M.D., H.S.I.D.C. and Ors. Vs. M/S. Hari
Om Enterprises and
ANR.  INSC 964 (16 May 2008)
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 1089 OF 2008 [Arising out of SLP (Civil) No. 14074 of 2006] M.D.,
H.S.I.D.C. and Ors. ...Appellants Versus M/s. Hari Om Enterprises and Anr.
CIVIL APPEAL NOs. 4090,4130,4091,4092,4093,4094,4095,4097,4098 OF 2008 [Arising
out of SLP (Civil) Nos. 16541, 16708, 16711, 19833, 19916, 19949, 20235, 17426,
18011 OF 2006] CIVIL APPEAL NOs. 4099,4101,4100,4102 OF 2008 [Arising out of
SLP (Civil) Nos. 2331, 2343, 2702 and 2891 OF 2007]
S.B. SINHA, J :
Validity of orders of recession of
allotment of industrial plots and resumption thereof by the appellants herein
is in question in this batch of appeals.
2 With a view to appreciate the
questions involved herein, the factual matrix of the matter, however, would be
noticed from Civil Appeal arising out of SLP (C) No. 14074 of 2006.
Appellant - Corporation is a
public sector undertaking. Its principal function is allotment of industrial
plots belonging to the State of Haryana. It was set up as a catalyst for
promoting economic growth and accelerating the pace of industrialization. It
not only provides financial assistance to the industrial concerns by way of
term loans; it also develops infrastructure for setting up of industrial units.
The Corporation also invests money in developing the industrial estates at
strategic locations. In exercise of its functions, it also allots industrial
plots to entrepreneurs for setting up their industries on "no profit no
basis. The entrepreneurs,
according to the Corporation, must be the deserving ones. For the said purpose,
it keeps in mind the principle that allotment of land should not be made to
speculators who invest in property for getting high returns on escalation of
Respondent No. 1 is a partnership
firm. It was previously known as M/s. Dysa International (Firm). It applied for
allotment of 1000 sq. m.
size plot in IMT, Manesar. The
Allotment Committee of the Corporation 3 having found the respondent to be
eligible for allotment, allotted plot No.
177 in Sector 6, IMT, Manesar
measuring 1012.50 sq. m. wherefor a letter of allotment was issued on
We may notice the relevant clauses
Note appended to Clause 3 of the
said letter of allotment states that in the event of failure to comply with the
terms and conditions by the Regular Letter of Appointment (RLA) holder, the
allotment of an Industrial plot/ shed, within the stipulated period, the RLA
shall automatically lapse and 10% application money deposited towards the cost
of the plot/shed shall be refunded without any interest. However, if the
allottee makes a request for the surrender of the plot/shed after complying with
the terms and conditions, then the Principal amount will be refunded without
any interest after making a deduction of 10% of the cost of the plot/shed.
Clause 4 provides for other Terms
and Conditions governing schedule of payment of the balance 75% of the price of
4 Clause 6 provides for the
consequences of non-payment of the balance amount or non-fulfillment of the
terms and conditions of the Letter of Allotment/Agreement. In such an event,
the RLA shall stand withdrawn with the resumption of the plot/shed and refund
of the deposit without any interest with 10% deduction.
Clause 8 provides for the Schedule
of Construction and "Going into Production". It mandates the allottee
to commence construction of building as per the approved building plans within
a period of one year from the date of the offer of possession. The allottee
will be required to start commercial production within a period of three years
from the date of offer of possession. Extension for commencement of
construction can be granted for 6 months maximum if circumstances were beyond
the control of the allottee. Similarly, extension of one year can be granted
for commencement of commercial production for reasons beyond its control and
only if 10% of the permissible area has been constructed and effective steps
taken for completion of project subject to payment of the extension fee.
5 An allottee will be deemed to
have completed the project if he constructs minimum 25% of the permissible
covered area and starts commercial production within the period specified
Clause 14 provides for
consequences of non-adherence to the schedule of payment and schedule of
implementation. In such an event and on an unsatisfactory reply to the show
cause notice, the HSIDC is empowered to the plot/shed and the principal amount
is to be refunded without payment of interest and after deduction of the 10% of
Clause 26 provides for the
resumption of plots by HSIDC in the event of non-compliance of the terms and
conditions after giving show- cause notice therefor. The principal amount will
be refunded without payment of interest and after deduction of the 10% of the
plot/shed without interest. The allottee will be free to remove the
structure/debris within a period of 2 months of resumption order at his own
cost. The allottee will not be entitled to any payment/compensation for
building constructed by it on the resumed plot.
6 Clause 27 provides that no
restoration of resumed plots shall be allowed.
The agreement also provides for an
appeal against the order of the competent authority of the Corporation before
the Commissioner, Industries, Government of Haryana.
An offer of physical possession
was made to the firm by the Corporation by a letter dated 20.12.2001 wherein
the schedule of payment in five instalments beginning from 1.07.2002 to
1.07.2004 was specified.
It was furthermore stipulated:
"...You are, therefore,
requested to deposit the installments along with interest @ 18% per annum from
the date of offer of possession on the due dates otherwise you would be liable
to pay penalty equivalent to 10% of the amount due and if you fail to pay the
penalty within the prescribed period which would be specified by the Estate
Manager, the plot would be liable for resumption after affording you
opportunity of personal hearing before MD/HSIDC."
It, however, appears that handing
over of actual possession took some time and possession was handed over only on
8.12.2003. At the 7 time of handing over of possession, the area of the land,
measurement thereof as also the boundaries were delineated.
Indisputably, Respondent No. 1
herein filed an application for construction of the building on 19.12.2003.
Indisputably, again the permission for construction of the buildings was to be
granted only by the Corporation. The Corporation itself granted permission only
on 20.03.2004 whereafter the construction started. It was completed in May,
The Corporation, however, by a
letter dated 13.07.2004 asked the firm as to what steps had been taken by it
for constructions of the plot in question with documentary proof as also need
to apply for extension on the premise that offer of possession was issued on
1.01.2002 and the construction activity, thus, was required to be started
within one year therefrom and production of the Unit should have been started
from the date of offer of possession.
Respondent No. 1 intimated about
the change of the constitution of its firm. It by a letter dated 30.11.2004
"We could not start the
construction on the above mentioned plot, due to some financial constraints. We
are pleased to inform you that 8 we have been able to arrange sufficient funds
for the construction and have already started the construction of your factory
at the above mentioned plot. The factory will be operational within three
months. Since we have the building plans approved by your department and have
obtained temporary connections for water and electricity, the construction is
going on in full swing.
Regarding the balance amount,
enclosed please find Demand Draft No. 000433 for Rs.
908461/- drawn on HDFC Bank. This
clears our account as mentioned in your letter. Copy of the approval of the
building plan is attached herewith for your reference."
Despite the same, as no action was
taken, a legal notice was issued by the Respondent No. 1 through its lawyer
dated 1.03.2005 inter alia drawing its attention to :
(i) Actual physical possession had
been handed over on 9.12.2003 and the building plans were approved by the
Corporation on or about 20.03.2004.
