Civil Writ Petition No.10352 of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh. Civil Writ Petition No.10352 of 2008 Date of Decision: 27.10.2009 M/s U.R. Manufacturers & Exporters …Petitioner Versus Haryana State Industrial Development Corporation, Panchkula and Others. …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Naresh Parbhakar, Advocate for the petitioner. Mr. Dhiraj Chawla, Advocate for respondent No.1. None for respondent No.2. Mr. R.S. Bajaj, Advocate for respondent No.3. Kanwaljit Singh Ahluwalia, J. (Oral) M/s U & R Manufacturers and Exporters has approached this Court with a prayer that order dated 21.9.2006 (Annexure P10) whereby plot allotted to them was resumed be set aside along with order (Annexure P12) whereby the appeal preferred by the petitioner for setting aside the resumption order has been dismissed. Petitioner has averred that he was carrying on the business of manufacturing and exporting of sports goods, helmets and shinguards Civil Writ Petition No.10352 of 2008 2 at Delhi but he had to shift his business as the industries were restrained to carry business at Delhi. Therefore, on application made, petitioner was allotted plot bearing No. 1608, Phase 5, Rai Industrial Estate, Kundli measuring 450 sq. mtrs. Allotment letter dated 30.3.2001 has been attached as Annexure P1. A perusal of allotment letter (Annexure P1) reveal that petitioner was allotted plot at rate of Rs.6,75,000/-. Petitioner was called upon to deposit Rs.1,01,250/- so that 25% amount towards the cost is paid. As per conditions, petitioner was to pay the remaining amount in instalments. Petitioner has pleaded before this Court that on 24.9.2004 due to blood clotting, he was admitted in Maharaja Aggarsain Hospital, Punjabi Bagh, New Delhi and was discharged on 5.10.2004. Counsel has further relied on many outdoor slips of various private practitioners to say that petitioner was under constant medical care. The medical record has been annexed to show that this was the cause for not adhering to the schedule of payment of instalments to the respondent- Corporation. Medical prescription slips have been annexed as Annexures P2 to P6. A Show Cause Notice was issued on 24.8.2006 by the respondent-Corporation to the petitioner to show as to why the plot be not resumed for not making payment as per schedule of repayment of instalments and for failure to raise construction over the plot. This was followed by reminder (Annexure P7). Petitioner replied vide Annexure P9 wherein he has stated that he had deposited Rs.4,72,400/- out of the total amount of Rs.6,75,000/- and he will raise the construction over the plot. Vide Annexure P10, the plot was resumed on the ground that the Petitioner had not responded to the Civil Writ Petition No.10352 of 2008 3 Show Cause Notice and explanation given by him was not found satisfactory. Aggrieved against the order of resumption, appeal was filed. Grounds of appeal has been annexed as Annexure P11. The Appellate Authority which consisted of a Committee held that petitioner had not started construction of building on the plot as per draft supplied. He also had not started business as per the project report submitted. The primary concern of Haryana Industrial Development Corporation is that on a plot allotted at a subsidized rate, industry should start operations so that employment and revenue is generated in the concerned State and industrial development take place. The appeal was dismissed on 13.2.2007. The present writ petition was filed on 28.5.2008 and for the first time it was listed before the Bench on 2.6.2008. Case of the respondent-Corporation is that the present writ petition was preferred after 15 months of the passing of the order by the Appellant Authority, therefore, during that interregnum period they had allotted plot to one M/s Magic Lubricants Private Limited who has now been impleaded as respondent No.3. The plot was allotted at then prevailing rate which was Rs.13,50,000/-. The respondent- Corporation contend that since petitioner had not approached this Court and had taken 15 long months to do so, a third party right has been created. The allottee who has been impleaded as respondent No.3 has stated that he had paid 70% of the cost of plot as on October 2009. Counsel for the respondent-allottee submits that Rs.8,75,000/- has been paid to the respondent-Corporation. A Co-ordinate Bench, while adjourning the matter on 4.8.2009, had passed the following order:- Civil Writ Petition No.10352 of 2008 4 XXX XXX XXX XXX XXX XX “Plot allotted to the petitioner was resumed for non-construction. Counsel for the Petitioner states that the Petitioner shall pay balance amount towards price in lump sum within a period of three months and further that the construction shall be completed within a period of one year and also that an affidavit shall be filed with an undertaking that the petitioner shall not sell the plot in question to anybody, within next 15 years. Counsel further states that to compensate the new allottee, the Petitioner shall pay amount of interest towards the money deposited by respondent No.3 as per Bank rate and to compensate respondent No.3, he shall also pay 10% of the amount, at which plot has now been allotted to respondent No.3. Counsel for the respondents seek time to get instructions. On request, adjourned to October 22, 2009”. XXX XXX XXX XXX XXX XX Mr. Naresh Parbhakar, Advocate, appearing for the Petitioner, has relied upon various judgments of this Court and the Hon'ble Apex Court to contend that order of resumption should be passed as a last resort and profiting from a Citizen can never be the aim and object of the welfare State and a Citizen should not be deprived of his property. Two Division Bench judgments of this Court relied by counsel for the petitioner are, Anil Kumar v. Union Territory, Chandigarh and Others Civil Writ Petition No.10352 of 2008 5 2006(2) Recent Civil Reports 212 and Devinder Singh v. Chandigarh Administration 2001(3) Recent Civil Reports 691. Counsel has further relied upon M/s Gagan Foods Processors (P) Ltd. v. Union Territory, Chandigarh and Others 2003(2) Recent Civil Reports 645. Reliance has also been placed upon M/s Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and Others 2004 (2) Supreme Court Cases 130. A perusal of the judgment show that their Lordships after appreciating the entire catena of judgments, concluded as under:- XXX XXX XXX XXX XXX XX 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 therefor. 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”. XXX XXX XXX XXX XXX XX Therefore, whether the extreme power of resumption and forfeiture is justifiable or not will depend on the facts of each case. Their Civil Writ Petition No.10352 of 2008 6 Lordships have acknowledged, that no hard and fast rules can be laid in any case. In these circumstances, this Court has to consider following facts:- a) Petitioner failed to pay installments regularly. He failed to execute the project and raise the construction, therefore, the object of the Corporation that there is a growth and development of the industry was not achieved. Thus, neither there has been generation of employment nor revenue in the State. b) There was a delay of 15 months in filing the writ petition during which period a third party interest has been created and respondent No.3 has been allotted the plot. c) Petitioner was allotted the plot at a rate of Rs.6,75,000/-, whereas the subsequent allottee- respondent No.3 has been allotted the plot at the rate of Rs.13,75,000/-. d) Subsequent allottee has made 70% payment of the amount to the Corporation and has paid Rs.8,75,000/-. Taking all these facts into consideration, this Court is of the view that in case plot is restored to the Petitioner, not only Corporation will suffer a loss but a person who has been allotted the plot will unnecessarily suffer harassment. Furthermore, if the offer made by the Civil Writ Petition No.10352 of 2008 7 petitioner noticed in order dated 4.8.2009 is accepted, it will further complicate the matter. In these circumstances, order of resumption and order passed by the Appellate Authority cannot be set aside. However, this Court cannot become oblivious of the fact that the petitioner was incapacitated due to medical problem. Therefore, it is incumbent upon the Corporation to adopt humane approach and consider the case of petitioner sympathetically for allotment of a plot in the same Industrial Area in case any plot is lying vacant. The claim of the petitioner shall be considered within three months. In case, petitioner is denied the plot, he will be at liberty to approach this Court again. This Court expect that there will be no need for such as the Corporation will be compassionate enough to consider the petitioner eligible for the allotment. In case Corporation come to a conclusion that a plot is to be allotted to the petitioner, they may also explore the possibility of granting the plot to the petitioner at old rate. Needless to say, petitioner can be fastened with the interest as per prevailing norms. With these observations, the present writ petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge October 27, 2009 “DK”