Shri Gopal Prasad Shastri And Anr. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1967 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Rule.

2. With the consent counsel for the the parties the matter is taken up for final disposal.

3. Petitioner No. 2- Foundations was allotted plot No. 8, Institutional area, Sector IV, R.K. Puram, New Delhi on 23.2.1972 and an agreement to lease was executed on 10.8.1972. The plans for construction on the plot was sanctioned by the Municipal Corporation of Delhi on 22.3.1979.

4. Certain inter se disputes and problems arose between the parties as it was the contention of petitioner No. 2 that there was municipal water pipeline passing through the plot of the petitioner as a result of which it was not possible to construct on the property in question. Respondent No. 2 L&DO even issued show cause notice on 2.8.1985 for re-entry of the plot on account of delayed construction which was replied to by the petitioner on 9.9.1985 putting forth their stand on account of pipeline.

5. It is stated in the writ petition that the Municipal Corporation finally agreed to remove the water main pipeline and the plans were also re-validated. It is further stated that the clearance was given by the Urban Arts Commission on 4.5.1987 and the lease rights were restored after inspection of the plot in question on 28.10.1994. The amounts demanded by the MCD from time to time were also deposited as also certain amounts asked for by respondents 1 and 2. On 28.6.1999 the extension of time for construction was granted by respondents 1 and 2 up to April, 2000. It may also be noticed that on 16.8.1999 the plans were re-validated by the Municipal Corporation of Delhi for a period of two years.

6. The aforesaid facts thus make it clear that there was an issue involved of the MCD removing the water pipeline and other issues as a result of which extension was granted to the petitioner from time to time.

7. It is further stated in the writ petition that on 19.5.2000 certain permission had to be obtained from the Tree Officer in view of the trees which had grown on the vacant plot. A reference has also been made to the fact that some unauthorised squatters outside the boundary wall of the plot in question were interested in preventing the petitioner from carrying on the construction and continued to make complaints and even filed a public interest litigation making allegations against the foundation that it was trying to grab the plot. On 9.6.2000 the petitioner made a request to respondents 1 and 2 for extension of time for completion of construction by a period of one year keeping in mind that the plans were re-validated by the MCD up to August 2001. The unauthorised kiosks, squatters outside the wall of the petitioner are stated to have been removed on 8.11.2000. It is stated that they continue to come back to the site.

8. The present petition has been filed in view of the fact that respondents 1 and 2 refused to accede to the request of the petitioner for extension of time for construction and on 3.10.2000 sought to cancel the allotment in favor of the petitioner without even giving a show cause notice. The petitioners replied to this on 12.10.2000 and attempts were also made to physically take possession of the plot but the same was resisted by the petitioner. The sanction of the plans granted by the MCD were also withdrawn as a result of the re-entry of the plot in question.

9. The petitioner has prayed for quashing of the order dated 3.10.2000 as also of the show cause notice dated 30.3.2001 issued by the MCD. The petitioner has further sought a writ seeking continuation of the lease rights of the petitioner in respect of the plot in question and for grant of extension of time to complete the construction within a reasonable period of time.

10. The counter affidavit filed by respondents 1 and 2 states that the petitioner has delayed construction over a long period of time which should have been completed within a period of two years from the date of handing over of the possession and that period expired in November 1974. Thereafter number of extensions had been granted from time to time to petitioner No. 2 for completion of construction. It is further stated that no construction had been carried out over this long period of time and the very purpose of making an allotment of such institutional land was defeated by the non-construction and non-utilisation of the plot. It is however, not disputed that extension was granted up to April, 2000. The said respondents have also made a reference to an office order dated 15.7.1998 wherein it was prescribed that extension should not be granted for more than 5 years by the L&DO and thereafter the extension shall only be with the approval of the Ministry, the maximum period being specified as 10 years.

11. The original records have also been produced before me relating to the plot in question and nothings have been shown to state that in fact no construction was carried out even up to June, 2000 and it is only when the said respondents sought to cancel the plot in question the construction has been raised.

12. The stand of the MCD is that it had sanctioned the plan but once the plot was re-entered, the sanction could not continue.

13. I have considered the submissions advanced by learned counsel for the parties.

14. The pleadings of the petitioners show that there were issues arising from the water pipeline of the MCD which has delayed the matter of construction for number of years. That appears to be the reason for grant of extension of time by respondents 1 and 2 for construction on the plot in question. The said respondents would have considered all the issues in question, claims and the request of the petitioner before granting extension till April, 2000. It is also relevant to note that there were proceedings launched by the squatters outside the plot in question to prevent construction. This was obviously with a vested interest since these people were sought to be removed. However, during the pendency of these proceedings filed by the squatters the lease itself was cancelled.

15. A reading of the original file also shows specifically from the noting dated 2.8.2000 that complaints were received from the same association of squatters being the Fruit Sellers Association who had made an allegations of grabbing of the land by petitioners. The fact however, remains that the petitioner had valid allotment in their favor and had paid the amount and thus there would be no question of land grabbing of the plot in question. Not only this charges were accepted from time to time to respondents 1 and 2 as also respondent No. 3 for extension of period for construction and for sanction of plan. In my considered view the matter insofar as the period prior to April, 2000 does not need to be looked into in a greater depth in view of the fact that respondents 1 and 2 had themselves granted extension up to April, 2000. It is also relevant to note that MCD had granted sanction of plan which was valid till August, 2001. The communication addressed by the petitioner sought the extension for a period of one year from June, 2000. In my considered view extension already having been granted till April, 2000 and the MCD granting extension till August 2001, it would have been reasonable and fair to grant extension to the petitioner up to period till August, 2001. It my also be noted that a part of the construction was completed up to the first floor level and the second floor construction of pillar was in progress. There is however, some disputes as to at what stage it was carried out since learned counsel for respondents 1 and 2 contends that the same was post June, 2000. The action for cancellation was taken in October, 2000 and admittedly without any show cause notice in respect of the same though the time period initially granted had expired.

16. The position present today is that part of the construction had been completed and the petitioner was requesting only for a period of one year extension. Since no other impediment remains the petitioner certainly would not be entitled to an extension beyond the said period of time as it cannot be an indefinite process of grant of extension. In the facts of the present case, I am thus of the considered view that the petitioner was entitled to extension for construction up to August, 2001 and should thus have been granted an extension of one year sought by the petitioners.

17. Learned counsel for the petitioners fairly concedes that no further extension will be sought for by the petitioners and in case of failure on the part of the petitioners to construct and complete the building within one year the plot can be re-entered by respondents 1 and 2.

18. A writ of mandamus is thus issued quashing the order of 3.10.2000 of respondents 1 and 2. The said respondents are directed to calculate and intimate to the petitioners the charges for extension of period of one year. The needful be done within a period of two weeks. It is made clear that the charges to be so calculated are only for extension of time period for construction treating the lease as having been restored. The petitioner shall deposit charges within a period of two weeks thereafter.

19. A writ of mandamus is further issued to respondent No. 3 to re-validate the plans of the petitioner within a period of four weeks form today and if any charges are to be paid by the petitioner for the same, the same should be intimated to the petitioner within the same period of time. The petitioner shall pay the charges within two weeks thereafter.

20. It is made clear that the petitioner shall carry out construction within the period of one year from the grant of such sanction and in case the petitioners fail to construct within the said specified period of time, it will be open for respondents 1 and 2 to take out proceedings in accordance with law for re-entry and re-possession of the plot in question.

21. Writ petition stands disposed of in the aforesaid terms leaving the parties to bear their own costs.

22. dusty to parties.