(ii) Steps for construction had
been intimated to the Corporation together with a letter for extension of time.
(iii) Pursuant to the show cause
notice dated 2.11.2004, a sum of Rs. 9,08,461/- had been remitted.
9 (iv) 25% of the construction had
been completed and despite the same the land was said to have been resumed
without issuing any show cause notice although the respondent had already
deposited the said sum.
The Corporation was asked to
withdraw the said notice of resumption.
By an order dated 3.03.2005,
however, the plot was said to have been resumed inter alia on the premise that
Respondent no. 1 had violated Clause 4 of the said Agreement. A demand draft of
9,08,461/- was not accepted and a
cheque for a sum of Rs. 6,83,349/- towards the refundable amount as also the
demand draft for the said sum of Rs. 9,08,461/- were returned.
Admittedly, an appeal preferred
thereagainst has been dismissed.
Respondent No. 1 aggrieved by and
dissatisfied therewith filed a writ petition before the Punjab and Haryana High
Court. A Division Bench of the High Court by reason of the impugned judgment
while setting aside the order of resumption as also the order of the appellate
authority dated 27.05.2005, directed:
10 "...The plot in question
stands restored back to the petitioner. The amount refunded by the Corporation
to the petitioner shall be repaid to the Corporation within a period of two
weeks from the date a certified copy of this order is received.
The respondent - Corporation would
be at liberty to inform the petitioner through a written communication, if
there are still any outstanding dues against the petitioner - firm.
On receipt of the aforesaid
communication, the petitioner - firm shall be required to clear all the aforesaid
outstanding dues also, within a further period of two weeks thereof. It is made
clear that if the payments as notice above are not made by the petitioner -
firm, the present petition shall be deemed to have been dismissed."
Mr. A. Saran, the learned Additional
Solicitor General appearing on behalf of the appellants, would submit:
No. 1 admittedly having violated the terms and conditions of contract, the High
Court acted illegally and without jurisdiction in issuing the impugned
Court could not have entertained a writ petition in a matter arising out of a
contract qua contract. It in any event it could not have condoned the delay in
Court could not have re-written the contract.
11Respondents were not only
aware of the terms of contract, they acted thereupon and as such they are estopped and precluded from contending that the date of actual handing over of
physical possession would be the relevant date.
event, as before the High Court the appellants in their counter-affidavit
categorically denied and disputed the assertions made in that behalf by the
respondents herein, such disputed question of fact could not have been gone into
by the High Court in exercise of its writ jurisdiction.
Taking any view of the
matter, the High Court should have considered as to who was to be blamed; the allottees or the Corporation and only upon arriving at a finding of fact that
the respondents were not handed over actual physical possession despite all
attempts made by them to obtain the same, the date of handing over of actual
possession could have been held to be a relevant one.
Mr. Puneet Bali, learned counsel
appearing on behalf of the respondent no. 1, on the other hand, would submit:
12Appellant in its list of
dates has suppressed the fact that actual physical possession had been handed
over only on 8.12.2003 and despite the fact that within a period of seven days,
the `Firm' applied for sanction of the building plan, the same had been issued
only on 20.03.2004, thus, the building having been completed within a period of
14 months and commercial production having been started, the terms of the
contract had not been violated.
In any event
of the matter, the show cause in respect of resumption of land could be issued
only upon demand of penalty and not prior thereto.
for resumption of land and/ or forfeiture being draconian in nature could have
been taken recourse to by the Corporation only as a last resort.
Allotment of industrial plot
keeping in view the object and purport for which the Corporation had been
constituted and incorporated must be held to be a governmental function. In a
case of this nature where the aim and object of the Corporation as also the
State is to encourage industrialization while adjusting equity, the purpose for
which the Scheme was made would be a relevant factor. Only because allotment of
13 land has been effected through a letter, the same by itself does not make such
allotment and/ or the provisions contained therein to be matters within
`private law domain' as contra-distinguished from `public law domain'. The
State exercises deep and pervasive control over the activities of the
The parties themselves agreed that
despite the fact that the Corporation is a juristic person, an appeal against
its decision shall lie to the Financial Commission of the State. Indisputably,
the function of the appellant is a sovereign function. It, in any event is a
State, within the meaning of Article 12 of the Constitution of India. Its
action, therefore, must be fair and reasonable so as to subserve the
requirements of Article 14 of the Constitution.
In the aforementioned backdrop,
the issue involved in the matter must be determined.
The letter of allotment dated
10.01.2001 indisputably sets out the terms and conditions thereof. But, the
same is not exhaustive. The terms and conditions were supplemented by the
Corporation itself in its letter dated 20.12.2001 when offer of handing over
physical possession was 14 made, by reason whereof not only a period of two
years was provided for deposit of instalement along with interest at the rate
of 18% per annum but also a provision had been made that in the event of
failure to adhere to the schedule enumerated therein, penalty equivalent to 10%
of the amount due would be levied. It was furthermore laid down that in the
event of failure of the `firm' to pay the amount penalty within the prescribed
period, the plot would be liable for resumption. The terms and conditions of
letter of allotment would clearly show that resumption of the plot is not
The question as to whether the
allottee had failed to comply with the terms and conditions was required to be
determined. The terms of the contract would have to be construed having regard
to the respective rights and obligations of the parties to perform their part
of contract. It provides for issuance of a show cause notice. It provides for
refund of the principal amount, of course, without any interest.
Resumption of plot, it is trite,
would not be automatic.
Clause 26 provides for an enabling
clause. The decision of the Corporation is not final. An appeal lay
15 The jurisdiction of a `State'
to resort to the drastic power of resumption and forfeiture ordinarily should
be undertaken as a last resort.
Keeping in view the fact that the
Corporation was obligated to comply with the principles of natural justice and,
particularly, in view of the fact that was required to determine the capacity
as also bona fide of an entrepreneur to start an industrial undertaking on the
plots, the Corporation was required to assign some reasons as to why the plot
in question had to be resumed. While doing so, it evidently was required to
take into consideration its own conduct. A party cannot take advantage of its
own wrong. While a State takes penal action against the allottee, its bona fide
would be one of the relevant factors before an order of resumption and
forfeiture of the amount deposited is passed.
The particulars contemplated in
the letter of allotment as also the letter of offer of possession and the
procedures laid down therefor were required to be scrupulously complied with.
The letter of allotment as also the letter of offer of possession must be read
conjointly. The very fact that not only the amount specified therein was
required to be paid in instalments but also with interest at the rate of 18%
per annum, was required to be borne in mind. Thus, in a case where the allottee
had complied with the terms of allotment in the matter of payment of
instalments, the same would be a relevant factor for exercising the 16 enabling
clause of resumption by a `State'. Not only that, a further opportunity was
required to be given to the allottee even if there was some default on its part
inasmuch as the appellant itself provides for levy of penalty. The power of
resumption, thus, must be resorted to only in a case where despite grant of the
opportunities contemplated in terms of the letter of intent were violated.
Despite issuance of letter of
offer of physical possession dated 20.12.2001, the fact that actual possession
had not been handed over for a period of two years is not in dispute. The
Corporation did not say that actual possession was not taken by the respondent
despite offer having been made in that behalf. It, in its anxiety to set a time
limit for ensuring that the commercial production starts at an early date, was
expected at least to send a reminder. It failed and/ or neglected to do so. For
the purpose of approval of the building plan, the time taken by it also would
have been a relevant factor for passing an order of resumption.
We although do not intend to lay
down a law that all the aforementioned period should be excluded from
computation for the purpose of grant of notice of resumption, but there cannot
be any doubt 17 whatsoever that while judging the conduct of the parties, the
appellant was obligated to judge its own conduct in the matter.
A law far less a contract does not
warrant compliance of the contractual or statutory obligations where it is
otherwise impossible to do. An entrepreneur may start raising constructions
over a plot only when the physical possession thereof is handed over and/ or
plan for construction of the building is approved. A State cannot ignore the
aforementioned relevant factors.
It may be true that ordinarily in
a matter of enforcement of a contract qua contract, a writ court shall not
exercise its jurisdiction under Article 226 of the Constitution of India. But,
it is also trite that where the action of a State is violative of Article 14 of
the Constitution of India as being wholly unfair and unreasonable, the writ
court would not hesitate to grant relief in favour of a person, where both law
and equity demands that such relief should be granted.
Appellant being a
"State" within the meaning of Article 12 of the Constitution of
India, it without a justification cannot make any discrimination when the
parties are similarly situated. [See Mahabir 18 SCC 752, para 12] Moreover, the
act on the part of the respondent must be a reasonable and Others [(2007) 6 SCC
81, para 16] This Court in ABL International Ltd. and Another v. Export Credit
Guarantee Corporation of India Ltd. and Others [(2004) 3 SCC 553] laid down the
law in the following terms:
"28. However, while
entertaining an objection as to the maintainability of a writ petition under
Article 226 of the Constitution of India, the court should bear in mind the
fact that the power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provisions of
the Constitution. The High Court having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition. The Court has
imposed upon itself certain restrictions in the exercise of this power.
(See Whirlpool Corpn. v. Registrar
of Trade Marks) And this plenary right of the High Court to issue a prerogative
writ will not normally be exercised by the Court to the exclusion of other
available remedies unless such action of the State or its instrumentality is
arbitrary and unreasonable so as to violate the constitutional mandate of
Article 14 or for other valid and legitimate reasons, for which 19 the Court thinks
it necessary to exercise the said jurisdiction."
[See also Sanjana M. Wig v.
Hindustan Petroleum Corpn. Ltd.
(2005) 8 SCC 242 and Noble
Resources Ltd. v. State of Orissa and Another (2006) 10 SCC 236] In Kumari
Shrilekha Vidyarthi and Others v. State of U.P. and Others [(1991) 1 SCC 212],
this Court opined that even in contractual matters the State cannot act
"31...This decision clearly
shows that no doubt was entertained about the applicability of Article 14 of
the Constitution to an action of the State or its instrumentality, even where
the action was taken under the terms of a contract of tenancy which alone
applied by virtue of the exemption granted under the Rent Act excluding the
applicability of the provisions thereof."
Referring to M/s Dwarkadas
Marfatia and Sons v. Board of Trustees of the Port of Bombay [(1989) 3 SCC
293], this Court held:
"24. The field of letting and
eviction of tenants is normally governed by the Rent Act.
The Port Trust is statutorily
exempted from the operation of the Rent Act on the basis of its
public/governmental character. The legislative assumption or expectation as
noted in the observations of Chagla, C.J. in Rampratap 20 Jaidayal case cannot
make such conduct a matter of contract pure and simple. These corporations must
act in accordance with certain constitutional conscience and whether they have
so acted, must be discernible from the conduct of such corporations. In this
connection, reference may be made on the observations of this Court in Som
Prakash Rekhi v. Union of India reiterated in M.C.
Mehta v. Union of India wherein at
p. 148 this Court observed: (SCC p. 480, para 55) "It is dangerous to
exonerate corporations from the need to have constitutional conscience ; and
so, that interpretation, language permitting, which makes governmental
agencies, whatever their mien, amenable to constitutional limitations must be
adopted by the court as against the alternative of permitting them to flourish
as an imperium in imperio."
25. Therefore, Mr Chinai was right
in contending that every action/activity of the Bombay Port Trust which
within Article 12 of the
Constitution, in respect of any right conferred or privilege granted by any
statute is subject to Article 14 and must be reasonable and taken only upon
lawful and relevant grounds of public interest."
When time granted is flexible, the
constructions of the term may not lead to a conclusion that it is imperative in
character. In M/s. Jagdish Chand Radhey Shyam v. The State of Punjab and Others
[(1973) 3 SCC 428], this Court while interpreting Sections 8 and 9 of the
Capital of Punjab (Development and Regulation) Act, 1952 in the context of
Article 14 and 19(1) (f) of the Constitution of India, held as under:
21 "13. Section 9 speaks of
resumption of the site or building by the Estate Officer and forfeiture of the
whole or part of the money paid on account of consideration in the case of non-
payment of consideration money or instalment or breach of any condition of
transfer or breach of any rule.
14. Under the ordinary law of the
land it is open to the Government to enforce the charge and to recover the due
on consideration money, instalments or any other due from the transferee. It is
also open to the Government under Section 8 of the Act to proceed against the
transferee to realise the amount due on consideration money or on instalment or
any other due as an arrear of land revenue. Section 8 provides penalty for
default in payment of money and the recovery of the same as an arrear of land
revenue. These remedies are deterrent and drastic.
15. Section 9 of the 1952 Act
empowers the Government to forfeit the whole or any part of the money in case
of non-payment of consideration money or instalments or other dues for breach of
covenants. Under the ordinary law of the land there is relief against
forfeiture for breach of covenant or provisions.
Section 9 does not offer any
relief against forfeiture. This feature that the Government can proceed either
under the ordinary law of the land or under the 1952 Act shows that there is
discrimination. There is nothing in the statute to guide the exercise of power
by the Government as to when and how one of the methods will be chosen.
16. Section 9 confers power to
resume the site.
There is a charge on the land for
the unpaid consideration money. This charge can be enforced by instituting a
suit in a court of law.
22 The owner will have the
opportunity of paying the money and clearing the property of the charge. On the
other hand when the Government proceeds under Section 9 of the Act, to resume
the land or building the Government proceeds under the Punjab Public Premises
and Land (Eviction and Rent Recovery) Act, 1959. There is no guidance in the
Act, as to when the Government will resort to either of the remedies."
Although the provisions of the
aforementioned Act are not applicable in the instant case, Jagdish Chand
(supra) is being referred for showing that when two remedies to enforce a
contract are available, the power should be exercised in reasonable manner. So
construed, a harsher remedy may not ordinarily be resorted to.
