Civil Writ Petition No. 12445 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Civil Writ Petition No. 12445 of 2009 Date of Decision : 5.5.2011 Harmit Kaur .......... Petitioner Versus Greater Mohali Area Development Authority & others ...... Respondents CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. R.S. Ahluwalia, Advocate for the petitioner. Mr. Harit Sharma, Advocate for the respondents. **** AUGUSTINE GEORGE MASIH, J. (ORAL) It is the case of the petitioner that the petitioner was allotted a residential plot bearing No. 2408, Phase-II, Mohali measuring 500 Sq. yards by the PUDA vide letter dated 30.8.1994 by way of re-allotment. The petitioner could not complete the construction, as per the terms of the allotment letter and, therefore, made a request to the respondent-authorities of PUDA in the year 2000 for submission of the extension fee. The amount at that time was assessed at Rs. 89,500/-, which was duly deposited by the petitioner. Thereafter an application for sanction of site plan for construction was submitted, which was approved on 29.5.2010. As per the requirement of the Civil Writ Petition No. 12445 of 2009 -2- allotment letter and the Punjab Regional and Town and Development (General) Rules, 1995, 25% construction as per the sanctioned site plan was completed by the petitioner leading to the issuance of an occupation certificate dated 22.12.2000. Sewerage connection was also issued on 27.12.2000. In the year 2009, the petitioner applied for a 'No Objection Certificate' from the authorities of the respondent- PUDA so that she could get the plot registered in her name. In pursuance of the said request made by the petitioner, a demand of dues in respect of the plot, for which the petitioner had sought the 'No Objection Certificate', was raised on the ground that the petitioner had to deposit extension fee for construction till 2001 amounting to Rs. 55,150/- vide letter dated 12.5.2009 (Annexure P- 6). This order was challenged by the petitioner by preferring an appeal. The said appeal was not accepted by the respondent- authority, however, the amount was recalculated and the amount came to Rs. 49,434/-, hence, this order, which is under challenge in the present writ petition. Counsel for the petitioner contends that after issuance of the occupation certificate of the sewerage connection in the year 2000 respondent-authorities could not have at this stage in the year 2009 claim extension fee for construction till 2001 when the construction as mandated under the Rules i.e. 25% of the minimum sanctioned site stood completed as is apparent from the occupation certificate and the sewerage certificate issued to the petitioner. He further contends that the basis for issuance of the order claiming extension fee till 2001, according to the reply filed by Civil Writ Petition No. 12445 of 2009 -3- the respondents, is an enquiry, which was held on wrongly issuance of occupation certificate on the basis of false report submitted by the concerned Junior Engineers. The order to this effect is dated 1.8.2001 passed by the Chief Administrator, PUDA (Annexure R-1), wherein it has specifically been stated that the occupation certificates are required to be cancelled after following the due procedure of law and these allottees are to be issued notices for deposit of further extension fee before the issuance of fresh occupation certificates. He contends that the mandate of the order dated 1.8.2011 (Annexure R-1) has not been complied with, as neither the occupation certificate nor the 'No Objection Certificate' has been cancelled nor for doing that no notice has been issued to the petitioner and the demand has been made to the petitioner without following the principles of natural justice. On this basis itself, the petitioner contends that the impugned demand dated 12.5.2009 (Annexure P-6) and the order rejecting the appeal of the petitioner dated 27.5.2009 (Annexure P-8) cannot be sustained and deserves to be set aside. On the other hand, counsel for the respondents submits that the petitioner cannot take the benefit of the wrongful act of the Junior Engineers, who had submitted false report in connivance with the plot holders, who have been issued occupation certificates on the basis of those reports. In all, there were 266 such cases where occupation certificates were given on the basis of wrong reports submitted by the Junior Engineers and the case of the petitioner was one of them. He, however, could not dispute the factum that the Civil Writ Petition No. 12445 of 2009 -4- petitioner has not been given any notice or the mandate of the order dated 1.8.2001, has not been complied with as submitted by the counsel for the petitioner. I have heard counsel for the parties and have gone through the records of the case. The facts are not in dispute and it is also not in dispute that the entire amount of extension fee till the end of 2000 was paid by the petitioner. It is also not in dispute that the occupation certificate was issued to the petitioner on 22.12.2000 on the report submitted by the officials of the respondents stating therein 25% of the minimum mandated construction as per the sanctioned site plan stood completed at the spot. Issuance of the sewerage connection dated 27.12.2000 is also not in dispute. It is also not in dispute that no notice was issued to the petitioner prior to the issuance of the demand order dated 12.5.2009 (Annexure P-6) and the order dated 27.5.2000 does not take into consideration with regard to following the principles of natural justice and the mandate of the order dated 1.8.2009 (Annexure R-1) wherein it has been specifically stated that the occupation certificates were required to be cancelled, was to be done so on the basis of issuing notice to the concerned allottees, which primarily meant that the principles of natural justice were to be complies with, which in case of the petitioner had not been done. The factum as to whether actually 25% of the construction existed at the spot when the occupation certificate was issued to the petitioner on 22.12.2000 has not been specifically verified and no show cause notice has been issued to the petitioner for explaining as to why the Civil Writ Petition No. 12445 of 2009 -5- occupation certificate should not be cancelled nor has the occupation certificate cancelled till date. What has been done by the respondents is, putting forth a demand of Rs. 55,150/- for extension fee till the year 2001, which again appears to be arbitrary, as there is nothing on record to suggest that after December, 2000 the petitioner had immediately proceeded to make further construction, which can have brought within the mandate of 25% minimum construction area as per the sanctioned site plan. However, this year 2001 has been taken for seeking extension fee, is also not explained and no reasons for that has been given by the respondents. Further since the principles of natural justice have not been complied with the impugned order dated 12.5.2009 and thereafter the order passed by the Appellate Authority rejecting the appeal dated 27.5.2009 cannot be sustained. It would not be out of way to mention here that these two impugned orders can not be passed in pursuance of the order dated 10.8.2011 (Annexure R-1) passed by the Chief Administrator, PUDA, where again the said order mandated the compliance of due procedure of law for cancellation of the occupation certificate and for issuance of deposit of further extension fee and issuance of fresh occupation certificate. In view of the above the present writ petition is allowed. The impugned orders dated 12.5.2009 (Annexure P-6) issued by respondent No.3 and dated 27.5.2009 (Annexure P-8) are hereby quashed. Counsel for the petitioner states that as the petitioner had to pay the amount although an initial order was passed by this Court Civil Writ Petition No. 12445 of 2009 -6- dated 18.8.2009 wherein recovery of the amount of Rs.49,088/- as depicted in the order dated 27.5.2009 (Annexure P-8) was stayed but since the petitioner had to get the plot registered in her name she had deposited the said amount with the respondents under protest on 18.12.2009. The amount deposited with the respondents is Rs. 49,500/-, which fact is not disputed by the respondents in their written statement. In view of the above, a direction is issued to the respondents to refund the amount deposited by the petitioner i.e. Rs. 49,500/- within a period of one month from the date of receipt of certificate copy of this order. 5.5.2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE