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Shanker Shahi vs State Of U.P. And 3 Others on 26 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

RESERVED ON 08.05.2019

DELIVERED ON 26.7.2019

Court No. – 32

Case :- WRIT – C No. – 1438 of 2019

Petitioner :- Shanker Shahi

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- V.R. Tiwari

Counsel for Respondent :- C.S.C., Devi Prasad Mishra

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pankaj Bhatia,J.

(Delivered by Hon’ble Pankaj Bhatia,J.)

The petitioner has filed the present petition seeking the following reliefs:

“(1) Issue a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to consider and decide the representation/application submitted by petitioner dated 15.12.2008 (Annexure No. 6 to this writ petition), within a time framed period as may be deemed by this Hon’ble Court.

(2) Issue another writ, order or direction in the nature of mandamus restraining the authority from allotting the agreed Flat No. 401, 4th Floor, Block-C, Tulsiani Square, Phase-II, Civil Lines, Allahabad, to anybody else during pendency of the claim before the respondent No. 3.”

The facts, in brief, are that the petitioner entered into an agreement to sell with respondent no. 4 on 20.6.2013 with regard to Flat No. 401, 4th Floor, Block-C, Tulsiani Square, Phase-II, Civil Lines, Allahabad and the petitioner paid a sum of Rs. 32,55,647/- and the balance amount of Rs. 37,44,353/- was to be paid by the petitioner on completion of the flat in question. It is alleged that the respondent no. 4-company has not completed the construction work of the flat within the stipulated time and despite the work not being completed, the respondent-4-company issued a letter dated 30.8.2018 to the Chief Manager, Bank of Baroda for remitting of the balance amount of Rs. 37,00,000/-. The petitioner has made allegations that the fourth respondent is not taking steps for completion of the construction and as such the petitioner made a representation before the respondent no. 3 who has not taken any step thereupon.

Learned counsel for the petitioner has argued that statutory duties are cast upon respondent no. 3 under section 15(9) of the Uttar Pradesh Urban Planning and SectionDevelopment Act, 1973 (hereinafter referred to as the ‘Act’). Reliance is also placed upon Uttar Pradesh Apartment (Promotion of Construction, Ownership SectionMaintenance) Act, 2010 to stress that in terms of the statutory duty cast upon the respondent no. 3, the respondent no. 3 is bound to pass an order and take steps for the reliefs as claimed by the petitioner in its representation dated 15.12.2018. On 14.2.2019, this Court while entertaining the petition had directed the petitioner to serve the respondent no. 4. Supplementary affidavit has been filed stating that the services were effected on the respondent no. 4, however, respondent no. 4 has not put in appearance and no counter affidavit was filed. The respondent no. 3 has filed a short counter affidavit stating that the respondent no. 3 is not empowered to enforce the contractual obligations as prayed by the petitioner. It has been further highlighted that the petitioner should approach the authority under the Real Estate Regulatory Authority Act (in short ‘RERA’ Act) for redressal of his grievance and have thus argued that the writ petition is not maintainable and is liable to be dismissed.

We had confronted with the counsel for the petitioner as to how the writ petition, which is essentially seeking relief against a private respondent, is maintainable.

The counsel for the petitioner has vehemently argued that in terms of the provisions of Section 33 of the Urban Planning and SectionDevelopment Act, 1973, the respondent no. 3 is empowered to take action for the relief as claimed by the petitioner. We have perused the representation dated 15.12.2018 (Annexure-6 to the writ petition) given by the petitioner, as prayed, is as under:

