CWP No.9325 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.9325 of 2008 Date of decision : 5-11-2009 Chhida Singh .... Petitioner VERSUS Haryana Urban Development Authority and others ....Respondents CORAM:- HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sumeet Goel, Advocate, for the petitioner. Mr. Munish Bansal, Advocate, for the respondents. KANWALJIT SINGH AHLUWALIA, J. (Oral) A prayer has been made that impugned order dated 12.12.2006 (Annexure P-9) whereby the building of the petitioner was resumed be set aside along with order (Annexure P-11) where the appellate authority had affirmed order (Annexure P-9). The plot No.411, Sector -17, Faridabad measuring 600 sq. yards was transferred in the name of petitioner on 29.03.1993. In the year 2005, M/s. Bharti Cellular Ltd. (now known as Bharti Airtel Limited) with the consent of the petitioner had erected mobile tower on the roof of the building constructed by the petitioner. This according to the respondent - Haryana Urban Development Authority, Faridabad amounted to violation of terms and conditions of the CWP No.9325 of 2008 -2- allotment as the residential area could not be used for commercial purposes. The further stand of the respondent was that the mobile tower was erected without obtaining requisite permission from the respondents. A notice was issued to the petitioner since he committed the violation and had not acted in conformity with the provisions and the specifications laid by the respondent – HUDA. Vide Annexure P-9 building of petitioner was resumed. Aggrieved against this, the petitioner had filed an appeal. The appellate authority also dismissed the appeal and upheld the order of the Estate Officer, Faridabad. The concluding portion of the appellate authority read as under:- “I have heard both the parties at length on 18.12.07 and gone through the entire record of the case carefully. From the perusal of record, it is revealed that the plot no.411, Sec-17, Faridabad was transferred in the name of appellant on 29.3.93 for residential purpose only, but the appellate has violated the terms and conditions of the allotment letter by installing a tower of Mobile Company (Communicated tower) in his house without obtaining permission from HUDA. The notice under section 17(3) and 17(4) for personal hearing were issued to the appellant before passing the resumption order. The resumption order passed by the Respondent is legal and as per HUDA policy. During the hearing, the counsel of appellant has submitted copy of order passed by the Hon’ble High Court of Punjab and Haryana at Chandigarh passed in CWP No.8627 of 2004 titled as Cellular Oprs. Assocn. of India & ors. Versus Jagbir Singh & ors. and also submitted the copy of order of the Hon’ble Supreme Court of India. The appellant is not a party in the case CWP No.9325 of 2008 -3- pending before Hon’ble Supreme Court of India. Moreover, till date he has not filed any application for impleading as a party as such these orders are not applicable. Hence, there is no merit in the present appeal and the same is hereby dismissed.” Counsel for the petitioner has placed reliance upon Annexures P-14 and P-15 to say that question whether an erection of mobile tower will amount to the violation of the terms and conditions of the allotment or not, is pending for consideration before Hon’ble Apex Court. However, counsel for the petitioner had submitted that since he had constructed a house for his residence and mobile tower was allowed to be erected by Bharti Airtel Limited to supplement his income, petitioner is willing and ready to forego that income and comply with the terms and conditions prescribed by respondent – HUDA and therefore to save his roof he had removed all the violations. Assertion of the counsel that violation has been removed, was noticed by the court. Taking this contention of the counsel into consideration, this court on October 26, 2009 had passed the following order:- “Counsel for the petitioner submits that the alleged violation has been removed and in case fresh inspection is carried by the respondents, they will be satisfied that the violation is not existing at the site. Mr. Munish Bansal prays that time may be granted to verify the statement made by counsel for the petitioner. Let necessary inspection be carried at the earliest. No coercive action will be initiated against the petitioner till the next date of hearing. CWP No.9325 of 2008 -4- Case to come up for further hearing on 5th November, 2009. Copy of this order, under the signatures of Reader of this Court, be given to Mr. Munish Bansal for onward transmission and compliance.” Today, Mr. Manish Bansal, Advocate appearing for respondent – HUDA has submitted the report of the Junior Engineer (Survey) Faridabad along with communication received by him from the Estate Officer, HUDA, Faridabad. The copy of the communication along with the report is taken on record. As per the report, mobile tower has been removed by the petitioner. Counsel for the petitioner has relied upon various judicial pronouncements to say that resumption of house cause extreme hardship and the authority should take recourse to the resumption as a last resort. Counsel further submitted that for his act of omission or commission, petitioner is ready to compensate respondent authorities as their time, manpower and energy has been wasted to make petitioner comply with the terms and conditions of the allotment. This court is of view that resumption of house is a very harsh step and shall deprive any person, who has built his house for his living, from the shelter and refuge. Therefore, order of resumption ought to be set aside. At the same time, to balance the equities, the authorities who have performed necessary duties of watch and ward to make erring house owner compliant with the specifications, ought to be compensated. Therefore, the order of resumption is set aside CWP No.9325 of 2008 -5- provided petitioner deposit Rs.1 lac towards compensation charges to Haryana Urban Development Authority. (KANWALJIT SINGH AHLUWALIA) 5-11-2009 JUDGE manju