Haryana Urban Development Authority and another vs Shashi Bansal and others

M.L. Singhal, J.—Smt. Shashi Bansal and others instituted suit for permanent injunction against Haryana Urban Development Authority (hereinafter referred as HUDA) through its Chief Administrator directing the latter to provide street light and develop parks in the Colony in which plots No. 3734, 1966, 2200 and 3118 are situated and further to refund the amount of interest and nonconstruction fee, which they have charged from them and for perpetual injunction restraining them from demanding interest and nonconstruction fee against the said plots.

It was alleged in the plaint that plot No. 3734 was allotted to Smt. Shashi Bansal vide reallotment letter No. 1203 dated 13.3.1992 on the same terms and conditions as contained in allotment No. 136 dated 7.1.1983. Plot No. 1966 was allotted to Smt. Santro vide reallotment letter No. 3220 dated 15.9.89 on the same terms and conditions as incorporated in the allotment letter No. 1591 dated 23.4.81. Ranbir Singh Porus was allotted plot No. 2200 vide allotment letter No. 934 dated 9.4.81. Bimla Arora was allotted plot No. 3118 vide allotment letter No. 1161 dated 15.3.85. Allottees were required to pay 1/4th amount of the price within 30 days of the issue of allotment letter. Remaining amount was to be paid in six yearly instalments. It was agreed by the HUDA that the allottees will be allowed to pay instalments without interest upto the time of carrying out of development works in the area where these plots were situated. It was also agreed that HUDA will offer possession of the plots to the allottees (plaintiffs) after the development works were completed in the Sector/Sectors where these plots were located. Thereafter, the allottees (plaintiffs) were to be liable to pay interest on the balance amount of the allotment money at the rate of 10% of per annum. It was alleged in the plaint that HUDA had charged interest and nonconstruction fee from the allottees without completing the development works in the area. This act on the part of HUDA was illegal. It was further alleged in the plaint that in the development works to be carried out by HUDA was included the laying of roads, sewerage, the making of provision of water supply, street light and parks. In the price mentioned in the allotment letter was included the cost of the land and the cost of the development work to be carried out of in the Colony and other administrative expenses. No amount could be charged separately for carrying out development works. No development works were carried out by HUDA in the Colony, in which these plots are situated. HUDA charged interest from the allottees (plaintiffs) illegally. HUDA charged nonconstruction fee illegally. Nonconstruction fee was chargeable if after possession was delivered, no construction was raised within 2 years of delivery of possession to the allottees. Interest and nonconstruction fee were charged by HUDA from them under threat of resumption of these plots.

HUDA contested the suit. It was denied that development work was not carried out. Offer of possession was made after the completion of the development works. It was urged that the plaintiffs are bound to pay interest after the offer of possession. This area was fully developed and it was after the completion of development works that offer of possession was made. All the civic amenities have been provided to the allottees. Plaintiffs were bound to pay nonconstruction fee because they had not raised construction within 2 years of the date when possession was offered to them which was mentioned in the letter of allotment. Plaintiffs were bound to pay interest after the offer of possession which is also mentioned in the letter of allotment.

On the pleadings of the parties, the following issues were framed by the trial Court :

Whether the defendants have not carried out the development work in the area of location of the plots of the plaintiffs as alleged in the plaint, if so, its effect ? OPP.

Whether the defendants were not entitled to recover interest on the balance amount of the price of the plots at the rate of 10% per annum only without completion of the development work and offer of possession as alleged in the plaint ? OPP

Whether the plaintiffs are not liable to pay nonconstruction fees as alleged in the plaint ? OPP

Whether the civil court has no jurisdiction to try the suit in view of Section 50 of HUDA Act, 1977 ? OPD.

Whether the suit is barred by limitation ? OPD

Whether the suit is bad for nonjoinder and misjoinder of necessary parties ? OPD.

Whether the suit is not maintainable in the present form ? OPD

Whether the plaintiffs have no cause of action ? OPD

Whether the plaintiffs have alternative remedy u/s 17(5) of the HUDA Act, 1977 ? OPD

Relief.

At the conclusion of the trial, plaintiffs'' suit was decreed by Addl. Civil Judge, Senior Division, Jind vide judgment and decree dated 22.3.96 for mandatory injunction directing the defendants to complete the development works in the area where these plots are located and further they shall not raise demand for interest, nonconstruction fee till the development works are carried out and possession is delivered to them and further they shall refund the interest and nonconstruction fee, which they had charged from them, in view of his findings, that HUDA has not carrying out of development work in the area where these plots are located and they could not raise demand for interest till development works were completed and possession was offered to them. It was also found that nonconstruction fee would not be asked for a period of 2 years from the date of offer of possession and carrying out of development works. It was found that these plots had not been developed and, therefore, offer of possession could not be made and no interest could be charged on the balance amount of the price of the plots. It was also found that offer of possession without development of the plots was no offer. Civil Court was found to have jurisdiction into the matter as the demand of HUDA was void abinitio and nonest being not sanctioned by the Haryana Urban Development Authority Act, 1977.

