IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.88 of 2007 Date of Decision: March 20, 2009 Haryana Urban Development Authority Appellant Versus M/s Zuari Industries Respondent CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Arun Walia, Advocate for the appellant Mr.Arun Khosla and Mr.Manish Behl, Advocates for the respondent ….. Jasbir Singh, J. Haryana Urban Development Authority (in short HUDA), through its Estate Officer at Gurgaon, has filed this Letters Patent Appeal against the judgment dated 7.2.2007 passed by the learned Single Judge, ordering resumption of a plot to the respondent (petitioner), which it had earlier surrendered to the appellant. Some admitted facts: Respondent (petitioner) was allotted a plot bearing No.8, measuring 8000 sq.mts. in Sector 32, Gurgaon on 27.6.1995 (P-5). Vide letter dated 17.7.1997 (P-8), it was intimated to the respondent, by the appellant that some part of the plot allotted to it is under litigation, however, if it wished to take possession of the remaining clear area, it may do so by visiting the office of the appellant on any working day. The said offer was accepted by the respondent and on 18.7.1997, possession of 8380 sq. mts. Area in plot No.8, Sector 32 was delivered to the respondent. In token of receipt, proceedings-note of taking possession, was signed by A.B.Kartik on behalf of the respondent. Letters Patent Appeal No.88 of 2007 It is also apparent from the records that with the note, regarding delivery of possession, site map was also attached showing some area of plot No.8, which was under dispute (for reference, see document Annexure P-9, page 127). It is also evident from the records that thereafter the respondent had constructed a boundary wall around the plot in question. It is an admitted fact that a very small portion of the plot in dispute, measuring 4 feet x 2 sq.feet was a part of the cremation ground and on account of that, people from the neighbouring villages were obstructing the respondent from constructing the boundary wall. The records further shows that as per the terms and conditions of the sale, the construction was to be completed within five years from the date, the possession was delivered. Admittedly, the respondent failed to do so. Taking note of the same, the appellant issued a notice (P-15) under Section 17(3) of the Haryana Urban Development Authority Act, 1977 (in short the Act), asking the respondent to show cause why the site / building be not resumed and the amount paid towards price forfeited. Respondent filed its reply vide letter dated 4.4.2001 (P-16), wherein taking of possession of the plot, in the year 1997 was admitted. Alleging that the people from the neighbouring villages did not allow it to complete the boundary wall near the cremation ground, a prayer was made that the period of five years ought to start from the date the possession of the area, under cremation ground, is delivered. In response to the letter written by the respondent and referred to above, the Estate Officer (HUDA) wrote a letter on 13.8.2001, intimating to the respondent that the plot in question is clear from all disputes and possession can be taken on any working day. It is also not disputed before us that thereafter even possession of the disputed area, measuring 4 feet x 2 sq. feet was handed over to the respondent. It is also not in dispute that except filing one 2 Letters Patent Appeal No.88 of 2007 representation, the respondent failed to lay challenge to the resumption notice dated 14.3.2001, either before the competent authority under the Act or in any Court of law. Photographs on record (P-18) clearly indicate that construction of the boundary wall was completed by the respondent and an iron gate was also erected on one side of the said plot. Thereafter, the respondent, of its own, vide letter dated 26.11.2001 (P-19), offered to surrender the plot in question. In the said letter, it was mentioned that existence of the cremation ground on one side of the allotted plot will cause lot of nuisance and further that people from village Jharsa did not allow the respondent to complete construction at the site. It was further said that, had the existence of the cremation ground been brought to the notice of the respondent at the initial stage, it would not have opted to purchase the plot in question. It was further stated that in view of embargo imposed in the allotment letter, against the transfer of the plot, the respondent had opted to surrender the plot on refund of payment made to the appellant along with interest @ 18% per annum from the date the payment was made. It was further averred in the application that in case, the appellant failed to accept the request made by the respondent, it reserved its rights to institute legal proceedings to claim refund of the money paid and the amount spent on construction raised and damages etc. Prayer to surrender plot was reiterated by the respondent in its letter dated 16.12.2002 (P-20). Request was accepted and after deducting 10% of the amount paid, an amount of Rs.2,10,54,314/- was refunded to the respondent in the year 2003, which fact is reflected in documents Annexures P-21 and P-22 on record of this case. It appears that thereafter respondent started insisting that the amount deducted, be also paid to it along with interest. When it failed to get 3 Letters Patent Appeal No.88 of 2007 any response to the said request, it filed CWP No.7237 of 2003 in this Court, which was disposed of vide order dated 24.3.2005,directing the appellant to decide representation (P-19), by passing a speaking order within a stipulated period. It is not in dispute that in the said writ petition, no prayer was made by the respondent for return of the surrendered plot. Liberty