CIVIL APPEAL 4236 of 2008 on 24 November 2006

1. Whether Reporters of local papers may beYesallowed to see the judgment?2.To be referred to the Reporters or not?Yes3.Whether the judgment should be reported inYesthe Digest?

M.M. KUMAR, J.

The instant petition filed under Article 226 of theConstitution prays for quashing resumption order dated 10.5.2006(P-8) passed by the Estate Officer, HUDA, Panipat-respondent No. 2;order dated 24.11.2006 (P-10) passed by the Appellate Authority-Administrator, HUDA, Rohtak-respondent No. 4 dismissing theappeal; and order dated 8.2.2008 (P-12) passed by the RevisionalAuthority-Commissioner and Secretary, Town and Country Planning,Department.

2. Brief facts of the case are that the petitioner was allottedan industrial Plot No. 386, Sector 25 (Part-II), Panipat, vide allotmentletter dated 2.5.2001 (P-1). There was a condition in the allotmentletter that possession of the site will be offered on completion ofdevelopment works of the area. The possession of the plot washanded over to the petitioner by respondent No. 2 on 25.11.2004(P-2). It is claimed that immediately after taking over possession ofthe plot, entire amount was paid and a No Due Certificate was issuedon 14.3.2005 (P-3). On 4.5.2006, the petitioner informed the EstateOfficer, HUDA, Panipat about the change of his address and alsosupplied a copy of power of attorney executed in favour of DilbagSingh son of Pal Singh (P-4). On 31.8.2005, the site plan submittedby the petitioner was sanctioned by respondent No. 2 (P-5). Afterconstruction upto plinth level, the site was inspected by the officialsof HUDA, Panipat and the same was found to be in accordance withthe sanctioned site plan. Accordingly a certificate to that effect wasissued on 22.9.2005 (P-6). It has been claimed that furtherconstruction work beyond DPC level could not be carried on becauseof some matrimonial dispute in the family of the General Power ofAttorney of the petitioner. After culmination of the dispute in thefamily of Dilbag Singh, GPA of the petitioner, when he went to thesite in question to resume construction, it was informed by theneighbourer that the plot in question has been resumed due to nonconstruction. The petitioner immediately approached respondent No.2 and it was informed vide order dated 10.5.2006 that the plot hasbeen resumed. This was done without affording any opportunity ofbeing heard and without any intimation to the petitioner at his changed address.

3. The petitioner filed an appeal under Section 17(5) of theHaryana Urban Development Authority Act, 1977 (for brevity, ‘theAct’) against the resumption order dated 10.5.2006. In the appeal theprincipal ground taken was that construction upto DPC level wascompleted and respondents were informed about the changed addressand also of the fact of implication of the general power of attorney ofthe petitioner in a matrimonial dispute. After considering all thesefacts, the appeal was dismissed on 24.11.2006 on the ground that thepetitioner did not raise construction within the stipulated period.Aggrieved against the order dated 24.11.2006 the petitioner preferreda revision petition under Section 30(2) of the Act wherein additionalground of discrimination was also pleaded. The revisional authoritydismissed the revision petition on 8.2.2008.

4. In the written statement filed by the respondentspreliminary objections have been taken that possession was offered tothe petitioner on the date of allotment letter i.e. 2.5.2001 but he failedto take possession immediately and he came forward to take physicalpossession after a lapse of more than three years for which therespondents were not at fault. As per condition No. 17(1) of theallotment letter, the petitioner was required to start constructionwithin a period of one year from the date of offer of possession i.e.2.5.2001. It has been asserted that as per terms and conditions of theallotment letter, the industrial unit must go into production afterconstruction of 25% permissible covered area of the plot within aperiod of three years. There was condition No. 17(3) in the allotmentletter that in case of failure to complete the said formalities, the plot is liable to be resumed. As the petitioner did not comply with the termsand conditions of allotment letter, therefore, respondents issuedvarious notices under the Act to show cause as to why the plot inquestion should not be resumed. As the petitioner failed to completethe construction within the specified time, the allotment of the plotwas rightly cancelled and plot was accordingly resumed. In reply topara 2 of the petition, it is submitted that the appellate authority aswell as the revisional authority had passed the impugned orders afteraffording full opportunities to the petitioner. In reply to para 6 of thepetition, it is submitted that the events mentioned therein pertains tohis personal and social life which in any way have noconnection/concern with the respondents and, therefore, the petitionercannot escape from his obligation to construct the plot within thespecified time. It is also stated that the petitioner was called forpersonal hearing by respondent No. 2 but he failed to appearpersonally. The notices issued through registered post were receivedback undelivered.