Aggrieved from this order of Additional Civil Judge, Senior Division, Jind dated 22.3.96, HUDA went in appeal, which was dismissed by Additional District Judge, Jind vide order dated 6.11.98.

Still not satisfied, HUDA has come up in further appeal to this Court.

I have heard both the sides and have gone through the record.

It was submitted by the learned counsel for the appellantHUDA that HUDA had completed the development works in the area where these plots are located and after this area had been developed, possession was offered to the respondents. It was submitted that the respondents were bound to pay interest on the balance due from them after possession had been delivered to them. It was further submitted that the respondents were bound to pay nonconstruction fee because they had failed to construct houses on these plots within 2 years when possession was offered to them. The expression "development works" has not been defined any where in the HUDA Act, 1977 or the Rules and regulations framed thereunder. In the allotment letter also, the expression "development woks" has not been elucidated. Clause 7 of the allotment letter says that possession of the site will be offered to you (allottee) on completion of development works in the area. In the case of building or undeveloped land, the possession shall, however, be delivered within 90 days from the date of allotment letter. The expression "development" has been defined in Section 2(g) of the said Act which says that "development" with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change, in any building or land and includes redevelopment, Section 2(j) says that "engineering operations" include the formation or laying out of means of access to a road or the laying out of means of water supply, drainage, sewerage or electricity cables or lines or of telephone lines. Learned counsel for the appellants submitted that development stands for carrying out engineering operations over or under the land and the engineering operations have been defined as means of access to a road or laying out of means to water supply, drainage, sewerage or of electricity cables or lines. It was submitted that all these engineering operations as defined under section 2(j) have been completed. HUDA has provided access to the road and laid out the means of water supply, drainage, sewerage and electricity lines and as far as the erection of street lights and completion of parks are concerned, it was not part of the development works. It was submitted that HUDA was required to provide and complete all these basic development works which are necessary for starting construction of the buildings by the allottees. It was submitted that erection of street light and development of parks do not constitute part of the development works and Section 2(e) of the Haryana Development and Regulation of Urban Areas Act, 1975 had defined development works. Development works means internal and external drains, roads and electrical works which may have to be executed in the periphery of, or outside colony for the joint benefits of two or more colonies. Internal development works vide Section 2(i) of the Act means (i) metalling of roads and paving of footpaths; (ii) turfing and plantation with trees of open spaces; (iii) street lighting; (iv) adequate and wholesome water supply; (v) sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal; and (vi) any other work that the Director may think necessary in the interest of proper development of a colony." Provision of basic amenities like drainage, sewerage, adequate water supply, parks and electricity to the allottees is the basic duty of the HUDA as per terms and conditions of the order of the allotment. How could HUDA recover interest from the allottees, when area in which these plots are located was not developed ? How could HUDA call upon the allottees to pay nonconstruction fee when possession had not been offered to them ? Possession could have been offered to them only after the completion of development work was over. Allottees were required to raise construction within 2 years of the date of offer of possession to them and that too after the development works had been carried out in this area. It was held in Baij Nath Garg v. The Chief Administrator, Haryana Urban Development Authority and another, 1995 PLJ 120 : 1995(2) RRR 27 (P&H) that liability to pay interest to HUDA will arise only if the site is offered to the allottee after completing the development works. HUDA was not in a position of offer possession because of noncompletion of development work. Possession of site could be possible only on completion of development works. In CWP No. 7260 of 1989, this Court held that "provision of drainage, sewerage, adequate potable water and parks are the basic amenities. Without the provision of these basic amenities right to life as guaranteed under the Construction is a mere myth and illusory."

It was found as a fact by the two Courts below that HUDA had failed to provide these basic amenities in the area where these plots are located and till these basic amenities are provided, no interest accrued in favour of the HUDA on the balance unpaid amount. It was again found as a fact by the two courts below that no offer of possession could be made to the plaintiff respondents without the carrying out of these development works and if without carrying out the development works any offer of possession was made that was no offer and as such no nonconstruction fee could be asked for.

For the reasons given above, this appeal fails and is dismissed. No order as to costs.