The learned Additional Solicitor
General places strong reliance upon a decision of this Court in Indu Kakkar v.
Haryana State Industrial Development Corporation Ltd. and Another [(1999) 2 SCC
37]. Therein the lady had assigned her interest. One of the questions which
arose for consideration was as to whether such transfer was valid having regard
to the locus standi of the appellant therein. What was emphasized was that as a
rule the party cannot transfer its liabilities under the contract without
consent of the other party. It was in the aforementioned context, this 23 Court
considered the question of locus standi of the appellant therein holding:
"19. In fact, the question is
not whether there is any legal bar for the allottee to make assignment of the
plot. The real question is whether the assignee has a legal right to claim
performance of any part from the allottor. The answer of the said question
depends upon the terms of allotment. Assignment by an act of the parties may
cause assignment of rights or of liabilities under a contract. As a rule, a
party to a contract cannot transfer his liabilities under the contract without
consent of the other party..."
The said decision, in our opinion,
cannot be said to have any application.
Reliance has also been placed on
Orissa State Financial Corporation v. Narsingh Ch. Nayak and Others [(2003) 10
SCC 261] for the proposition that a writ court would not direct writing off the
amount due or waiver of the interest, stating:
"...The order, to say the
least, was beyond the scope of the writ petition which was being considered by
the High Court and beyond the jurisdiction of the Court in a contractual
No doubt, while exercising its
extraordinary jurisdiction under Article 226 of the Constitution the High Court
has wide power to pass appropriate order and issue proper 24 direction as
necessary in the facts and circumstances of the case and in the interest of
justice. But that is not to say that the High Court can ignore the scope of the
writ petition and nature of the dispute and enter the field pertaining to
contractual obligations between the parties and issue such directions annulling
the existing contract and introducing a fresh contract in its place."
The High Court, in our opinion,
has not re-written the contract nor waived the rights and obligations of the
We may notice that in Teri Oat
Estates (P) Ltd. v. U.T., Chandigarh and Others [(2004) 2 SCC 130], a Bench of
this court while interpreting the provisions of Section 8-A of the Capital of
Punjab (Development and Regulation) Act, 1952 opined that power of resumption
and forfeiture should be taken recourse to as a last resort.
While holding that each case may
have to be viewed on its own facts, the action of the statutory authority must
be judged on the touchstone of Article 14 of the Constitution of India.
This Court applied the doctrine of
proportionality having regard to a large number of decisions operating in the
field. This Court, however, 25 also put a note of caution that no order should
be passed only on sympathy or sentiment.
Doctrine of proportionality has
since been applied in Sandeep Subhash Parate v. State of Maharashtra & Ors.
[(2006) 8 SCALE 503] and Jitendra Kumar & Ors. v. State of Haryana &
Anr. [2007 (14) SCALE 125 : (2008) 2 SCC 161].
In State of Bihar and Others v.
Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] whereupon strong reliance
has been placed by Mr. Jaspal Singh to contend that in a given case, this court
may not exercise its discretionary jurisdiction under Article 136 of the
Constitution of India even if the order is found to be illegal. This court was
concerned with a service matter. It was held:
"36. It is further contended
that as the respondent was, in the meantime, appointed/promoted in the IPS
cadre and as per requirements of the State Government he has already submitted
his resignation from the State service, the acceptance of the appeal and
setting aside the directions of the High Court would result in great hardship
to him and amount to unsettling his settled service rights particularly when
his promotion/appointment to the IPS cadre has not been challenged and is not
in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the
appeal filed 26 against an order which we have held to be illegal being
contrary to law and the Service Rules applicable in the case. Once the judgment
is set aside, the consequences have to follow and a person taking advantage or
benefit of the wrong orders is to suffer for his own faults which cannot be
attributed to anybody else.
However, in appropriate cases this
Court can mould the relief to safeguard the interests of a person wherever
required. For doing complete justice between the parties, appropriate
directions can be given to protect the interests of a person who is found to
have been conferred the benefits on the basis of judicial pronouncements made
in his favour. As the appellant State has been found to be careless and
negligent in defending its cases, we feel and are inclined to protect the
interests of Brij Bihari Prasad Singh, respondent. We are convinced that the
interests of justice would be served by holding that despite setting aside the
judgments of the High Court, his interests be protected by not disturbing his
promotions made from time to time. However, judgments passed in his favour
cannot be permitted to be made a basis for conferment of similar rights upon
other persons who are shown to have filed writ petitions or representations
which, if accepted, are likely to adversely affect the interests of more than
150 Inspectors and 400 officers in the rank of Deputy SP. Similarly, if any
benefit has been conferred upon any other person who has superannuated, no
useful purpose would be served by directing his demotion retrospectively and
recovery of the excess emoluments paid to him."
27 Indisputably, the court can
balance the equities between the parties but the same does not necessarily mean
that in all cases this Court should refuse to exercise its discretionary
jurisdiction. Each case must be considered on its own merit and no hard and
fast rule can be laid down therefor.
We would consider the question
about the balancing equities between the parties in each individual case.
In a case of this nature, this
Court in exercise of its jurisdiction under Article 142 of the Constitution of
India may also consider rendition of individualized justice. [See Shyam Nandan
Prasad and Others v. State of Bihar and others (1993) 4 SCC 255] Our attention
has been drawn to the fact that the Punjab High Court in some of the matters in
Jaisy Designs v. MD. HSIDC [decided on 4th July, 2006] had issued similar
directions. A Bench of this Court, however, dismissed the special leave
petition being SLP (C) No. 12074 of 2006 by an order dated 7.08.2006.
However, another Bench of this
Court in Civil Appeal arising out of SLP (C) No. 20235 of 2007, presumably,
without noticing the said 28 order directed issuance of notice by an order
dated 4.12.2006. Following the said decision, even other Benches had issued
notice in other matters including Civil Appeal arising out of SLP (C) No. 14074
Reliance has been placed on State
of Kerala and Others v. P.T.
Thomas [(2005) 12 SCC 347] where
this Court having regard to the orders passed in number of cases in regard to
payment of interest dismissed the appeals inter alia taking into consideration
the said factor.
However, in P.T. Thomas (supra) it
was not the sole consideration. This Court noticed that payment of interest was
not an issue in the main writ petition and that was the principal reason in
dismissing the appeal.
We have noticed hereinbefore that
in Kameshwar Prasad Singh (supra), this court made a clear distinction between
an order which is illegal and, thus, the order being illegal the benefit
thereof would not be extended to persons similarly situated on the premise that
Article 14 is a positive concept.
In the instant case, the High
Court's jurisdiction is in question.
The learned counsel for the
parties have addressed us at great length on the individual merit of the
29 We, therefore, are of the
opinion that on the said ground alone, we would not refuse to interfere.