5. Mr. Kamal Sehgal, learned counsel for the petitioner hassubmitted that show cause notices were issued on 21.7.2005 and9.9.2005, as is evident from the perusal of order dated 10.5.2006.Thereafter, DPC certificate was issued on 22.9.2005 (P-6), whichcertifies that construction on the plot in dispute has been completedupto plinth level and that measurement at the site have been found asper demarcation/zoning plan of the sector. It was further clarifiedthat the construction upto plinth is in accordance with the sanctionedplan. Learned counsel has maintained that if the show cause noticeswere to be kept alive then there was hardly any necessity to issue

DPC certificate and, therefore, it follows that the show cause noticesmust be regarded to have lost their significance and deemed to havebeen abandoned. Another submission made by the learned counsel isbased on clause 17 of the allotment letter and he has argued that thepetitioner was required to start construction of the building within aperiod of one year as per approved building plan from the date ofissuance of final letter of allotment/offer of possession. According tothe learned counsel, the possession of the plot was handed over to thepetitioner by respondent No. 2 on 25.11.2004, as is evident from theperusal of possession certificate dated 25.11.2004 (P-2). Thereafterthe petitioner was to start construction of building within a period ofone year. He has further highlighted that the unit was required to gointo production after constructing minimum 25% of the permissiblecovered area of plot within a period of three years. The period ofthree years was yet to expire from the date of possession till25.11.2004 and the resumption order was passed on 10.5.2006. Thepermissible covered area was required to be determined as per theprovisions of the Act and the Rules framed thereunder. Mr. Sehgalhas contended that after delivery of possession on 25.11.2004, thepetitioner paid entire amount and No Due Certificate was issued byrespondent No. 2 on 14.3.2005 (P-3). Thereafter the petitionerintimated about the change of address alongwith a copy of Power ofAttorney to the Estate Officer, HUDA, Panipat on 4.5.2006 (P-4). Hehas also applied for sanctioning of site plans on 31.8.2005 and hadproceeded to start construction, which has come up to the DPC level.The show cause notice issued to the petitioner was sent on the earlieraddress whereas he has appointed one Shri Dilbag Singh son of Shri Pal Singh, resident of House No. 150, Eight Marla Colony, Panipat,as his General Power of Attorney in respect of the aforesaid plot,registered on 29.12.2005. A copy of the same was duly sent on4.5.2006 (P-4) to the Estate Officer, HUDA, Panipat. Therefore, theprinciples of natural justice stand violated as no show cause noticewas served upon him nor any opportunity of hearing was afforded tohim.

6. Mr. Sehgal, learned counsel for the petitioner furtherargued that the resumption orders, in cases where full payment of plothas been made, should be resorted to as last remedy because toremedy the lapse committed by the petitioner on account of delay inraising construction, proportionate amount of penalty could havebeen imposed by granting extension.

7. The last submission of learned counsel for the petitioneris that hostile discrimination has been practised against the petitionerbecause in similar facts and circumstances one Ramesh Kapoor hadfiled an appeal and the Administrator, HUDA, Rohtak, has set asidethe resumption order by noticing that the construction work ofRamesh Kapoor was in progress at the time of passing of resumptionorder and that he was ready to pay extension fee. Accordingly,resumption order was set aside in respect of Plot No. 453, Sector 25,Part-II, Panipat, with the condition that the allottee Ramesh Kapoorwould complete construction within a period of six months and startproduction within a period of one year from passing of that orderfailing which the order of the Estate Officer, HUDA, resuming theplot, was to spring back in operation (P-13). Similar examples ofsuch concession given by the Administrator, HUDA, Rohtak, are in the cases of Sarvshri Om Parkash Lakhina (P-14), Lila Dhar (P-15),Shyam Sunder Batra (P-16), Prem Kumar Arora (P-17), Ashok KumarChugh (P-18), Anil Kumar (P-19) and Bhim Sain (P-20).

8. Mr. Munish Bansal, learned counsel for the respondentshas, however, made one basic submission that offer of possession wasmade to the petitioner on 2.5.2001 and according to terms andconditions of the allotment letter, the industrial unit was expected togo into production after construction of 25% permissible covered areaof plot within a period of three years. He has maintained that theperiod of three years had expired on 2.5.2004 and, therefore, theresumption order has been rightly passed. According to the learnedcounsel the basic object of allotting plot to the petitioner was toadvance the object of industrialising the area by giving all incentivesnot as an investment project for the petitioner. He has also raisedobjection with regard to handing over the plot to a third person byexecuting a General Power of Attorney by the petitioner in favour ofDilbag Singh.

