CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 07, 2011. Parties Name AJS Builders Ltd. and others ...PETITIONERS VERSUS The State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. Aashish Chopra, Advocate, for the petitioners Ms. Palika Monga, D.A.G., Haryana Mr. Karan Bhardwaj, Advocate, for the applicants. Jasbir Singh, J. (oral) JUDGMENT This writ petition has been filed with the following prayer: “issue of a writ in the nature of CERTIORARI quashing the Notifications No. 2/6/18-1-1B11-2007 dated May 2, 2007, Annexure P/12 and 2/6/18-1-1B11-2007 dated April 30, 2008, Annexure P/21 , issued under Sections 4 and 6 of the Land Acquisition Act, 1894 respectively as also all the consequential CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -2- proceedings initiated pursuant to the above said notifications and for issuance of a writ in the nature of MANDAMUS directing the respondents to release / denotify the land measuring 39.34 situated in Village Garhi Kesri, Tehsil Ganaur, District Sonepat, sought to be acquired vide the above said notifications” It has been stated by the petitioners that they are owners of land measuring 42 Acres , which they have purchased from various land owners. Then they moved an application for grant of licence to develop a residential colony as per the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 (in short the 1975 Act). The respondents also entered into a collaboration agreement with some land owners to develop their land. On October 23, 2006 , Letter of Intent (in short LOI) was issued to the petitioners to develop a residential colony in land measuring 52.725 Acres, subject to certain conditions. Consequent thereto, the petitioners executed an agreement in form LC-IV and also filed an undertaking. An amount of Rs. 2,52,13,973/- was deposited towards licence fee and Rs. 24,00,000/- were deposited towards scrutiny fee as per norms. Petitioners failed to fulfill the conditions imposed for grant of licence. Extension of time was sought to do the needful. On December 20, 2006, demand draft for an amount of Rs. 2,10,87,622/- on account of conversion charges was also deposited with the authorities. When the petitioners failed to comply with the conditions imposed by letter of intent dated October 23, 2006, they received a letter from the competent authority proposing to withdraw the CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -3- LOI. After hearing, the petitioners filed an application in form LC-1 for grant of fresh licence on March 20, 2007 and also deposited an amount of Rs. 21,56,000/- towards scrutiny fee. Thereafter, instead of granting a licence to them, a notification under Section 4 of the Land Acquisition Act, 1894 (in short the Act) was issued to acquire a vast track of land including land owned by the petitioners. Petitioners filed objections under Section 5- A of the Act. Objections were rejected vide order dated August 1, 2008. Declaration under Section 6 of the Act was issued on April 30, 2008. Thereafter, the petitioners filed Civil Writ Petition No. 20154 of 2008, which was got dismissed as withdrawn on December 3, 2009, with liberty to file fresh one after giving the better particulars. Thereafter, this writ petition has been filed on May 24, 2010, notice of motion was issued on May 25, 2010. In response to the notice, issued by this Court, reply has been filed, wherein it has been stated that on account of non-disclosure of material facts, this writ petition deserves to be dismissed. Heard. It is not in dispute that the petitioners had purchased the above said land in their name vide sale deeds Annexures P-1 to P-3 on different dates from various land owners. Sale consideration was paid in the form of 'post-dated cheques' to the original owners. During pendency of this writ petition, an application was filed by the previous land owner, from whom the land was purchased by the petitioners stating therein that the post-dated cheques when presented in the Bank were not honoured and bounced. Complaints filed under Section 138 of the Negotiable Instruments Act, CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -4- 1881, are still pending. It is further stated that vide order dated September 2, 2009, mutation of the land sanctioned in favour of some of the petitioners was cancelled by the competent authority. It is further stated in the written- statements that two FIRs bearing No. 56 dated April 15, 2009, and 110 of 2009 were registered against some of the petitioners for selling the land in dispute, to the prospective buyers contrary to the provisions of 1975 Act and without getting a licence. It is further stated that even before grant of licence, when the petitioners carved out the plots and sold those to the various investors, notice for violation of the provisions of the 1975 Act was issued and further that Rs. 2,10,87,622/-, deposited by the petitioners towards external development charges were returned vide letter dated February 5, 2007. It has also come on record that before filing this writ petition, the erstwhile owners filed two writ petitions i.e. CWPs No. 6104 of 2009 titled as Randhir Singh and others v. State of Haryana and another and 3273 of 2009 titled as Prem Singh and others v. State of Haryana claiming that an enquiry be marked against