was however granted by this Court to the respondent to supplement his earlier letter (P-19), by filing a detailed representation. In its subsequent representation dated 4.4.2005 (P-24), a prayer was made only with regard to refund of 10% deducted amount along with interest and also other expenses. Total amount claimed, was Rs.5,15,46,808/-. After adjusting the amount already paid, a demand for payment of Rs.3,06,36,495/- was raised. Even in the detailed representation, which was filed as per the order passed by this Court on 24.3.2005, no prayer was made by the respondent for return of the surrendered plot. By its order dated 29.11.2005 (P-25), the appellant rejected the claim raised by the respondent. Respondent then filed a writ petition in the month of December 2005, wherein again, the only prayer made related to the refund of money and not for return of the surrendered plot in question. During the pendency of this writ petition, the respondent moved Civil Miscellaneous Application No.12372 of 2006 for amendment of the writ petition, which was allowed vide order dated 31.7.2006. It was in the amended writ petition that the respondent for the first time made a prayer for annulling the action of the appellant in accepting surrender of the plot in question, on the ground that there was no provision in the Scheme for any such surrender and further that the surrender was made under coercion. In the alternative, prayer for damages, as was made earlier, was also reiterated. 4 Letters Patent Appeal No.88 of 2007 The appellant filed a reply to the writ petition, wherein facts mentioned in earlier part of this order were narrated. It was specifically stated that except a small portion of land measuring 4 feet x 2 feet, possession of rest of the area was delivered to the respondent on 18.7.1997. It was also mentioned that a boundary wall around the said area was constructed by the respondent in the year 1998. After service of notice dated 14.3.2001, under Section 17(3) of the Act, for resumption of the plot, possession of even the disputed area, referred to above, was also delivered to the respondent. It was further stated that in view of policy decision taken by HUDA on 18.11.1999, regarding surrender of institutional plots, the request for surrender made by the respondent was granted, after deducting 10% amount of the price of the plot. It was also stated that the area in dispute was only 8 sq. ft. On the rest of the area measuring more than 8000 sq. mtrs., construction could have been raised by the respondent, which, it had failed to do. It was fear of resumption of the plot and forfeiture of amount paid, that the request for surrender was made. A learned Single Judge after hearing both the parties, allowed the writ petition filed by the respondent, by order dated 7.2.2007 and ordered the appellant to return the surrendered plot, subject to re-payment of the amount towards price of the plot, with interest. This appeal assails the correctness of the said order. Counsel for the parties heard. Appearing for the appellant, Mr.Arun Walia, Advocate vehemently argued that the learned Single Judge had failed to look into the documents on record, which clearly established that the action of surrender of plot, by the respondent, was a conscious decision taken as per Policy of the HUDA. He contended that after getting refund of 90% of the amount 5 Letters Patent Appeal No.88 of 2007 paid, the respondent became greedy and tried to extract the remaining 10% amount paid by it towards price of the plot. At no point of time was a request made for return of the plot. In support, he referred to the contents of various applications made by the respondent and the averments made by it in writ petition No.7237 of 2003, decided on 24.3.2005 (P-23). He further argued that when CWP No.428 of 2006 was filed, initially, no prayer for return of plot was made and the claim was limited only to refund of money. It was only when an application for amendment of the writ petition was moved, that a claim was made for return of the surrendered plot in the month of October 2006 for the first time. He contended that it was not open to the respondent to lay claim for return of the plot, in dispute at this belated stage. By its act and conduct, the respondent was estopped from raising any such plea. He further argued that the learned Single Judge had erred in observing that the plot could not have been transferred to HUDA/ the appellant. It was contended that the learned Single Judge had without referring to any document on record, disposed of the writ petition in a very cursory manner. He prayed for dismissal of CWP No.428 of 2006 filed by the respondent. On behalf of the respondent it was argued by Mr.Arun Khosla, Advocate, that the order, under challenge, was a consent order. In support he made reference to order dated 9.10.2006, vide which, application of the respondent, to amend the writ petition, was allowed and interim orders, passed by this Court on 24.7.2006 and 31.7.2006, wherein this Court had noticed the argument of the respondent that the resumption proceedings were bad in law and further that there existed no provision for surrender of plot to HUDA in the Scheme, pursuant to which, the plot in question was allotted. He further argued that the surrender was under coercion, in as 6 Letters Patent Appeal No.88 of 2007 much as possession of a portion of the plot was not delivered to the respondent preventing the respondent from raising any construction within the stipulated period. In addition there was a complete bar to the transfer of the plot to any other person. It was in these circumstances, that the respondent was forced to offer surrender of the plot to HUDA. He urged that learned Single Judge had rightly ignored the surrender of the plot made by the respondent. He further argued that the original scheme, under which the allotment was made, had not been modified to provide for surrender of a validly allotted plot of land. We have given our careful consideration to the submissions made at the bar and perused the record. The plot in question was allotted to the respondent vide letter dated 27.6.1995 (P-5). Clause 8 of the above said letter required that construction of building on the plot in question shall have to be completed, by the allottee, within five years from the date of offer of possession. Admittedly, possession of the plot measuring 8380 sq.mtrs. was delivered to the respondent on 18.6.1998. Respondent, thereafter, constructed a boundary wall around the same. The dispute regarding possession was limited to a small area measuring just about 4 feet x 2 feet forming a part of the cremation ground. It is apparent from the records that on an area of more than 8000 sq. mtrs. except boundary wall and small construction for security guards, no other construction activity was started by the respondent. Possession of small disputed portion of land, measuring 4 feet x 2 feet was also delivered to the respondent on 13.8.2001. In the allotment letter (P-5), it was mentioned that in case an allottee fails to complete construction within the stipulated period, the time limit is extendable by the Estate Officer if an allottee satisfies the concerned Officer, that non- 7 Letters Patent Appeal No.88 of 2007 construction of the building was due to reasons beyond his control. If the allottee fails to do so, the plot was liable to be resumed and the money paid liable to be forfeited. Record reveals that on account of non-construction, a notice to resume the plot was issued to the respondent on 14.3.2001 (P-15). Respondent filed a reply to the same on 4.4.2001, stating that due to a dispute with regard to some area in the plot, the construction was not raised. It was further averred that five years period, to raise construction should commence only when possession of the entire land is delivered to it. Possession of the area measuring 4 feet x 2 feet was also delivered to the respondent in the month of April 2001. Thereafter, the respondent took a conscious decision and moved an application on 26.11.2001 (P-19) for surrender of the plot. In the said application, many reasons were given for surrender, however, most pressing reason given was existence of the cremation ground near the plot in question. Some of the grounds taken therein read as under:- ”15. That it is only vide your Memo No.A-Institution- 505/8612 dated 13.8.2001 that you have intimated us after a lpase of more than 6 years of the allotment that the “plot in question is clear from all disputes and possession can be taken on any working day.” 16. That immediately upon receipt of the said letter we have inspected the site and are shocked to find that the residents of Jharsa village have been allotted the adjoining Plot No.9 as a permanent cremation ground. 17. That it is absolutely incomprehensible as to how a prestigious institutional area designed to house elitist 8 Letters Patent Appeal No.88 of 2007 corporate offices can accommodate within the same area a cremation ground. 18. That the daily procession of mourners accompanied with the all – pervading acrid smell of burning bodies cannot be countenanced by the entire corporate sector, more particularly our Company whose plot of land stands right next to the cremation ground. 19. That it is manifest that it is only because of the solemn promise held out by you that you were brining into existence an institutional area that would carry within it the ambience characteristic of such commercial centres all over the world that we were induced into applying for and buying the subject plot of land. 20. That if we have been informed of the existence of a cremation ground right in the heart of the institutional area we would never have made the subject purchase; indeed all the existing plot owners would abandon their plans of constructing their corporate offices in the ECHELON institutional area if they were to learn of the existence of the said cremation ground.” After stating the above reasons for surrender of the plot, in the application, the following prayer was made:- “21. That under the circumstances and in view of the fact of your stipulation placing a bar on the transfer of the subject plot of land, we are left with no other option but to surrender the subject plot of land to you and request you to refund the payment made by us in the sum of Rs.2,31,05,789/- 9 Letters Patent Appeal No.88 of 2007 along with interest calculated at the rate of 18% per annum from the dates of payments of various installments, which interest amount works out to a sum of Rs.2,06,59,367/- and the aggregate amount refundable by you thus works out to Rs.4,37,65,156/-; needless to mention that our demand for interest is justified in view of your having levied interest on the payments made by us in installments.” The prayer for surrender of the plot was reiterated vide letter dated 10.3.2003 (P-21). As per record, the appellant accepted the request made by the respondent and refunded 90% of the amount paid towards price of the plot in question. After receipt of 90% of the amount, respondent started claiming refund of 10% of the remaining amount also. When that request failed to get any response, he came to this Court in CWP No.7237 of 2003. In the said writ petition, a prayer was made only for refund of the money and not for return of the surrendered plot. The prayer made in the above said writ petition reads thus:- “A writ of mandamus or any other writ or order directing the respondent to