9Having heard learned counsel for the parties we are ofthe considered view that the instant petition deserve to succeed. Itwould be fruitful to notice clause 17 of the allotment letter, whichreads thus:- “17(i) You will have to start the construction of buildingwithin a period of one year as per approvedbuilding plan from the issue of the final letter ofallotment/offer of possession.within a period of one year as per approvedbuilding plan from the issue of the final letter ofallotment/offer of possession.

ii)The unit must go into production after constructingminimum 25% of permissible covered area of plotminimum 25% of permissible covered area of plot within a period of Three years. The permissiblecovered area shall be determined as per theprovision of the HUDA Act & Rules.

iii)In case you fail to do this plot is liable to beresumed and the whole or part of money paid ifany, in respect of it will be forfeited is (in?)accordance with the rules regulations/industrialpolicy?”

10. Clause 17 of the allotment letter clearly stipulates thatthe petitioner was to start construction of building within a period of

one year as per the approved building plans from the date of issuanceof the final letter of allotment/offer of possession. It is true that letterof allotment was issued to the petitioner on 2.5.2001. It furtherprovide that the unit was to go into production within a period ofthree years after constructing 25% of the permissible covered area ofthe plot. It is further pertinent to notice that the possession of the sitewas to be offered to the petitioner on completion of developmentworks in the area. Clause 6(ii) of the allotment letter is also relevant,which shows that 20% of the rebate equivalent to 20% of the landwas to be given if the industrial unit was to start commercialproduction within three years of the offer of possession. Sub-clause(ii) of clause 6 of the allotment letter is reproduced hereunder:- “6(i) xxxxxxx

(ii) Rebate equivalent to 20% of the land will be givenif the industrial unit starts commercial production within3 years of the offer of possession of industrial plot.”if the industrial unit starts commercial production within3 years of the offer of possession of industrial plot.”

A perusal of the aforesaid clause would show that the period of three years fixed by clause 17 is not inflexible as it aims toencourage the industrialisation. It is true that possession of the plotwas offered to the petitioner by the allotment letter itself which isevident from clause 25 of the allotment letter, which offer possessionof the plot on any working day, although the possession was actuallytaken by the petitioner on 25.11.2004. However, it does not meanthat the petitioner could not have been adjusted by granting himextension for construction of the plot by charging extension fee i.e.the course adopted by the Administrator, HUDA, Rohtak, in largenumber of cases, which is evident from orders Annexure P-13 to P-20. According to order dated 25.9.2006 (P-20) passed in the case ofShri Bhim Sain, the building plan was approved on 21.12.2005 andthe DPC certificate was not even issued but the plot was resumed on29.12.2005, whereas in the present case the DPC certificate has beenissued on 22.9.2005 after issuance of show cause notices on21.7.2005 and 9.9.2005. The building plans submitted by thepetitioner were sanctioned on 31.8.2005 and the plot was resumedvide order dated 10.5.2006 (P-8). It appears to be highlyunreasonable to resume the plot after issuance of DPC certificate.The authority should have followed the same course as has beenfollowed in large number of other cases, which is evident from theperusal of Annexures P-13 to P-20. Accordingly, we are inclined toaccept the prayer made by the petitioner for quashing of theresumption order dated 10.5.2006 (P-8) passed by the Estate Officer,order dated 24.11.2006 (P-10) passed by the appellate authority andorder dated 8.2.2008 (P-12) passed by the Revisional Authority.12.The argument of the learned counsel for the HUDA that

three years period has to commence from the date of offer ofpossession, which is, in fact, the date of issuance of letter ofallotment, stricto senso may not be incorrect. However, in the light ofthe policy adopted by the Administrator, HUDA, Rohtak, of grantingextension, such a strict construction of clauses of allotment letter maynot be sustainable. Therefore, we are not impressed with theargument raised and has no hesitation to reject the same.

13. As a sequel to the aforesaid discussion, resumption orderdated 10.5.2006 (P-8), appellate order dated 24.11.2006 (P-10) andrevisional order dated 8.2.2008 (P-12) are hereby quashed and furtherdirections are issued in terms of the policy discernible from variousorders annexures P-13 to P-20. Accordingly, the petitioner is grantedsix months time which shall commence from March 1, 2009. TheEstate Officer, HUDA, Panipat-respondent No. 2 shall within 15 dayscalculate the extension fee, which the petitioner is liable to pay as perrules for delaying the completion of construction. The extension feeshall be paid before 1.3.2009. If the petitioner fails to pay extensionfee then the impugned order shall come back in operation. 14.The instant petition stands disposed of in the aboveterms.

(M.M. KUMAR)JUDGE

January 29, 2009

okg/Pkapoor

(JORA SINGH) JUDGE