the petitioners for committing a fraud with the land owners and further that the compensation for the land acquired be not disbursed to the petitioners. Interim order passed in one of the writ petitions on March 3, 2009, reads thus: “Present: Shri Karan Bhardwaj, Advocate, for the petitioner(s) Notice of motion for 23.4.2009. Shri Ravi Dutt Sharma, learned Deputy Advocate General, Haryana, accepts notice on behalf of respondents No. 1 to 6 and 11. CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -5- Let respondents No. 7 to 10 be served through dasti notices from the adjourned date. Meanwhile, the Deputy Commissioner and the Superintendent of Police of Sonepat are directed to ensure that no farmer, to whom the entire sale consideration has not been paid so far, be disposed pursuant to the sale deeds executed in favour of the respondent – builders. It is further directed that no amount of compensation shall be disbursed by the Land Acquisition Collector to respondents No. 7 to 10. Let a copy of this order, duly attested under the signatures of the Bench Secretary, be supplied to Shri Ravi Dutt Sharma, Learned State Counsel, for information and necessary compliance.” It is not in dispute that in both the writ petitions, the petitioners had put in appearance before filing of this writ petition and filed reply controverting allegations levelled against them. Relevant paras of the reply filed by respondents No. 2 and 4 in this Court, depicting entire position, as referred to above, reads thus: “b) That the petitioners submitted an application in April , 2006 for grant of licence for setting up a residential/ group housing colony for about 65 acres of land situated in the revenue estate of Village Garhi Keshri, Distt. Sonepat under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as Act of 1975). After obtaining CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -6- report of the field offices and compounding the offence committed by the petitioners under Section 7(i) of the Act of 1975, it was decided in principle to grant licence for an area of 52.725 acres and as per requirement of Rule 10 of the Haryana Development and Regulation of Urban Areas Rules, 1976 framed under the Act of 1975, a letter of intent was issued to the owners of the land including the petitioners vide this office memo No. DS-1-2006/26736 dated 23-10-2006 (Annexure P-6) directing them to fulfill certain terms and conditions before the licence could be granted to them. Inter alia, they were also required to fulfill the following main terms and conditions within a period of 30 days from the date of issue of this notice failing which the grant of licence would have been refused. (i)To furnish guarantee of the amount of Rs. 653.235 lacs for execution of Iternal Development Works in the proposed colony area. (ii)To deposit a sum of Rs. 1662.98 lacs on account of External Development Charges for execution of External Development Works by HUDA. (iii)To deposit an amount of Rs. 2,10,87,622/- on account of Conversion Charges for area under Plotted/ Commercial/ Group Housing Development. (iv)To deposit an amount of Rs. 72,13,973/- on account of deficit licence fee. (v)To deposit an amount of Rs. 1,39,85,906/- on account of CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -7- Infrastructure Development Charges. (vi)To execute two agreements i.e.LC-IV and Bilateral Agreement on non-judicial stamp paper. c) That the petitioners vide letter dated 21-11-06 (Annexure P- 7) requested for extension of time for one month for fulfilling the conditions of the said Letter of Intent. However, they only submitted an amount of Rs. 72,13,393/-, i.e. the amount of deficit licence fee and the two agreements i.e. LC-IV and Bilateral Agreement on non-judicial stamp paper. The time for fulfilling the conditions of Letter -of-Intent issued vide letter dated 23-10-2006 was extended upto 21-12-2006 keeping in view the request of the petitioners. However, they still failed to fulfill all the terms and conditions of the agreement. The petitioners deposited only a sum of Rs. 2,10,87,622/- on account of conversion charges. But failed to furnish bank guarantee of Rs. 653.25 lakhs for execution of Internal Development Works. The amount due on account of Infrastructure Development Charges and External Development Charges amounting to Rs. 1,39,85,906/- and 1662.98 lacs respectively was still not deposited. d) That the petitioners vide letter dated 11-01-07 further informed that deliberations with the banker are going on and the remaining amount of EDC will be deposited as soon as the same is received from the banker. As there is no provision in the Act of 1975 or the rules made there under for further CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -8- extension of time beyond 60 days, the petitioners were directed vide this office memo No. DS-1-2005/3802 dated 05-02-07 (Annexure P-9) to appear before Respondent No. 4 for personal hearing, before the letter of intent issued vide letter dated 23- 10-06 was withdrawn. A sum of Rs. 2 crores sent by the petitioners on account of EDC vide draft No. 79744 dated 11- 01-07 was also returned. After giving the petitioners an opportunity of hearing, the letter of intent issued to the petitioners vide letter dated 23-10-06 under Rule 10 of the Haryana Development and Regulation of Urban Area Rules 1976 was withdrawn vide this office memo No. DS-07/6559 dated 07-03-07 (Annexure P-10) on the ground that the petitioners have failed to comply with the terms and conditions of Letter of Intent within the stipulated period. However, the petitioners were advised that if they were still interested in obtaining the licence, then they should submit fresh request on prescribed from LC-1 along with requisite scrutiny fee. Thus, it would be observed that the petitioners failed to comply with all the terms and conditions of the Letter of Intent dated 23-10- 2006 as the amount of EDC amounting to Rs. 1662.98 lacs and amount of infrastrcture Development Charges of Rs. 1,39,85,906/- still remained unpaid and the Bank Guarantee amounting to Rs. 653.235 lacs was also not deposited hence licence could not be granted to them. e) That the petitioners again submitted an application on the CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -9- prescribed form (LC-1) along with scrutiny fee of Rs. 21,56,000/- vide letter dated 20-3-07(Annexure P-11). As per procedure followed in the Department, a fresh report was sought from the Distt. Town Planner Sonepat vide this office letter dated 21-05-07. It was reported by the Distt. Town Planner Sonepat vide letter dated 11-6-07 that notification under section 4 for acquisition of the land for the development of Industrial and Residential Complex Phase III of Barhi in the revenue estate of village Latheri, Barhi and Garhi Keshri of Tehsil Ganaur, District Sonepat in which land of the petitioners falls, has been issued by the State Government in the Industries and Commerce Deptt. Vide notification dated 20-05-07 (Annexure P-12) . Out of the total area i.e. 52.725 acres for which the licence was sought, land measuring 39,344 Acres is now under acquisition proceedings. Notification under Section 6 of the Land Acquisition Act, has also been issued by the State Govt. on 30-04-2008 (Annexure P-21) and award of the land has been announced on 28.01.2010. f) That it is further submitted that though the case of the petitioners for grant of licence for setting up a residential colony on the land falling in the revenue estate of village Garhi Keshari Tehsil Ganaur Distt. Sonepat was pending in the office of respondent No. 4, the Petitioners had booked plots in the proposed colony and collected huge amount in the form of pre launching of the Scheme in violation of the provisions of CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -10- Section 7(i) of the Act of 1975 which provides that no persons including a property dealers shall without obtaining a licence under Section 3 transfer or agree to transfer in any manner plots in a colony or make an advertisement or receive any amount in respect thereof. Though at the time of issue of Letter of Intent dated 23-1-06, in exercise of its powers under Section 13 of the Act of 1975, the Director has compounded the offence committed by the petitioners under Section 7(i) of the Act of 1975 for an area of 6500 Sq. yards, but it has come to the notice of the answering Respondents that the petitioners have now sold/ booked plots in the proposed colony for an area far-in- excess of that which was considered for composition at the time of issue of letter of intent. Accordingly, two criminal complaints i.e. F.I.R. No. 56 dated 15-04-09 u/S 406/420, 120- B IPC, PS, EOW Crime Branch Qutab Institutional Area New Delhi and F.I.R. No. 110 u/s 406/420/468/471/120-B IPC, PS Mandir Marg New Delhi have been registered against the petitioners. Complaint against the petitioners has also been filed before the Distt. Consumer Disputes Redressal Forum Kurukshetra for deficiency in service. Thus, the charges of committing fraud and cheating are pending with the police against the petitioners.” g) That in view of the facts and circumstances explained above, the case of the petitioners for grant of licence under the provisions of Act of 1975 and the Rules made there under CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -11- cannot be considered and is liable to be rejected. The petitioners were accordingly granted an opportunity of personal hearing on 09-11-2010, when they failed to appear. Hence the case was decided ex parte and the licence application stands rejected. The rejection orders dated 01.12.2010 are enclosed herewith at Annexure R-1.” Mutation was cancelled and appeal filed by the petitioners was pending when this writ petition was filed. Sequence of events clearly show that when this writ petition was filed for quashing of the acquisition proceedings and grant of licence in favour of the petitioners, serious dispute was pending regarding ownership of the land in dispute. The erstwhile owners had already filed CWPs No. 6104 of 2009 and 3273 of 2009, which were pending. The petitioners had put up appearance therein. It has also come on record that before grant of licence, the petitioners carved out the plots and sold those plots to numerous persons. The Investors, when came to know that fraud has been committed with them got registered FIRs No. 56/2009 and 110/2009 against the petitioners before filing of this writ petition. The petitioners were also proceeded against for violation of the provisions of Section 7(i) of the 1975 