make a payment to the petitioner in the sum of Rs.3,06,36,495/- with further interest @ 18& per annum till the date of payment.” The amount claimed by the respondent was towards balance 10% of the amount paid, cost of construction, cost incurred on providing security at the spot and damages. No prayer was made for return of the plot in question. The said writ petition was disposed of on 24.3.2005 by an order made in the following words:- “Learned counsel for the parties are ad idem that the representation/ communication addressed by the petitioner 10 Letters Patent Appeal No.88 of 2007 dated November 26, 2001, copy Annexure P19, be decided by the respondents by way of taking a conscious and cautious decision thereon and that all the circumstances be kept in view while taking the aforesaid decision. Learned counsel for the petitioner states that the petitioner be given liberty to supplement the letter by way of a detailed representation. If such supplementation is made within 15 days from today, the decision together thereon shall be taken by the competent authority within two months from the date of receipt of certified copy of this order. It is further observed that if the relief grantable accrues to the petitioner, the same be passed on accordingly within 15 days thereunder. If any adverse order is passed the petitioner would be at liberty to challenge the same in accordance with law.” Record reveals that thereafter respondent filed a detailed supplementary representation on 4.4.2005 (P-24). Even in that application, no prayer was made for return of the plot. Claim was only with regard to payment of amount, as mentioned in earlier part of this order. Relevant prayer in the above said representation reads thus:- “We therefore request the favourable consideration of our demand in the sum of Rs.3,06,36,495/- along with further interest calculated from 1.5.2003 till the date of payment on the said sum of money.’ On rejection of the prayer made for refund of money vide order dated 29.11.2005 (P-25), respondent filed CWP No.428 of 2006. In the first instance, in that writ petition also, no prayer was made for return of the plot. For the first time, when amendment of the writ petition was allowed vide 11 Letters Patent Appeal No.88 of 2007 order dated 9.10.2006, a prayer for return of the surrendered plot was also made by the respondent. Sequence of events narrated above, clearly indicates that at no point of time, was the respondent interested in return of the plot. Surrender of the plot was a conscious decision, as is apparent from the application dated 26.11.2001 (P-19). It is an admitted fact that after getting possession of the land, in dispute, respondent failed to raise any construction within the stipulated period of five years. Appellant issued notice under Section 17(3) of the Act for resumption of the plot and forfeiture of the amount paid. Without making any application for extension of time for construction, respondent decided to save its money by surrendering the plot. Otherwise, in view of violation of the terms and conditions of allotment, plot was bound to be resumed. Even thereafter, at no point of time, was a prayer made for return of the plot as is evident from the successive applications made by the respondent. The said relief was also not claimed in the writ petition earlier filed by the respondent. If the respondent was interested in the return of plot a prayer to that extent ought to have been made when CWP No.7237 of 2003 was filed in this Court, which was disposed of on 24.3.2005. Even in representation made under orders of this Court, referred to above, no prayer was made for return of the plot. Same was the situation when CWP No.428 of 2006 was initially filed. The facts mentioned above clearly makes out a good case to apply principles of constructive res judicata against the respondent. In view of facts of this case, we are of the opinion that it was not open to the respondent to claim return of the plot once it had failed to make any such prayer in the successive representations made by it and in the Civil Writ Petition earlier filed. After receipt of 90% of the amount paid, the 12 Letters Patent Appeal No.88 of 2007 respondent was not supposed to take a summersault, to claim remaining 10% of the amount and then to go further to claim return of the plot on frivolous grounds. Reading of applications Annexures P-19, P-20 and P-24, indicate that the claim of the respondent was only for money and not for return of the plot. When passing the impugned order, learned Single Judge has erred in not taking note of the above said fats. Under similar circumstances, their Lordships of the Hon’ble Supreme Court in Ramadhar Shrivas versus Bhagwandas, (2005) 13 Supreme Court Cases 1, where plea which ought to have been taken, was not taken in the first instance, did not approve the raising of that very ground in the subsequent litigation. It was observed as under:- “21. In our opinion, the learned counsel for the appellant is also right in submitting that the rule of constructive res judicata applies to the present case. The expression ‘matter in issue’ under Section 11 of the Code of Civil Procedure, 1908 connotes matter directly and substantially in issue actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits. A matter is constructively in issue when it ‘might and ought’ to have been made a ground of defence or attack in the former suit. Explanation IV to Section 11 of the Code by a deeming provision lays down that any matter which ‘might and ought’ to have been made a ground of defence or attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue in such suit. 13 Letters Patent Appeal No.88 of 2007 22. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken