2001 PLP 1257 (MLD)

Since the facts and legal questions involved were simple, we decided with the consent of counsel, to admit and dispose of this petition. The admitted facts briefly appeared to be that the petitioner had purchased a plot of land from the respondent in open auction in 1988 the petitioner paid the entire sale consideration of more than Rs.10,00,000 and an allotment order was issued to her on 9‑3‑1989 whereby she was required to obtain possession within 30 days.

2. The petitioner, however, contends that there were illegal encroachment on the plot, and therefore, by her letter dated 27‑3‑1989 (written within 30 days' period from the allotment order) the respondents were requested to remove or cause such encroachment to be removed so that she may obtain vacant and peaceful possession. However, she was not given any reply thereafter. She kept on approaching the officers of the respondents as well as other authorities through various letters but having failed to obtain any redress she addressed legal notices through her Advocate. In response to such notice she was informed by letter dated' 12‑7‑1999 that she had failed to obtain possession within the given time and upon her making an application the case would be proposed and submitted to D.G. for condonation of delay and delivery of possession on payment of necessary dues. The above order has been called in question through this petition.

3. In their comments the respondents have alleged that the petitioner herself was responsible for not obtaining possession in time. It has been averred that though she wrote a few letters but did not appear personally in the office of the Executive Engineer to obtain possession. Copies of some letters purported to have been addressed by the Assistant Director (Commercial) to the petitioner in 1999 have also been annexed to comments. The petitioner, however, has refuted the assertion by filing a reply alleging that the petitioner visited the office of the concerned Executive Engineer for snore than 100 times.

4. We do not propose to enter any factual controversy. Nevertheless it is the settled legal position that a statement supported by an affidavit ought to be accepted unless rebutted by another statement on oath. The concerned officer of the KDA has not chosen to file an affidavit and therefore, the factual assertion purporting to contradict the petitioner cannot be accepted.

5. Even otherwise, allegation that several letters were addressed by the petitioner has not been expressly refuted and all that has been said is that she did not attend personally to receive possession. Curiously, however, while the allotment letter was issued in 1989 all the letters written by the KDA officials filed alongwith the comments were written in 1999. There is no explanation for a mysterious silence of about 10 years. Even otherwise there is no requirement of law to make a 'personal visit'.

6. In the circumstances, we are satisfied that the plea to the effect that the petitioner herself was responsible for not seeking possession in time is merely an afterthought. It is understandable that KDA was unable to remove encroachments, and therefore, vacant possession was not given to the petitioner. We are, therefore, of the view that the respondent is not entitled to charge any non‑utilization fee from the petitioner. The plot is otherwise available according to the case set up by the KDA itself. We would, therefore, allow this petition and direct the respondent to hand over vacant possession within one month from today. H.B.T./B‑24/K Petition accepted.