In Civil Appeals arising out of SLP
(C) No. 17426 of 2006, no opportunity had been given to the appellants to file
Even the High Court had proceeded
on the basis that equity demands that they should be given some extension of
time to perform their part of contract. It was submitted that even the doctrine
of proportionality is applicable in these cases in view of the decision of this
Court in Teri Oat Estates (P) Ltd. (supra).
The conscious decision taken by
the appellant that all allotments should be regularized in the event the
respondents pay the difference between the amount which has already been paid
and the rate prevailing on the date of judgment of the High Court should be
The learned counsel would contend
that even for the said purpose, suitable instalments could be fixed.
CIVIL APPEAL @ SLP (C) No. 19949
of 2006 HSIDC v. Sanjay Bansal 30 Respondents herein are directors of M/s. Shiv
Shakti Embroidery Pvt. Ltd. (Company). The Company was allotted an industrial
plot. An additional facility was granted to the industrial undertakings for
allotment of residential plots for their directors. Pursuant to and in
furtherance of the said policy decision to grant additional benefit, the
respondents were allotted residential plot No. 331 in Sector 1, Manesar.
The terms and conditions provided
for a schedule of payment, the relevant clauses whereof read as under:
"3. The balance amount of Rs.
10,69,200/- of the tentative price of the plot can be paid in lumpsum without
interest within 60 days from the date of issue of the allotment letter or in
six (6) half yearly installments. The first installment will fall due after the
expiry (6) six months of the date of issue of this letter. Each installment
would be recoverable together with the interest on the balance price at 15%
interest on the remaining amount the interest shall, however, accrue from the
date of offer of possession.
4. You are requested to remit Rs.
1,78,200/- in order to make the 25% price of the said plot within 30 days (upto
17.08.09) from the date of issue of this letter. The payment shall be made by
the Bank Draft payable to the HSIDC, Panchkula and drawn on any scheduled bank
at Panchkula. In case of failure to deposit the said amount within the above
specified period, the allotment shall be cancelled and the 10% earnest money
deposited alongwith the application shall stand forfeited to the HSIDC 31
against which you shall have no claim for damage.
5. The balance 75% amount i.e. Rs.
8,91,000/- of the above price of
the plot can be paid in lumpsum without interest within 60 days from the date
of issue of the allotment letter or in half yearly installments. The first
installment will fall due after the expiry of six months of the date of issue
of this letter. Each installments would be recoverable together with interest @
15% interest per annum on the remaining amount as mentioned in clause No.
Payments were made in the name of
the Company although allotment had been made in the individual names of the
respondents herein. The allotment of the said plot was cancelled on the premise
that payment has not been made in terms of Clauses 4 and 5 of the offer of
allotment dated 18.07.2003. A proceeding for resumption was initiated and by an
order dated 1.06.2004, the said plot was resumed. Aggrieved by and dissatisfied
therewith, a writ petition was filed.
The respondents in their rejoinder
"...Upon cancellation of the
allotment of plot in question, the said plot was included in the list of plots
available for allotment and pursuant to invitation of applications for
allotment of plots by way of advertisement in Newspapers, a draw of lots was
held on 1.6.2004, wherein 215 32 residential plots including the plot in
question were further allotted and the plot in question stands allotted to Shri
Suresh Chand Jain s/o Shri Hussan Lal Jain, resident of E-12, Bahubali Enclave,
Near Geetanjli Apartments, Karkardooma, New Delhi. Hence, the present petition
is liable to be dismissed on account of this score alone."
However, the said subsequent allottee
was not impleaded as a party. The High Court allowed the writ petition on the
premise that the respondents had deposited a sum of Rs. 1,78,200/- and in view
of Clause 3 of offer of allotment, it was for them to make payment in terms
In regard to the purported
conflict between Clauses 3 and 4, the High Court opined:
"If clause 3 is in conflict
with clause 4, the petitioners cannot be blamed to have opted for the
concession available to them in clause 3.
At no point of time, the
respondent Corporation had ever chosen to clarify that the petitioners were
required to make the payment exclusively in terms of clause 4 of the letter of
On account of inconsistency
between the provisions of clauses 3 and 4 of the letter of allotment, confiscatory
orders of cancellation could not have been passed by the Corporation against
At this stage, we may notice that
even as per the petitioners and as per the schedule of payment, by way of
instalments, the petitioners were liable to make payment of the entire amount
of plot upto July 2, 2006. However, 33 they could not make the payment of
instalments on account of cancellation order and on account of the fact that
the present writ petition has been pending in this Court.
We further notice that a plea
raised by the petitioners is that the order dated October 28, 2004 had never
been communicated to them. The petitioners have even maintained that the said
order had been ante-dated by the Corporation. The respondent Corporation has
however maintained that the said order was duly passed, although no details
have been given as to when the said order had ever been communicated to the
petitioners. We must also take note of the pleas raised by the respondent
Corporation that in pursuance to an advertisement on March 2, 2004, 215
residential plots including plot No. 331 had been allotted by way of draw of
lots held on June 1, 2004. However, no details of any such allottee have been
given in the written statement. While issuing notice of motion, this Court had
specifically directed that the re- allotment of the land allotted to the
petitiones would be subject to the final decision of the case."
We agree with the High Court that
Clause 3 of the said offer of the order of allotment dated 18.07.2003, on the
one hand, and Clauses 4 and 5, on the other, are irreconcilable. Payment to be
made under Clause 3 cannot be subject to the stipulations contained in Clauses
4 and 5. They are independent of each other. The allottee in terms of Clause 3
had an option. Mode of payment in terms of Clause 3, on the one hand, and 34
Clauses 4 and 5, on the other, are distinct and different. However, the High
Court was not correct when it directed that re-allotment of land would be
subject to the final decision of the case.
Cancellation of plot as also
reallotment thereof had been made in June 2004. The writ petition was filed in
July, 2005. The subsequent allottee, therefore, was a necessary party and in
his absence the writ petition should have been dismissed as not maintainable.
This Court in Rashmi Mishra v.
M.P. Public Service Commission and others [(2006) 12 SCC 724] observed:
"16. In Prabodh Verma this
Court held: (SCC pp. 273-74, para 28) "The first defect was that of
non-joinder of necessary parties. The only respondents to the Sangh's petition
were the State of Uttar Pradesh and its officers concerned. Those who were
vitally concerned, namely, the reserve pool teachers, were not made parties --
not even by joining some of them in a representative capacity, considering that
their number was too large for all of them to be joined individually as
respondents. The matter, therefore, came to be decided in their absence. A High
Court ought not to decide a writ petition under Article 226 of the Constitution
without the persons who would be vitally affected by its judgment being before
it as respondents or at least by some of them being before it as respondents in
a representative capacity if their number is too 35 large, and, therefore, the
Allahabad High Court ought not to have proceeded to hear and dispose of the
Sangh's writ petition without insisting upon the reserve pool teachers being
made respondents to that writ petition, or at least some of them being made
respondents in a representative capacity, and had the petitioners refused to do
so, ought to have dismissed that petition for non-joinder of necessary
(See also All India SC & ST
v. A. Arthur Jeen and Indu Shekhar
Singh v. State of U.P.)"
