IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. L.P.A. No.1285 of 2009 (O&M) Date of decision: 17.10.2011 M/s Bhardwaj Welfare Trust and another -----Appellants Vs. Estate Officer, HUDA & others -----Respondents CORAM:- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present:- Mr. Sanjay Kaushal, Advocate for the appellants. Mr. Pawan Kumar Mutneja, Advocate with Mr. Manish Bansal, Advocate for respondsent-HUDA. --- RAJIV NARAIN RAINA, J. 1. The instant appeal filed under Clause X of the Letters Patent calls in question the judgment and order dated 6.10.2009 passed by the learned Single Judge, dismissing the writ petition filed by the appellants against an order of resumption of a plot for non-construction of building within the stipulated period or extended period. 2. The facts in brief are that the petitioner-appellant was allotted a plot measuring 4 acres in Sector 16-A, Faridabad for setting up a 210 bedded hospital. It is not in dispute that the petitioner established on the said plot a hospital known as L.P.A. No.1285 of 2009 Sunflag Hospital & Research Centre. There is no further dispute in respect of this allotment. 3. The genesis of the dispute, in the present case, lies in a request of the petitioner-Trust to the Haryana Urban Development Authority (HUDA) for additional allotment of an adjoining plot of 4 acres next to the hospital with a view to set up a Paramedical Science Institute and Nursing Hostel attached thereto in two acres each. The petitioner succeeded in getting the allotment from HUDA on 20.7.1995. The buildings were required to be constructed within two years from the date of offer of possession. There is no dispute that the Trust was delivered possession of the plot by HUDA on 28.7.1995. It is also not disputed that the appellants paid the entire consideration of about `1.92 crores between the period from 4.7.1995 to 19.3.1996. Building plans for the Nursing Hostel were submitted on 6.12.1996 and for the Paramedical Institute on 19.3.1997. It is stated that the purpose of the Trust was to run a charitable hospital and that on 9.2.1996, the appellant-Trust moved the Central Government for permission to receive donations through foreign exchange. This permission is said to have been granted on 26.9.1996. The building plans for the Paramedical Institute were sanctioned by the competent authority on 31.12.1998 which was valid till 31.12.2000. The boundary wall is said to have been completed on 4.10.1999. Thereafter, HUDA by its letter dated 24.1.2000 demanded extension fee of `4,06,948/- for the year 2 L.P.A. No.1285 of 2009 1999-2000 and the appellant made good the payment. The building plans for the Nursing Hostel were sanctioned on 22.6.2000 which was valid till 22.6.2002. It is then averred that the hospital already in existence faced severe labour problems from 2000 to 2002 which resulted in closure of the hospital and the same was reopened in March, 2002. Its operations became normal by 2004. It is further averred that the appellant-Trust consists of NRIs and the new adventure of opening Paramedical Science Institute, Nursing Hostel and staff quarters required funding by way of donations through foreign exchange and for that, permissions were necessary from the Ministry of Home Affairs, Government of India. For receiving foreign contributions, the permission was granted by the Central Government on 27.10.2004. It is somewhat strange that the appellants having allotted 4 acres plot in the year 1995 sat back for a decade and then approached the Ministry of Health, Education and Welfare, Government of India, asking for No Objection Certificate to establish the additional institutes. The correspondence in this regard is dated 11.12.2004, 8.2.2005 and 13.9.2005. However, no steps were taken to start construction. Consequently, the HUDA issued notice under Section 17(4) of the HUDA Act on 17.6.2005. The appellants filed reply in response thereto on 18.7.2005 and 4.8.2005 and also woke up and applied for revalidation of building plans by its request dated 27.7.2005. Since the Trust had no valid explanation to offer for non- 3 L.P.A. No.1285 of 2009 construction, the Estate Officer, HUDA passed the resumption order dated 27.2.2006 for deliberately and intentionally delaying the construction. The appeal of the Trust before the Chief Administrator, HUDA was dismissed on 31.7.2006. Aggrieved by the appellate order, the appellant-Trust carried a revision petition to the Financial Commissioner against the orders of the Chief Administrator, HUDA which was also dismissed after hearing. Against the orders confirmed upto the Financial Commissioner, writ petition was brought to this Court. It is relevant to mention here that an amount of `1,75,88,531/- was refunded to the petitioner by HUDA by cheque dated 8.9.2008 after due deduction of 10% of the total amount, as per the terms of the allotment letter and physical possession of the plot was withdrawn by memo. No.41180 dated 9.9.2008 after giving due intimation to the petitioner. Subsequently, the writ petition preferred by the appellants was dismissed by the learned Single Judge by order dated 6.10.2009, upholding the order of resumption, giving rise to the present appeal. 