LPA No. 1495 of 2010 [1 ] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 1495 of 2010 Date of Decision: 08.11.2010 Haryana State Industrial & Infrastructure Development Corporation Ltd. ..Appellant Versus Parvinderjit Singh and another ..Respondents. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE RANJAN GOGOI 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Rajvir Singh Sihag, Advocate, for the appellant. Mr. Naveen Gupta, Advocate, for the caveator-respondent. **** MUKUL MUDGAL, C.J.(Oral) 1. This appeal challenges the judgment of learned Single Judge dated 13.9.2010. 2. Brief facts giving rise to the present appeal are that respondent No.1 had applied for allotment of an industrial plot in IGC Saha, District Ambala. He, alongwith his application, had tendered Project Report as well as 10% as initial amount of the plot. The appellant herein i.e. Respondent No.2 in the writ petition after considering his Project Report decided to allot him a plot measuring LPA No. 1495 of 2010 [2 ] 450 Sq. Meter for a sum of Rs. 2,52,000/- on 31.3.2003 and possession of the said plot was delivered to the writ petitioner on 15.12.2003. It is not in dispute that the entire sale consideration had been paid by the writ petitioner well in time. The only controversy giving rise to the present lis is that as per the terms and conditions of the allotment letter, the writ petitioner had to start the construction of building as per approved building plans within a period of one year of offer of possession and was required to start commercial production within a period of three years from the date of offer of possession and in case he was not able to start construction within one year, extension could be granted by the HSIDC/Competent Authority (hereinafter referred to as the 'Corporation') for a maximum period of six months, if the allottee was able to satisfy the authority that he could not start construction for the reasons beyond his control. Since the possession in this case was delivered to the writ petitioner on 15.12.2003, therefore, he was required to complete the construction by 14.12.2004 but he did not do so and applied for extension of time. He was granted extension by HSIDC-appellant herein upto 30.9.2005 but by that period also he could not raise the construction because his building plans were not approved by the Corporation. However, in the interregnum he was granted extension by the Corporation upto 16.12.2006 to raise the construction because the building plans submitted by the writ petitioner were approved on 7.4.2006. The petitioner failed to raise the construction and as such he was served with a show cause notice on 13.10.2006 for resumption of the plot. The writ petitioner submitted his reply on 24.10.2006 LPA No. 1495 of 2010 [3 ] explaining therein the circumstances which were beyond his control and as a result whereof he could not start the construction. On 9.5.2008, the plot was finally resumed by the Corporation after rejecting his explanation. The order of resumption was challenged by the writ petitioner before the Appellate Authority under the Act and the said Authority dismissed the appeal on 22.10.2008 which resulted into filing of writ petition No. 1507 of 2009. The said writ petition was disposed of by the learned Single Judge on 13.9.2010 by quashing the resumption order dated 9.5.2008 and the order passed by the Appellate Authority on 22.10.2008 with a direction to the petitioner to approach the competent authority for renewal of the approved building plan (Annexure P-9) within a period of two weeks. It was also directed that on receipt of the application for renewal, the competent authority shall grant renewal of the approved building plan within a period of four weeks thereafter, subject to fulfillment of all conditions. On receipt of the renewed sanction plan, the petitioner was required to commence and complete the construction and make the unit operational within a period of six months. On failure to do so, the order of resumption was to stand revived. Dis-satisfied with the order passed by the learned Single Judge, the Corporation has filed the present appeal. 3. It is not in dispute that the consideration amount for the plot allotted had been paid within time by the respondent. It is also not in dispute that the unit was not set up within the specified period under the terms of allotment and was constructed beyond the time LPA No. 1495 of 2010 [4 ] stipulated. 4. Clause 8 of the allotment letter laying down the time schedule for construction of the plot as well as the commencement of the project reads as follow:- “ 8(a) The allottee shall start construction of building as per approved building plans within a period of one year of offer of possession and will be required to start commercial production within a period of three years from the date of offer of possession. However, in case the allottee is not able to start construction within one year, extension can be granted by the HSIDC/Competent Authority for a maximum period of six months, if the allottee is able to satisfy the authority that the allottee could not start construction for reasons beyond his control. Similarly, the period of commencement of production can be extended by the HSIDC/Competent Authority for maximum period of one year subject to the allottee satisfying the authority that he could not go into production within three years of the date of offer of possession for reasons beyond his control and he took effective steps for implementation of the project. Extension in period for commencement of commercial production beyond three years shall be granted only if 10% of the permissible area has been constructed and effective steps have been taken by the allottee for completion of the project subject to payment of extension fee as determined from time to time shall be payable by the allottee to the HSIDC. b) The allottee will be deemed to have completed the project if he constructs minimum 25% of the permissible covered area and start commercial production within specified period as mentioned above, after installation of the plant and machinery as per project report submitted by him. In case, there is any deviation in respect of installation of plant and machinery, the HSIDC/Competent Authority will be competent to decide whether the plant and machinery which has not been installed has any material bearing on the project. A certificate of completion of project shall be issued by the HSIDC/Competent Authority on an application by the allottee.” 5. Learned Single Judge after taking into account the facts that the payment of the entire sale consideration was made in time and also the non-completion of project within time, held that the LPA No. 1495 of 2010 [5 ] respondent should be given reasonable time to complete the construction and to make the industrial unit operational, and thus gave a direction that the approval of the building plan would be sought within two weeks of the impugned judgment and on receipt of such application, the renewal of building plan subject to fulfillment of all the conditions would be granted within four weeks and that the respondent would construct and make the unit operational within a period of six months thereafter. It has also been specified in the impugned judgment that on failure of the respondent to do so, the order of resumption passed by the appellant which was the subject matter of challenge not only before the Writ Court but also before the Appellate Authority shall stand revived. 6. In this view of the matter, we are satisfied that the Writ Court has exercised its jurisdiction in a reasonable manner and that the order passed by the learned Single Judge is not perverse so as to warrant interference by this Court in appeal taking into account over all facts considered by the learned Single Judge. In this regard, a reference may be made to the observations of the Hon'ble Supreme Court made in case Wander Ltd. And Anr. Vs. Antox India P.Ltd. 1990 Supp. (1) SCC 727 which is to the following effect:- “The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material LPA No. 1495 of 2010 [6 ] and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Limited V. Pothan Joseph MANU/SC/0001/1960; [1960] 3 SCR 713 said: ....These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. V. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle.” Since the learned Single Judge has exercised discretion in this case reasonably after taking into account the timely payment of the cost of the plot and the reasons for delay, therefore, we are not inclined to interfere with this judgment. Consequently, we find no merit in this appeal and the same stands dismissed in limini. (MUKUL MUDGAL) CHIEF JUSTICE (RANJAN GOGOI) JUDGE 08.11.2010 'ravinder'