By reason of the judgment of the
High Court, the right of a third party has been affected. He without having
been impleaded as a party in the writ petition cannot suffer an adverse order
for which he is no way responsible. A statement has been made before us by the
learned Additional Solicitor General that no residential plot is available for
allotment. He, however, submits that as and when such a plot is available, the
same would be offered to the respondent. We may place on record the
aforementioned submission. However, we feel that the respondents were not to be
blamed for not depositing the amount.
Invocation of Clause 4 is clearly
illegal. We, therefore, are of the opinion that the respondent should be
suitably compensated on monetary terms. We direct the appellants to pay a sum
of Rs. 1,00,000/- to the respondents herein. We, however, also direct that
keeping in view the statements made at the Bar, as and when any residential
plot becomes 36 available, the same should be allotted to the respondents on
the same terms.
Civil Appeal arising out of SLP
(C) No. 19949 of 2006 is allowed in part and to the extent mentioned
Civil Appeal arising out of SLP(C)
No. 19916 of 2006 H.S.I.D.C. & Anr. v.. Mr. Ved Govil & Anr.
Respondent applied for and was
allotted an industrial plot at Manesar, Gurgaon by the Appellant Corporation.
Indisputably, it deposited a sum of Rs. 3,96,000/- being 10 per cent of the
total cost of the said plot. It, however, was not satisfied with the said
allotment. A prayer was made to change the plot which was accepted by the
appellant Corporation. He was allotted a plot No. 269 in Sector 7 on or about
9.7.2004. They were, however, not satisfied with the said allotment and made
another representation for change of plot. On or about 21.9.2004, the appellant
deposited an amount of Rs. 6,00,000/- towards 15% of the total price of the
plot. He was, however, required to deposit the said amount by 22.7.2004 which
was extendable by another 30 days on 37 interest at 11% per annum after
22.7.2004, but he failed to do so.
Appellant took a stand that the
letter of allotment elapsed automatically.
The amount of Rs. 3,96,000/- was
directed to be refunded. The bank draft sent by the respondent for an amount of
Rs. 6,00,000/- was also returned. The respondent filed a Writ Petition.
The High Court was of the opinion
that although respondent was required to deposit 15% of the price of plot on or
before 22.7.2004, but by clause 3 of the Letter of Allotment, the said amount
could be deposited by him within 60 days. The High Court accepted that there
had been a delay on the part of the appellant. The interim order was passed
directing the appellant to re-allot the plot, however the same was not
allotted. The High Court directed:
"Keeping in view the facts
and circumstances of the case, as noticed in the above portion of the judgment,
we allow the present petition and restore the allotment of plot No. 269, Sector
7, Manesar to the petitioner as per original terms of allotment.
Since the petitioner was required
to pay the entire amount, even by way of instalments upto January 16, 2007,
therefore, the petitioner is directed to make the total payment of the entire
amount towards the cost of the plot in question within a period of three months
from the date a certified copy of this order is received. On receipt of the
entire payment, the actual physical possession of the plot in question shall be
handed over to the 38 petitioner. The petitioner shall, however, remain bound
by all the terms and conditions of the letter of allotment."
It is a clear case where the
respondents have failed to abide by any of the terms of contract. It did not
deposit even the initial amount in time, there was no reason for it not to do
so. Even interest payable on the said amount had not been paid. The appeal
should, therefore, be allowed.
Civil Appeal arising out of SLP(C)
No. 19833 of 2006 H.S.I.D.C. & ORS. v. M/s. Paradise Engineers & Anr.
A plot admeasuring 1012 sq. meters
being plot No. 985, Sector-6, Manesar was allotted in favour of the respondent.
He requested for a change of plot. However, a regular letter of allotment was
issued on 23.1.2001. The final agreement was entered into on or about
However, possession was delivered
On the premise that respondent has
not complied with the terms and conditions of the agreement, a notice was
issued on 17.4.2003.
Respondent, however, was asked to
take physical possession of the land and also to apply for extension for the
purpose of starting construction by 39 the Estate Manager of the appellant
Corporation by a letter dated 24.4.2003. Pursuant thereto physical possession
was said to have been handed over on 6.5.2003. Respondent, thereafter applied
for grant of water connection on 1.7.2004. He submitted his building plan on
10.7.2004. Alleging that the ownership is in dispute, the plan was not
sanctioned. The Town Planner of the appellant asked the Senior Manager of the
Corporation to ascertain ownership status before the building plans could be
cleared. From an internal communication dated 21.7.2004, however, it appears
that building plans were not processed on the premise that ownership clearance
had not come from the Corporation. By a letter dated 23.8.2004, respondent
informed the concerned authority that the request of clearance of ownership
status was being pursued with the authorities of the appellant.
A show cause notice for resumption
of the plot, however, was issued on or about 21.9.2004 alleging that
construction work had not been started within a period of one and a half year
of the handing over of the possession and some amount was outstanding.
Respondents in their show cause,
brought the aforementioned fact to the notice of the concerned authority of the
appelalnt. It was requested 40 that the excess period for starting construction
may be waived by imposing some penalty. An assurance was given to start
construction on clearance of building plan and ownership status. It was pointed
out that the sum of Rs. 14,30,940/- had already been deposited.
Respondent filed a further reply
on 22.12.2004. No opportunity of personal hearing was granted. By an order
dated 7.3.2005, an order of resumption was issued. However, despite the same,
letters were written by the appellant communicating the respondent in respect
of certain errors in the building plans as would appear from the letters dated
8.4.2005 and 10.11.2005.
Building plans were re-submitted
by the respondent on 14.12.2005 whereto again some defects were pointed out
therein. In the meantime, the appellant preferred an appeal which was dismissed
by the Commissioner by an Order dated 16.2.2006.
A Writ Petition was filed which by
reason of the impugned judgment has been allowed.
41 In the Writ Petition inter alia
a contention was raised that the appellant had regularized the delay by extending
the period of construction even for a period of four years in favour of the
parties named therein which was not denied or disputed. It claimed parity with
the decision of the High Court in case of M/s. Jassi Designs Versus Managing
Director, HSIDC and Others being C.W.P. No. 4530 of 2005.
The SLP preferred thereagainst has
Mr. Prasenjit Keswani, the learned
counsel appearing on behalf of the respondent would submit;
principles of natural justice have not been complied with as no opportunity of
personal hearing was given to it. The order of resumption did not contain any
reason, there is nothing to show that the points raised deserved due
consideration at the hands of the concerned authorities.
respondent had been discriminated with insofar as the persons similarly situated
had been granted extension even for a period of four years and thus the
respondent was not meted with equal treatment.
could have cleared the building plan as the same was filed within the stipulated
42 Appellant cannot take
benefit of their own wrong.
with interest have already been paid.
In view of clause 10 of the
contract, the respondent being not permitted to transfer the land, it was bound
to engage itself only in industrial activity wherefor the allotment was
In this case, the respondent has
clearly been discriminated against.
