IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16936 of 2008 Date of Decision: 6.10.2009 M/s Bhardwaj Welfare Trust and another Petitioners Versus The Estate Officer, Haryana Urban Development Authority and others Respondents CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.A.S.Chadha, Advocate for the petitioners Mr.Pawan Kumar Mutneja and Mr.Raghujeet Madan, Advocates for respondent Nos.1, 2 and 4 Mr.Tarunveer Vashisth, Additional Advocate General, Haryana ….. Jasbir Singh, J. The petitioner was allotted a plot measuring four acres on 19.3.1991. In that plot, the petitioner raised construction and established a hospital, which was commenced in the year 1996. Thereafter, the petitioner moved an application for allotment of additional land, to set up a Paramedical Sciences Institute and also Nursing Hostel etc. Against that application, another plot measuring four acres was allotted to the petitioner vide allotment letter dated 20.7.1995 (P3). As per terms and conditions of the allotment, construction of the building was to be completed within two years from the date of offer of possession. Admittedly, possession of the plot in question was delivered to the petitioner on 28.7.1995. It is also an admitted fact that in the meantime, the petitioner had paid the entire Civil Writ Petition No.16936 of 2008 consideration amount by 2.7.1997. Construction was not raised within two years. The petitioner was served with a notice under Section 17(3) of the Haryana Urban Development Authority Act, 1997 (in short the Act) on 17.12.1997, however, nothing was done, which attracted notice under Section 17(4) of the Act on 17.10.1999 and the case was kept for personal hearing for 11.11.1999. In the meantime, on an application moved, vide order dated 5.11.1999, extension of three years, to raise construction, was granted to the petitioner i.e. upto 19.7.2000. The petitioner deposited the extension fee, however, the building was not constructed. Again a notice under Section 17(3) of the Act was sent to the petitioner on 21.4.2003, which failed to yield any result. Thereafter, notice under Section 17(4) of the Act was served on the petitioner on 22.7.2005. The petitioner submitted written reply to the contents of the notice issued under Section 17(3) of the Act, which was found unsatisfactory. Then personal hearing was given to the petitioner and after looking into reasons given by the petitioner, for non- construction, prayer for further extension of time to raise construction was rejected and the plot was ordered to be resumed vide order dated 27.2.2006 (P14). Appeal filed by the petitioner was dismissed on 31.7.2006 (P15). Revision petition filed by the petitioner also met the same fate on 5.8.2008 (P16). Hence, this writ petition. Upon notice, reply has been filed by respondent Nos.1 to 4, wherein the authorities have tried to justify passing of the orders, mentioned above. Counsel for the parties heard. Ordinarily, to look into violations of contractual obligation between the parties, a writ petition, under the provisions of Article 226 of the Constitution of India may not be competent, however, where action of 2 Civil Writ Petition No.16936 of 2008 the State/ Public Authority is unfair and unjustified, in given cases, this Court may look into action taken by the public authorities. Argument raised by counsel for the petitioner has to be tested on the basis of above said principle. The petitioner was allotted a plot measuring four acres in the year 1991, whereon it has constructed a hospital, which was commissioned in the year 1996. On an application moved by the petitioner, an additional area of four acres of land was allotted to the petitioner for an amount of Rs.1.09 crores, vide allotment letter dated 20.7.1995, to set up a Paramedical Sciences Institute and also Nursing Hostel etc. Before dealing with the arguments raised by counsel for both the parties, it is necessary to note down some relevant terms and conditions of the allotment letter:- “1. to 7. xxx xxx xxx 8. Before starting admission to Nursing Classes a detailed project report will be prepared and submitted to the Director General Health Services, Haryana. 9. The students shall be admitted with prior technical approval of the State Nursing Council or State Govt. or Central Nursing Council as required under law. 10. A nominee of the Director General Health Services will be included in the selection process of candidates for admission to the Nursing Classes. 11. The trust shall agree that before starting the institution the trust shall convey acceptance to abide by the directions and guidelines issued by the State Govt. in 3 Civil Writ Petition No.16936 of 2008 public interest in relation to this institution or Nursing Education and Training in general, from time to time. 12. The trust shall seek affiliation with Regional University for running their courses.” 13. to 16. xxx xxx xxx 17. The plot/ building shall not be used for any purpose other than for which it has been allotted in accordance with the plans approved by the competent authority. No obnoxious trade shall be carried out in or on any building. 18. to 20. xxx xxx xxx 21. The construction of the building shall have to be completed within two (2) years of the date of offer of possession.” 