that allotment of the ground floor was made on higher price and the ground floor flats be declared to have right over portion of the land appurtenant to the flats and up to the pathways. It is further stated that though, the residential flats are yet to be developed fully in terms of its essential features like parking, and sewerage space respondent no. 2 proposed to raise and develop another residential block adjoining the residential building of the petitioner, affecting the living conditions of occupiers of the building including the petitioner. Further contention of the petitioner is that the space available adjoining to the existing flats is of such a small dimension, that it cannot admit construction of any adjoining residential blocks. It was clearly revealed by respondent no. 2 at the time of allotting the flats including that of the petitioner that the area around the existing block will be firstly developed and the additional residential blocks constructed later on. It is also stated that the proposed construction of additional residential blocks on the space existing near residential building was never conceived in the original plan. This being after thought planning, is unfair, unreasonable and detrimental to the living conditions of the inhabitants of the existing flats including the petitioner. The petitioner has therefore, assailed the bona fide and fairness of the respondent no. 2 in constructing the proposed residential blocks on the premises, housing residential building, invoking the writ jurisdiction of this court under article 226 of the constitution of india.

(3.) the stand of the respondent no. 2 in his reply is that while advertising the flats, the petitioner along others applied for allotment and examined the brochure which clearly indicated that three blocks are to be constructed out of which two were of the same construction and 3rd block of different size. It is further stated that the petitioner accepted all the terms and conditions at the time of handing over possession of the flat, after allotment on lease hold basis. The housing board has already modified the scheme and the gap of 29 ft. Was kept on the side of newly under construction block as against of 8 ft. Kept in original approved plan. Even on front side of the block, 20 ft and 6 inches open space has been kept as per the original plan. Further contention of the respondent is that the additional flats are constructed under self finance scheme and the construction work has already been undertaken and culminated up to plinth level. That the proposed additional flats are to be constructed as part of original scheme and in view of the brochure and the agreement entered into with the petitioner at the time of making the allotment of the flats housing the existing building in accepting its terms and conditions. Grievance of the petitioner is stated to be neither bona fide nor genuine. Further stand of the respondent is that the rights of allottees over the appurtenant land is only up to the path-way which are meant for common approach to the flats constructed, and under construction and are within the overall plan. That the scheme for construction of three blocks was indicated in the brochure itself. It is also stated that the approved plan clearly mentions the parking and sewerage space are same and are kept intact. The full development of infrastructure shall be taken only after the completion of the scheme as development costs are to be shared by all the occupants of blocks constructed/under construction. That the modification in the existing plan has already been made and reflected in the revised plan by leaving more space (gap) between the block of the petitioner and the block under construction. That the construction of additional block has been started as per the scheme reflected in the plan approved by the board of directors in the year 1995.