4. We have heard Mr. Sanjay Kaushal, learned counsel for the appellants at length and have been taken to all the milestone documents on record. 5. Mr. Kaushal has submitted that the order of resumption was not justified, as it was punitive and should have been the last resort. He even placed reliance on a Full Bench judgment of this Court in Shri Ram Puri v. The Chief 4 L.P.A. No.1285 of 2009 Commissioner, Chandigarh 1982 PLR 388 that the severe labour problems faced by the appellants-Trust during the period from 2000-02 have broken the back of its flagship hospital adjoining the plot in dispute and that it was beyond its control, which had led to the delay. He also placed reliance on a judgment of Hon’ble the Supreme Court in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh and others (2004) 2 SCC 130. Mr. Kaushal went on to state at the bar that the appellant had filed a representation dated 10.2.2011 before the Chief Minister, Haryana-cum-Chairman, HUDA and that the same is still pending consideration. He further submitted that HUDA had issued revised policy on 2.4.2007 for extension of time limit upto 15 years for raising construction in case of residential/commercial premises. 6. A perusal of the public notice issued as per the Revised HUDA Extension Policy discloses that it relates to residential and commercial plots only. 7. On the other hand, Mr. P.K. Mutneja, learned counsel appearing on behalf of the HUDA has brought to our pointed attention a specific provision in the shape of Agenda Item No.A- 76 [14] (at page 176 of the paper book), which deals with grant of extension in time for construction of institutional sites. Institutional sites are distinct from residential/commercial sites, as per the circular relied upon by the appellants. Institutional sites are allotted to Government departments/Boards/Corporations/social 5 L.P.A. No.1285 of 2009 charitable trusts/religious institutions or philanthropic institutions and trusts on concessional rates with the stipulation to complete the construction on plots so allotted within a period of two years from the date of offer of possession. 8. In the present case, possession of the additional land was handed over on 28.7.1995. HUDA’s decision on the Agenda Item modified the old policy of 2 years to 3 years. The operative part of the decision so taken reads thus:- “….This would mean the institution sitesshall have to be constructed within a period of 5 years from the date of offer of possession (including 2 years usual time allowed without any extension fee).” Besides, we find that the benefit of the policy of extension in construction dated 5.11.1999 was given to the appellants by HUDA upto 19.7.2000. The appellants yet dilly dallied, procrastinated and slept over the matter and did not care to address itself to terms and condition No.21 of the allotment letter to complete the construction within two years from the date of offer of possession. 9. We have also perused the order of resumption passed by the Estate Officer, HUDA, Faridabad dated 27.2.2006 (Annexure P-14) as also the appellate and revisional orders and do not find any legal infirmity in the same. It is rather surprising to note that a Trust getting possession of the land through allotment by HUDA in 1995 would take 10 years to apply for No Objection 6 L.P.A. No.1285 of 2009 Certificate from the Ministry of Health, Education and Welfare, Government of India for the first time and to the Commissioner, Health, Family Welfare and Medical Education, Government of Haryana (Annexure P-7). Learned counsel for the appellants was unable to justify this aspect at the hearing. Institutes of such kind that the appellants wanted to start have regulatory laws governing them, for which permissions are required. No reasonable person wanting to start a Paramedical Science Institute or a Nursing Hostel and staff quarters would think of initiating the project without simultaneously applying for permission required by regulatory laws. Learned Single Judge in his well reasoned order has rightly held that the resumption order was passed as a last resort with no option left to HUDA in the facts and circumstances of the case and therefore, the ratio of the law laid down in Shri Ram Puri (supra) would not apply. The conduct of the appellants throughout has not remained above board. We see no bona fide effort on the part of the appellants to execute the project. The limitations contained in the letter of allotment are contractual, voluntarily incurred and it would not be possible to permit either of the parties to depart from its conditions. Besides, Agenda Item No.A-76 leaves no scope to hold in favour of the appellants. 10. In this view of the matter, no ground is made out to interfere with the view taken by learned Single Judge. 11. The appeal is dismissed. (M.M. KUMAR ) ( RAJIV NARAIN RAINA ) 7 L.P.A. No.1285 of 2009 ACTING CHIEF JUSTICE JUDGE October 17, 2011 ak 8