22. to 28. xxx xxx xxx” As per terms and conditions of the allotment, construction of the building shall have to be completed within two years from the date of offer of possession i.e. 28.7.1995. A reading of conditions, mentioned above, clearly indicates that it was nowhere stipulated in the allotment letter that before raising construction, any permission, to establish Paramedical Sciences Institute has to be obtained from any authority. The process of taking permission will start only when building is complete, infrastructure is established and then before admission, detailed project report was to be submitted to Director General, Health Services, Haryana. Condition Nos.9 and 10 deal with the process of selection of students for admission in the institute. Condition No.11 talks of undertaking by the petitioner, before starting the institute, to comply with the guidelines issued by the State 4 Civil Writ Petition No.16936 of 2008 government in relation to such like institutes. Clause No.12 talks of affiliation with some Regional University for running the courses. Counsel for the petitioner has vehemently contended that the petitioner has failed to construct the building for reasons beyond its control. Initially, there was labour problem in the hospital run by the petitioner. Subsequent thereto, despite many applications made by the petitioner, the competent authority had not given permission to start the institute, which resulted into delay in constructing the building. It is further contention of counsel for the petitioner that notice under Section 17(3) of the Act was never received by the petitioner as it was sent at a wrong address. It is prayer of counsel for the petitioner that on account of that, the impugned orders deserve to be set aside. Counsel further argued that the resumption order should have been passed at the end, before that the authorities were supposed to extend time for construction of the building by imposing some penalty etc., as is envisaged under Section 55 of the Act. Action of resumption is the last resort to be applied by the Estate Officer. To say so, primary reliance has been placed upon a Full Bench Judgment of this Court in Shri Ram Puri v. The Chief Commissioner, Chandigarh, 1982 PLR 388 and a judgment of the Hon’ble Supreme Court in Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and others (2004) 2 Supreme Court Cases 130. It was prayed that the writ petition be allowed, impugned orders be set aside and extension be granted to the petitioner to construct the building. Prayer made has vehemently been opposed by counsel for the respondents. He by making reference to act and conduct of the petitioner, tried to impress upon the Court that from the very beginning, intention of the petitioner was not to start the institute within the stipulated period. The petitioner took a chance, did not raise the construction even after getting 5 Civil Writ Petition No.16936 of 2008 further extension of three years, which came to an end in the year 2000. Nothing was done even thereafter, no application was moved to get further extension. The petitioner kept mum, even did not wake up, when notice under Section 17(3) of the Act was issued in the year 2003. After waiting for a sufficient time, another notice under Section 17(4) of the Act was issued in the year 2005, which was responded by the petitioner by filing a written reply dated 4.8.2005 (P13) to the contents of the notice under Section 17(3) of the Act, however, explanation given was found to be unsatisfactory, which resulted into passing of the order of resumption on 27.2.2006. Counsel for the respondents, by making reference to various documents on record, vehemently argued that resumption had been used as a last resort when the petitioner failed to act as per terms and conditions of the allotment letter dated 20.7.1995 (P3). Counsel further argued that it is a case of breach of contractual obligation, cast upon the petitioner vide allotment letter, mentioned above, action taken is reasonable and justified, as such, this writ petition filed by the petitioner be not entertained. After hearing counsel for the parties, this Court feels that this writ petition deserves dismissal. Allotment letter was issued to the petitioner on 20.7.1995. As per condition No.21 of the allotment letter, building was to be constructed within two years from the date of taking over possession of the land, in question, which admittedly, was delivered on 28.7.1995. For a period of more than one year and six months, nothing was done, building plan of Paramedical Sciences Institute was approved on 31.12.1998 and building plan for construction of Nursing Hostel and Staff Quarters was approved on 22.1.2000. After getting the building plans sanctioned, not even a single brick was laid, within a period of two years, which resulted into issuance of 6 Civil Writ Petition No.16936 of 2008 notice under Section 17(3) of the Act on 17.12.1997, however, it failed to get any result, construction was not started at the site. Another notice under Section 17(3) of the Act was issued on 13.9.1999. The petitioner filed reply to the same, which was found unsatisfactory and an opportunity was given to the petitioner for personal hearing as per provisions of Section 17(4) of the Act. Date of personal hearing was fixed as 11.11.1999. Action taken by the authorities, made the petitioner to move an application for extension of time to construct the building. On request made, it was granted vide order dated 5.11.1999 for a further period of three years i.e. upto 19.7.2000. Even during this period, no construction was raised. There is no evidence on record to show that the petitioner started any correspondence with the competent authority to start the institution. Otherwise also, as has been discussed earlier, no such prior permission was needed. Steps mentioned in Clause 8 to 12 of the allotment letter will start only after construction of building not prior thereto. Be that as it may, it is otherwise also clear that the petitioner wrote a letter, for the first time, to the Commissioner, Health Family Welfare and Medical Education, State of Haryana on 11.12.2004 (P7) i.e. after a period of nine years of the allotment of land to the petitioner. The petitioner submitted an application to get no objection, to start the institute only on 8.2.2005 (P8). For this delay of 9/10 years, no explanation has been given at any time. It appears that in the meantime, the authorities issued a notice under Section 17(3) of the Act to the petitioner in the month of November 2003. As per finding given by the authorities below, the notice was given at the correct address. It is also not in dispute that it was the same address, at which, earlier notices were received by the petitioner in the years 1997 and 1999. The petitioner failed to respond to that notice. The authorities also kept mum without any justification. Notice under 7 Civil Writ Petition No.16936 of 2008 Section 17(4) of the Act was issued on 17.6.2005. By pretending that the petitioner had received a copy of the notice under Section 17(3) of the Act, with the subsequent notice, the petitioner submitted a detailed reply to the contents of the notice under Section 17(3) of the Act on 4.8.2005 (P13). To condone the delay, in not raising the construction, it was stated that no objection certificate, to start the institute, has not been granted by the competent authority. It was further stated that in view of ban imposed by the Hon’ble Supreme Court in raising the construction, the petitioner failed to construct the building. It is an admitted fact that revised building plan was submitted for approval only on 11.12.1998, which was approved on 4.1.1999. It is also an admitted fact that except constructing a boundary wall, no other construction was raised by the petitioner. It was further stated that there was some labour unrest in the hospital run by the petitioner which was a cause for not constructing the building. Lame excuses raised by the petitioner were found unsatisfactory by the authority concerned and this Court is also convinced regarding falsity of reasons given, for not raising construction. There is no proof on record that ever any ban was imposed by the Hon’ble Supreme Court to raise construction over the land allotted to the petitioner. The petitioner made no attempt to get permission, if any, needed from the authorities concerned to start the institute. It moved an application only after nine years of allotment i.e. in the year 2004. Before that, nothing was done. Respondent No.3 has rejected the contentions, raised by the petitioner, in the following manner:- “I have heard the arguments and carefully gone through the case file, it is an admitted fact that the normal period of construction expired in July, 1997 and the maximum period of extension allowed under the HUDA policy expired in July, 8 Civil Writ Petition No.16936 of 2008 2000. The petitioner has raised the legal argument that the notice under Section 17(3) was never received by him, as it was sent at the wrong address. However, this not borne out from the record of the case. As per page 226 of the allottee file, the notice under Section 17(3) was sent at the correct address by registered post. The same is to be considered as duly delivered to the petitioner as per the provisions of Section 42 of the HUDA Act, since the same was never received back undelivered. Therefore, this argument of the petitioner does not hold water. The petitioner admits that notice under Section 17(4) was received by him and he was also given an opportunity of hearing. The allottee was given the maximum extension allowed of 3 years upto July, 2000, after payment of extension fee. There is no provision under the HUDA policy for granting more than five years period for construction of Institutional Site. A feeble attempt has been made by the petitioner to explain why he failed to carry out construction within the stipulated period of five years. In para 4 of the petition, a reference has been made to a ban imposed by Hon’ble Supreme Court within a particular radius of Badkhal Lake. However, as pointed out by Estate Officer, HUDA, Faridabad, Sector-16 Faridabad did not come within the ambit of this ban. Similarly, in para 6 of the petition it has been mentioned that the petitioner had to face unprecedented labour problem in its neighbouring Hospital because of which all activities came to a stand still. It is very relevant to note that the record of Estate Officer does not contain a single paper 9 Civil Writ Petition No.16936 of 2008 which shows that at any time between July 2000 and December 2003 the petitioner made any attempt to explain to the Estate Officer the problems that he was facing due to which he could not start and complete construction. Not