Regular Second Appeal No. 1270 of 2010 -1- In the High Court of Punjab and Haryana at Chandigarh Regular Second Appeal No. 1270 of 2010 (O&M) Date of Decision: December 06, 2010 Haryana State Industrial Development Corporation(HSIDC) and others ---Appellants versus M/s Swarn Singh Khurana and sons ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Dhiraj Chawla, Advocate, for the appellants Mr.H.P.Verma, Advocate, for the respondent *** GURDEV SINGH, J. The suit filed by M/s Swaran Singh Khurana and Sons, respondent-plaintiff for declaration to the effect that the letter dated 1.3.2005 for resumption of plot No. 390, situated in Industrial area Bahri (hereinafter referred to as “the plot”) is illegal, void, null, nonest, inoperative and not binding on his rights and also for mandatory injunction directing the appellants-defendants to deliver the possession of the plot to him after filling the earth and removing the shops, was dismissed Regular Second Appeal No. 1270 of 2010 -2- by Additional Civil Judge(Senior Division), Ganaur, vide judgment and decree dated 23.7.2008. He preferred first appeal against that judgment and decree which was accepted by Additional District Judge, Sonepat, vide judgment and decree dated 14.11.2009, and his suit was decreed for declaration to the effect that the resumption letter is illegal and void and a direction was issued to defendants to handover the physical possession of plot No. 390 to him within three months of the passing of the decree after giving notice to the plaintiff and demarcating that plot at the spot. A further direction was issued to the plaintiff to comply with the terms and conditions of RLA, after obtaining the physical possession. Feeling aggrieved by that judgment and decree of the First Appellate Court, the defendants have preferred the present second appeal. The case of the plaintiff is that he was allotted the plot in lieu of plot No. 206 at the tentative price of `23,40,000/-. The defendants issued letter dated 7.8.2001 for physical possession of plot No. 206 in stead the plot. Accordingly, he had written letter dated 23.8.2001 to them. The second letter dated 31.8.2001 was received from the side of the respondents for getting possession of the plot. He has already paid all the instalments in respect of the plot by stipulated time. Notice dated 15.7.2004 was issued by the defendants for resumption of the plot and called upon him to file his reply within 30 days. He filed his reply to that notice, mentioning therein that the defendants failed to deliver the possession of the plot till the submission of that reply. Another letter was written by him to the defendants that the plot cannot be demarcated as the same was surrounded by pond and shops had been constructed in front thereof, which were to be removed for demarcating the plot and for delivering the physical possession Regular Second Appeal No. 1270 of 2010 -3- to him. He personally appeared before the defendants and submitted documents in the form of photographs and VCD in order to show that the plot was heavily water logged and it was not possible to carry out the demarcation thereof. Still the defendants illegally resumed the plot, vide the impugned letter dated 1.3.2005. The suit was contested by the defendants. In their written statement they admitted that the plot was allotted to the plaintiff in lieu of plot No. 206. They also admitted the issuance of the impugned letter regarding the resumption of the plot after giving opportunity of hearing to the plaintiff. They denied the other contentions made in the plaint and inter alia pleaded that the plot was resumed after giving full opportunity to the plaintiff and after he failed to comply with the conditions of the allotment of the plot. Sufficient opportunities were given to him to take physical possession and to settle the factory. He neither took the physical possession nor started business. The order of resumption was passed after giving a number of notices dated 24.6.2004, 4.8.2004 and 10.9.2004. They also averred that as per the letter of allotment dated 5.3.2001 and agreement of allotment dated 11.5.2001, it was not their responsibility to level the plot or level the uneven site. The allotment was made on “as is where is basis” and as such the plaintiff himself was responsible for levelling the plot, if uneven. In case of non-construction of the factory within three years, the plot was to be resumed. It was on account of non-fulfillment of the conditions of the allotment letter and the agreement that the plot was resumed. In replication to the written statement, plaintiff denied all the contentions raised therein and reiterated his averments made in the plaint. Regular Second Appeal No. 1270 of 2010 -4- On the pleadings of the parties, following issues were framed by the learned trial court:- 1. Whether the resumption order dated 1.3.2005 with regarding to the plot No. 390 in question is liable to be declared null and void. If so, to what effect?OPP 2. Whether this Court has no jurisdiction to entertain and try the present suit?OPD 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the suit of the plaintiff is bad for want of serving prior notice upon the defendants under Section 80 CPC?OPD 5. Relief. In support of his case plaintiff himself entered the witness box as PW-1 and examined Ashok Kumar Sharma, Advocate, PW-2, Kanwar Sen, PW-3, Umed Singh, Photographer, PW-4 and Kulbir Singh, Assistant Manager, PW-5. On the other hand, defendants examined Inderpal Singh, Supervisor, DW-1. After going through the evidence, so produced on the record and hearing counsel for both the sides, learned trial court decided all the issues against the plaintiff and resultantly dismissed his suit. As already said above, the first appeal preferred by the plaintiff was accepted and his suit was decreed. I have heard learned counsel for both the sides. It has been submitted by counsel for the defendants that in view of the well reasoned findings recorded by the trial court, having been upset by the First Appellate Court without assigning any plausible reason, Regular Second Appeal No. 1270 of 2010 -5- substantial question of law arises in the present appeal. The plaintiff did not fulfill the conditions of allotment, as mentioned in the allotment letter and the agreement, which was subsequently entered into between the parties, by not raising the construction within one year and by not starting the production within three years of the offer of the possession of the plot. Therefore, the impugned letter, resuming the plot, is legal and valid. The main plank of the plaintiff is that the plot so offered to him was uneven, which was not levelled by the defendants and as such the breach of terms and conditions was on the part of the defendants. It was not one of the condition of the allotment of the plot but was sold on “as is where is basis”. On the other hand, it has been submitted by the counsel for the plaintiff that it is not the main ground of the plaintiff that the impugned letter is illegal and void on the ground that the plot, the possession of which was offered to him, was uneven. His main contention is that this plot was in the pond itself and it was not possible to demarcate the same and to offer the possession thereof to him. Counsel for the defendants has mainly relied upon the statement of the Draftsman examined by the plaintiff in order to show that the plaintiff is estopped from raising the plea that the plot was not demarcable. No doubt, that Draftsman stated before the trial court that he prepared the site plan of the plot , so pointed out to him by the plaintiff but the plaintiff is not bound by the statement of that witness. Trust worthy and reliable evidence was produced by him to the effect that there were shops in front of the said plot, which were to be removed and that the same was surrounded by pond on all the sides and as such, it was not possible to demarcate the same. In such a situation, it was not possible for the Regular Second Appeal No. 1270 of 2010 -6- defendants to offer the possession of any such plot to the plaintiff. First they were to demarcate the plot, only then they could have offered the possession thereof. Keeping in view the above discussion, it cannot be said that the findings of the First Appellate Court are based on the misreading of the evidence or are perverse. No substantial question of law arises in this appeal and the same is hereby dismissed. (GURDEV SINGH) JUDGE December 06, 2010 PARAMJIT