“अतः निवेदन करना है कि अपने स्तर से मामले की जॉच कराकर उपरोक्त “मेसर्स तुल्सीयानी डवलपर्स” से प्रार्थी को प्लैट सं० 401, चौथी मंजिल, ब्लाक-सी तुल्सीयानी स्कवैर, द्वितीय फेज, का कब्जा अध्यासन बजरिये पंजीकृत बैनामा दिलाये जाने तथा वर्ष 2013 से प्रार्थी द्वारा प्रतिपक्षी के समक्ष जमा की गयी धनराशी पर 25 प्रतिशत/प्रतिवर्ष, की दर से ब्याज दिलाये जाने की कृपा करें। प्रार्थी समस्त बकाया देयकों का भुगतान दिनां क20.06.2013 को किये गये इकरारनामें की शर्तें के अनुसार प्रतिपक्षी ब्यूल्डर को करने को सदैव तत्पर है और रहेगा। पूर्व में दिये गये प्रार्थना पत्रों की प्रतिलिपि संलग्न है।”

Considering the request made by the petitioner before the respondent no. 3 as well as the reliefs claimed in the present writ petition, the first question to be decided is whether the writ petition would be maintainable for the reliefs claimed before this Court. Respondent no. 4, admittedly, is a private builder, under the U.P. Urban Planning and SectionDevelopment Act, 1973, it is obligatory upon the respondent no. 4 to carry out the development of the land after seeking permission of the development authority under Sections 14 and Section15 of the Act. The Development Authority in pursuance of the powers conferred under the Act is empowered to see that the development is carried out in terms of the permission given and the plan sanctioned under section 15 of the U.P. Urban Planning and SectionDevelopment Act, 1973.

Learned counsel for the petitioner has stressed on Section 33 of the Act confers the powers. Section 33 of the Act is quoted here-in-below:

“33. Power of the Authority to provide amenity or carry out development at cost of owner in the event of his default and the levy cess In certain cases.-

(1) If the Authority, after holding a local inquiry or upon report from any of its officers or other information in its possession, is satisfied that any amenity in relation to any land in a development area has not been provided in relation to that land which, in the opinion of the Authority, ought to have been or ought to be provided, or that any development of the land for which permission approval or sanction had been obtained under this Act or under any law, in force before the coming into force of this Act has not been carried out, it may, after affording the owner of the land or the person providing or. responsible for providing the amenity a reasonable opportunity to show cause, by order require him to provide the amenity or carry out the development within such time as may be specified in the order.

(2) If any amenity is not provided or any such development is carried out within the time specified in the order, then the Authority may itself provide the amenity or carry out the development or have provided or carried out through such agency as it deems fit:

Provided that before taking any action under this sub-section, the Authority shall afford a reasonable opportunity to the owner of the land or to the person providing or responsible for providing the, amenity to show cause as to why such action should not be taken.

(3) All expenses incurred by the Authority or the agency employed it in providing the amenity or carrying out the development together with interest at such rate as the State Government may by order fix from, the date when a demand for the expenses is made until payment may be recovered by the Authority from the owner or the person providing or responsible for providing the amenity as arrears of land revenue, and no suit shall lie in the Civil Court for recovery of such expenses.

(4) Notwithstanding anything contained in the foregoing sub-section where the Authority on the written representation by so many of the owners of any land in a development area as represent not less than one and half of the area,of that land is satisfied that any amenity in relation to such land has not been provided, which in the opinion of the Authority ought to be provided, or that any development of that land for which permission, approval or sanction had been obtained under this Act or under any law in force before the 2[commencement of this Act] has not been carried out, it may itself provide the amenity or carry out the development or have it provided or carried out such agency as it deems fit, and recover the expenses by levy of cess from all the owners of the said land :

Provided that if the owners making the said representation contend that the amenity had been agreed to be provided or the development had been agreed to be carried out by a coloniser or co-operative housing society through or from whom the land was  acquired by them, they shall file with the Authority a copy of such agreement, or of the deed of transfer or of the bye-laws of the society incorporating such agreement, and no action shall be taken by the Authority under this sub-section unless notice has been given to the coloniser of the society, as the case may be, to show cause why such action should not be taken:

Provided further that where the Authority is satisfied that the coloniser or the society has become defunct or is not traceable, no  notice under the last preceding proviso need be issued.