Act. At their instance, offence was compounded by charging the composite fee. An amount of Rs. two crores was returned to the petitioners before filing of this writ petition. When this writ petition was filed, in the revenue records, the petitioners were not shown as the owners because mutation in their favour was cancelled, at the instance of the erstwhile CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -12- owners, on September 2, 2003, and appeal against that order filed by the petitioners was pending. None of those facts, which are material to get relief, were mentioned in this writ petition despite the fact that in the written-statement, filed in the earlier writ petition (i.e. CWP No. 20154 of 2008) all these facts were mentioned and the earlier writ petition was got dismissed as withdrawn after the filing of a written-statement, with liberty to file fresh one after giving the better particulars. In CWP No. 20154 of 2008 (earlier filed by some of the petitioners), following order was passed on December 3, 2009: “Present: Mr. A.K.Chopra, Senior Advocate, with Mr. Amit Chopra, Advocate, for the petitioner. Ms. Palika Monga, DAG, Haryana for respondent Nos. 1, 4 and 6. Mr. Rajesh Hooda, Advocate, for Mr. Kamal Sehgal, Advocate, for respondent No. 5. Satish Kumar Mittal, J. (oral) Learned counsel for the petitioner on instructions from the petitioner states that the petitioner wants to withdraw the instant writ petition with liberty to file a fresh petition with better particulars. Learned counsel for the respondents have no objection. In view of above, the instant writ petition is dismissed as withdrawn with liberty aforesaid.” What to talk of giving better particulars, even the material facts were not disclosed in this writ petition. The petitioners have committed a fraud with the land owners by giving them post-dated cheques, which were not honoured. For selling the land/ plots without getting a licence, FIRs CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -13- are pending against them. Their ownership is in dispute. Without disclosing those facts, this writ petition has been filed. Such a litigant has to be dealt with a heavy hand to curb filing of frivolous litigation in the Courts, that too without giving the bare facts. A Division Bench of this Court in Rajender and others v. State of Haryana and others, CWP No. 20963 of 2010, decided on January 20, 2011, in such a situation has observed as under: “From the centuries the Indian Society always depicted two basic values of human life i.e. truth and non-violence. Persons like Mahatma Gandhi, Swami Vivekanand, Gautam Budha etc. always guided the people to ingrain these values in their daily life. Truth constitute an integral part of justice – delivery system without which justice can not be done. In pre- independence era, the people feel proud to tell truth in the Courts irrespective of the consequences which they may have to face. But, in the post independence period drastic changes can be seen in our value system. Today, materialism has overshadowed our old values and everyone is concerned with his personal gain. People have become so greedy that they do not hesitate to take shelter of falsehood for their personal gain. People involved in the litigations conceals truth from the Court and take the shelter of misrepresentation and suppression of real facts to mislead the Court to get an order passed in their favour. What treatment should be given to such like litigants, an answer was given by the Hon’ble Supreme Court in Dalip CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -14- Singh v. State of Uttar Pradesh and others, (2010) 2 Supreme Court Cases 114, in which, it was held as under:- “A party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case. A person who invokes the High Court’s jurisdiction under Article 226 of the Constitution is duty-bound to place all the facts before the Court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain a petition filed under Article 226 of the Constitution. Jurisdiction under Articles 32 and 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.” In the case of Dalip Singh (Supra), the Court referred the observations made by the Supreme Court in , Prestige Lights Ltd. V. SBI, (2007) 8 Supreme Court Cases 449, in which, the Hon’ble Supreme Court observed that:- “In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -15- conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.” In view of facts, mentioned above, this writ petition deserves to be dismissed and it is ordered accordingly. For wasting time of this Court and filing this frivolous litigation by concealing the material facts, the petitioners are burdened with costs of Rs. 2,00,000/- (two lakhs), to be deposited with the Secretary of the High Court Legal Services Committee, within one month, failing which the Secretary may initiate the process to recover the amount of costs. The respondent – State is directed to send copy of this order to the Investigating Officer dealing with above said FIRs. The trial Court at Gannaur, where proceedings are pending under Section 138 of the Negotiable Instruments Act, 1881, is directed to expedite the case(s). ( Jasbir Singh ) Judge (Rakesh Kumar Garg) Judge March 7, 2011. CIVIL WRIT PETITION NO. 9866 OF 2010 (O&M) -16- DKC