Appellant's action is clearly
unfair and unreasonable. In any event, it has waived its right. Furthermore, it
was a case where the principles of natural justice should have been complied
The High Court in, this case, in
its impugned judgment has taken care to see that the object for grant of
allotment were fulfilled being promotion of industrial growth.
Applying the principles of law as
indicated hereinbefore, we are of the opinion that no case has been made out
for our interference with the impugned judgment. This appeal is, therefore,
Civil Appeal arising out of SLP(C)
No. 20235 of 2006 43 Respondent applied for and was allotted an industrial plot
vide its Regular Letter of Allotment dated 29.8.2001 at IMT, Manesar.
Thereafter, a final Agreement was
entered into between the parties on 24.9.01. On 4.11.01, physical possession
was offered to the respondent, which was not taken. Allegedly, no construction
was started by the respondent.
On 16.7.02, the appellant issued a
show cause notice to the respondent for its failure to take possession and set
up the industrial unit.
Respondent vide its letter dated
24.2.03 requested the appellant for handing over the possession. In response
thereto, the respondent was asked to clear the outstanding dues in regard to
the second installment.
Subsequently, the appellant by its
letter dated 14.5.03, asked the respondent to attend its office to take over
the possession of the plot.
Despite being handed the
possession on 17.6.03, no construction was commenced by the respondent. On
29.10.03, a show cause notice was issued to the respondent for failure to
Respondent vide its letter dated
7.11.2003, requested for six months extension. Thereafter, on 7.10.2004, a show
cause notice was issued to 44 the respondent as to why an order of resumption
should not be passed against him. On the failure of the respondent to satisfy
the concerned authority with regard to the delay in commencement of the
construction, the plot was ordered to be resumed vide letter dated 28.2.05. The
resumption order was challenged before the Commissioner of Industries, who, vide
its order dated 13.1.2006, dismissed the same.
Feeling aggrieved by the order,
the respondent herein filed a Writ petition before the High Court. The High
Court by its order dated 28.7.2006, allowed the said Writ Petition and quashed
the order of resumption.
Respondent had already appointed
an architect for construction of the building. It had already started
constructions. The fact that it was the Department which did not grant any
license. The Appellate Committee, however, did not consider this aspect of the
matter at all and thus the appellate orders suffered from total non-application
This Appeal is, therefore,
45 We may now consider the cases
where the High Court passed an order without assigning sufficient and cogent
reasons. It did not arrive at a finding of fact that the action on the part of
the appellants was unfair and unjust. We intend to notice the fact of these
Civil Appeal arising out of SLP
(C) No. 16541 of 2006 HSIDC v. S.R. Polysteel Respondent applied for and was
allotted an industrial plot in Industrial Estate IMT, Manesar, by the Appellant
Corporation. Allegedly, a dispute arose as regards handing over of the actual
possession of the said plot. Respondents contend that the entire 1st installment
along with interest was duly paid within the stipulated time except for delay
of 22 days. Indisputably, the appellant offered the respondent possession of
the plot and asked to commence construction by its letters dated 19.12.2001,
9.8.2002 and 11.11.2003. Respondents contend that though a request was made to
hand over possession by its letter dated 2.8.02 however, the same was not
Two show-cause notices dated
1.3.05 and 19.5.05 were issued by the appellant to the respondent. After giving
an opportunity of personal hearing to the respondent, the said plot was resumed
46 Respondent filed a Writ
Petition before the High Court which was disposed of on 8.08.2006 directing the
allottee to appear before the Appellate Authority. Thereafter, the appellate
authority dismissed the said appeal. Respondent then filed a Writ Petition
before the High Court.
The High Court while allowing the
petition quashed the resumption order and directed the respondent to complete
the construction of the industrial building within a period of six months from
the date of offer of the possession of the plot.
Civil Appeal arising out of SLP
(C) No. 16708 of 2006 HSIDC v. M/s. Dulari Exports Respondent applied for and
was allotted an industrial plot vide its allotment letter dated 14.6.2000 at
IMT, Manesar. On 14.8.2000, a Regular Letter of Allotment was issued to the
respondent which inter-alia required it to commence construction of the
building within a period of one year and commercial production within a period
of three years from the date of offer of possession. The said clause was also
incorporated in an Agreement dated 8.9.00 entered into between the two parties.
Indisputably, on 24.12.01, the
appellant issued a receipt for acceptance of three demand drafts to the
respondent towards payment of the installments. On 8.1.03, a show cause notice
was issued by the appellant 47 to the respondent regarding the failure to set
up the industrial unit. On 1.1.04, a show cause notice was issued to the
Respondent as to why the said plot should not be resumed in view of
non-commencement of construction and non-payment of the 4th and 5th
installments. Being dissatisfied by the reply so rendered by the respondent,
the appellant gave the respondent an opportunity of retaining the plot by
allowing him to convey his acceptance to buy the plot at the current price of
Rs. 2200/- per sq. meter.
Aggrieved by the order of
resumption, the respondent preferred an appeal before the Commissioner of
Industries on 9.2.04. The said appeal was rejected by the Commissioner on the
ground that the order of resumption was not final. Aggrieved by the two orders,
the respondent filed a Writ Petition in the High Court.
The High Court while dismissing
the Writ Petition on the ground that an appeal was pending before an
appropriate authority, however allowed the respondent to file its objections
against the order of resumption. On 26.2.04, the respondent filed its
objections. On 23.11.2004, the High Court dismissed the Writ Petition directing
the appellant to consider and dispose off the objections. On 27.6.2005, the 48
objections were dismissed by the appellant on the ground that the said plot had
become liable for resumption. However, before resumption, an opportunity was
given to the respondent to retain the plot at the current price of Rs. 2200/-
per sq. meter. The same having not being accepted by the respondent, the
objections were rejected by the appellant and the amount was refunded as per
the terms of the Agreement. Aggrieved by the said order, the respondent
preferred an appeal before the Commissioner. On 12.7.05, the appellant issued a
letter to the respondent intimating the withdrawal of the possession of the
plot. Aggrieved by the order and during the pendency of the appeal before the commissioner,
the respondent filed a Writ Petition before the High Court on 18.7.2005. On
8.5.2006, the High Court without going into the merits of the case, allowed the
49 Civil Appeal arising out of SLP
(C) No. 16711 of 2006 HSIDC v. Gopal Chand Kapoor Respondent applied for and
was allotted an industrial plot vide its Regular Letter of Allotment dated
26.6.2000 at IMT, Manesar. An Agreement containing the terms and conditions of
the allotment was executed between the two parties on 12.9.2000. Physical
possession of the plot was taken over on 28.2.2003.