a single application in writing has been made to the Estate Officer giving reasons why construction could not be started and asking for more time. It is only when proceedings under Section 17 were belatedly started by the Estate Officer in December 2003, that the petitioner camp up with some explanation. The Section 17 proceedings also continued for a period of more than two years. Even during this period, the petitioner did not initiate the construction. For all the reasons stated above, I have come to the conclusion that there is no merit in the various averments made by the petitioner. More than adequate time and opportunity was available to the petitioner to start and complete construction, which he has miserably failed to do so. Therefore, the Revision Petition is dismissed. Order had been reserved in this case after conclusion of arguments. The same is being pronounced today. May be conveyed to the parties.” It was noticed by the above said officer that even in the year 2008, when revision petition was heard, the petitioner made no attempt to raise any construction in the meantime, for a period of about 13 years which had elapsed from the date of allotment. After going through the contents of allotment letter, this Court is convinced that the process mentioned in condition Nos.8 to 12 will start only when the question of admitting the students in the institute arises and not before that. Even if argument raised by counsel for the petitioner is accepted that prior permission to start the 10 Civil Writ Petition No.16936 of 2008 construction was needed, the same is liable to be rejected on account of a fact that for a period of nine years even an application was not moved in that regard. Under these circumstances, this Court feels that the resumption order was passed as a last resort, so that the land may be allotted to some interested party, to develop it, so the institute raised thereon may contribute towards development of the country and the society. In the year 1995, when this land was allotted to the petitioner, to start Paramedical Sciences Institute, admittedly, the nurses were much in demand. The land was allotted at a very cheaper rate so that the petitioner may start the institute which may ultimately contribute towards welfare of the society by providing good paramedical staff and other facilities. By its inaction, the petitioner has failed to achieve the object with which the land was allotted to it at a very cheaper rate. Ratio of judgment in Shri Ram Puri’s case (supra) is not applicable to the facts of this case, as has been discussed earlier, in view of act and conduct of the petitioner, no option was left with the authorities except to resume the plot allotted to it. In the case of Teri Oat Estates (P) Ltd’s case (supra), their Lordships of the Hon’ble Supreme Court have held that it depends upon facts and circumstances of each case to say whether power of resumption has rightly been used or not. Following paragraphs in the judgment indicate in that regard:- “22. One of the questions which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8-A of the Act, is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13.8.1992, does not say so. No reason has also been assigned in the said order. 11 Civil Writ Petition No.16936 of 2008 24. It is, therefore, not a case where the court will have to take one stand or the other in the light of the statutory provisions. The question as to whether the extreme power of resumption and forfeiture has rightly been applied or not will depend upon the factual matrix obtaining in each case. Each case may, therefore, have to be viewed separately and no hard- and-fast rule can be laid down therefore. In a case of this nature, therefore, the action of the Estate Officer and other statutory authorities having regard to the factual matrix obtaining in each case must be viewed from the angle as to whether the same attracts the wrath of Article 14 of the Constitution of India or not.” This Court feels that in view of the facts mentioned above, action of the Estate Officer in resuming the plot, was perfectly justified. Contention of counsel for the petitioner that notice under Section 17(3) of the Act was not received by it, is of no significance. It has come on record that in the years 1997/99, notice under Section 17(3) of the Act was also issued to the petitioner which was received by it and reply was filed. At the time of argument, it was specifically stated by counsel for the respondents that the notice was issued in the year 2003 also, at the same address. Be that as it may, once the petitioner was allowed to file reply to the contents of the notice under Section 17(3) of the Act and was allowed to explain delay in raising the construction, whether such a notice was received or not, this fact lost it significance. The petitioner’s reply to the contents of notice under Section 17(3) of the Act on 4.8.2005 (P13) was taken note and discussed by the authorities before passing the order of resumption, that too after giving personal hearing to the petitioner. Counsel 12 Civil Writ Petition No.16936 of 2008 for the petitioner has miserably failed to show the reason for not constructing the building in time. In view of facts mentioned above, no case is made out for interference. Writ petition stands dismissed. 6.10.2009 (Jasbir Singh) gk Judge 13