1[(4-A) Where the authority provides any amenity in an area developed by it the authority shall, till the responsibility for maintenance is assumed by the local authority as provided in Section 34, be entitled to recover, in the manner prescribed, from the owner of land or building, such charges therefor as may be fixed by the State Government, by a notified order, having regard to the expenses incurred for maintaining and continuing to provide such amenity.]

(5) The cess referred to in Sub-section (4) shall be equivalent to the expenses incurred by the Authority or the agency employed by it in  providing the amenity or carrying out the development, together  with interest at such rate as the State Government may by order fix, from the date of completion of the work until payment, and shall be assessed land levied on all the owners of the land in proportion to the respective areas of land owned by them.

(6) The said cess shall be payable in such number of installments, and  each installment shall be payable at such time and in such manner, as the Authority may fix, any arrear of cess shall be recoverable as arrears be land revenue, and no suit shall lie in the Civil Court for recovery thereof.

The expenses incurred by the Authority or the agency employed by it under this section shall be certified by the Authority; and such certificate as also the assessment of the cess, if any under Sub-section (5) shall be final.

If under any agreement between the owners of the land and the coloniser or the society referred to in Sub-section (4) the responsibility for providing the amenity or carrying out the development rested with such coloniser or society, the cess Payable under the sub-section by the owners shall be recoverable by them from the coloniser or the society, as the case may be.”

A bare perusal of the Section 33 makes it clear that the power is conferred in relation to amenities which are to be provided with regard to any land in a development area which are provided for in the sanctioned map but not undertaken, in such an eventuality, the Authority under the Act is empowered to ensure that the amenities as sanctioned in the map but not provided by the person responsible for doing so can be compelled to provide the said amenities or in default the Authority itself is empowered to carry out to provide such amenity after giving an opportunity of hearing to the owner of the land in question. The reliefs claimed by the petitioner in his representation are that the developer be directed to give the possession of the flat in question by executing the requisite deeds and for refund of the money deposited by the petitioner along with interest at the rate of 25% even in the present writ petition. The relief claimed relates to Flat No. 401.

We are afraid that the reliefs claimed by the petitioner in the representation as well as before this Court do not fall within the scope of powers conferred under Section 33 of the Act. Learned counsel for the petitioner has then relied upon the provision of Section 7 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership SectionMaintenance) Act, 2010. Statement of objects and reasons of the Uttar Pradesh Apartment (Promotion of Construction, Ownership SectionMaintenance) Act made it clear that the said Act was framed to provide ownership of an individual apartment in a building and of undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment heritable and transferable Section 7 of the said Act clearly provides that the individual apartment shall be heritable and transferable together with the undivided interest in the common areas and facilities appurtenant to such apartment. The said Act also provides for the rights and obligations of the apartment owners as well as the duties and liabilities of the promoters. No statutory obligation is cast upon the respondent no. 3 under the said Act for enforcing the provision of Uttar Pradesh Apartment (Promotion of Construction, Ownership SectionMaintenance) Act.

We have perused the Act and see nothing which casts statutory duty on the respondent no. 3 either under the RERA Act or the U.P. Urban Planning SectionDevelopment Act for grant of relief as claimed by the petitioner in his representation before the respondent no. 3.

The writ petition is an attempt to settle a private dispute with the respondent no. 4 under SectionArticle 226 of the Constitution of India and the averments made in the writ petition as well as the argument are nothing but a disguised attempt to rope the respondent no. 3 for settlement of a private dispute with the respondent no. 4. It is well settled that a writ petition is not maintainable against a private respondent. The relief claimed in the petition as well as before the respondent no. 3 is essentially a private dispute with the respondent no. 4 who is not the State within the meaning of SectionArticle 12. Thus, the writ petition is not maintainable for the reliefs claimed and is, accordingly, dismissed.

The petitioner may avail of such remedy as may be available to him before any other adjudicatory forum.

The petition is dismissed.

Order Date :- 26.7.2019

Puspendra

 

 

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