Civil Appeal arising out of SLP
(C) No. 17426 of 2006 HSIDC v. Prateek Industries Respondent applied for and
was allotted an industrial plot vide its Regular Letter of Allotment dated
22.10.1998 at Growth Centre Investate Bawal, District Rewari. Physical
possession of the plot was offered on 21.5.02. However, the respondent failed
to take over the possession. On 21.4.04, the appellant issued a show-cause
notice to the respondent directing him to start commence construction within a
period of two years and to implement the project on or before 21.5.05. The
respondent intimated the appellant that the construction would start
immediately and requested for a three year extension period. On 17.1.2005, the
appellant issued a show-cause notice to the respondent for delay in taking the
physical possession of the plot and for non-commencement of 50 construction.
Vide its letter dated 31.1.05 the respondent informed the appellant that due to
loss in its business, they were unable to continue industrial activity and had
decided to surrender the plot. It thus requested for a refund. On 25.2.06, the
respondent requested for a personal hearing.
After hearing the respondent in
person, the appellant passed an order of resumption. Aggrieved by the said
order, the respondent filed a Writ Petition before the High Court. By its order
dated 25.8.06, the High Court set aside the Resumption order.
Civil Appeal arising out of SLP
(C) No. 18011 of 2006 HSIDC v. G.M. Precision Respondent applied for and was
allotted an industrial plot vide its Regular Letter of Allotment (RLA) dated
13.3.02 at IMT, Manesar. On 12.4.02, a final Agreement was entered into between
the parties incorporating the terms and conditions of the allotment letter. On
18.11.2003, the respondent took physical possession of the plot. On 2.11.04, a
show-cause notice was issued to the respondent on account of its failure to
commence construction and default in making the payment of the 4th and 5th
installments. Due to unsatisfactory reply of the respondent by his letter dated
14.12.04, the appellant resumed the plot by its order dated 18.2.05. Aggrieved
by the said order, the respondent on 51 11.11.1999 filed an appeal before the
Financial Commissioner Industries.
The said appeal was dismissed by
the commissioner on the basis that it was devoid of any merit. Feeling
aggrieved by the order of resumption and the order dismissing the appeal, the
respondent filed a Writ Petition before the High Court. By an order dated
7.8.06, the High Court set aside the order of resumption.
Civil Appeal arising out of SLP
(C) No. 2331 of 2007 HSIDC v. Matesh Kumar Katyal Respondent applied for and
was allotted an industrial plot vide its Regular Letter of Allotment (RLA)
dated 9.4.01 at Kundli Industrial Estate. On 11.04.01, a final agreement was
entered into between the parties incorporating the terms and conditions of the
Vide its letter dated 3.5.01 the
appellant offered the respondent the physical possession of the plot. On
24.12.03, the appellant issued a show-cause notice to the respondent for
failure to commence construction as well as commercial production within the
Respondent on grounds of illness
of his mother and other financial constraints requested for an extension to
commence construction. Vide its letter dated 18.1.05 the appellant passed an
order of resumption of the plot against the respondent and refunded his cheque
after making the 52 necessary deductions. Aggrieved by the said order, the
respondent on 14.1.05 filed an appeal before the Financial Commissioner
Vide its letter dated 28.8.06, the
appellant informed the respondent that the commissioner had dismissed his
appeal by an order dated 1.8.06 on the ground that it was devoid of any merit.
Being aggrieved by the order of resumption and the order dismissing the appeal,
the respondent filed a Writ Petition before the High Court. On 5.12.06, the
High Court set aside the order of resumption.
Civil Appeal arising out of SLP
(C) No. 2702 of 2007 HSIDC v. At Home India P. Ltd.
Respondent applied for and was
allotted an industrial plot vide its Regular Letter of Allotment (RLA) dated
24.5.04 at IMT, Manesar.
Allegedly, the petitioner
requested the appellant vide its letters dated 15.6.04 and 05.7.04 to change
the site of the plot on the ground that the area where it was so situated was
not developed. Allegedly, on 19.8.04, the respondent met the appellant for the
change of plot who were then informed that the plot could not be changed. On
22.7.04, the RLA lapsed.
On 23.8.04, the respondent
remitted 15% of the cost of the plot. Vide its letter dated 12.1.05, the
appellant cancelled the allotment and refunded the amount paid by the
respondent on the ground that he had failed to 53 comply with clause 3 of the
Allotment letter providing for the payment and thus the RLA had lapsed
automatically. On 19.1.05, the respondent requested the appellant to reconsider
his case. Vide its letter dated 21.3.05 the appellant informed the respondent
that his request had been rejected and refunded the amount so paid. Aggrieved
by the said order, the respondent preferred an appeal before the Commissioner
of Industries which by its order dated 13.1.06, dismissed the appeal. Aggrieved
by the order of the commissioner, on 4.9.06, the respondent filed a Writ
Petition before the High Court. The High Court by its order dated 5.12.06 while
allowing the Writ Petition, quashed the letter dated 12.1.05 and the appellate
order on the premise that the respondent had always showed his eagerness to
initiate construction and the delay in making the payment had been on account
of a genuine belief by the respondent that the request for an alternative plot
was pending before the appellant.
Civil Appeal arising out of SLP
(C) No. 2343 of 2007 HSIDC v. RMDK Projects Respondent applied for and was
allotted an industrial plot vide its Regular Letter of Allotment (RLA) dated
23.1.01 at IMT, Manesar.
Thereafter, a formal Agreement was
entered into between the parties incorporating the terms and conditions of the
RLA. Allegedly, the 54 respondent made various requests to the appellant for
delivering the physical possession of the plot after making necessary
developments. On 19.12.01, the appellant issued a letter thereby offering the
respondent physical possession of the plot. On the other hand, on 24.2.03, the
appellant issued a notice to the respondent to show-cause why the plot should
not be resumed on account of its failure to comply with the terms and conditions
of the allotment letter. Subsequently, two more show- cause notices dated
13.10.03 and 8.12.03 were issued. Allegedly, an authorization letter dated
10.2.04 was issued to the respondent for taking over the physical possession.
Allegedly, the respondent by its letter dated 4.2.04 requested the appellant to
hand over the possession of the plot.
Thereafter by its letter dated
15.2.05, the respondent gave an undertaking to the appellant to commence
construction immediately, if it delivered the possession of the plot. On
7.2.05, the appellant issued a notice to the respondent to show-cause as to why
the plot should not be resumed in light of the default made. On being
unsatisfied by the reply of the respondent vide its letter dated 15.2.05 to the
show-cause notice, the appellant passed an order of resumption of the plot on
7.7.05. Being aggrieved by the said order, the respondent on 5.08.05 preferred
an appeal before the Commissioner of Industries. Vide its letter dated 19.4.06,
the appellant informed the respondent that the commissioner had 55 dismissed
his appeal by an order dated 13.1.06 on the ground that it was devoid of any
merit. Being aggrieved by the order of resumption and the order dismissing the
appeal, on 25.6.06, the respondent filed a Writ Petition before the High Court.
The High Court, by its judgment and final order dated 27.11.06, set aside the
order of resumption.
Civil Appeal arising out of SLP
(C) No. 2891 of 2007 HSIDC v. Trikuta Respondent applied for and was allotted
an industrial plot vide its Regular Letter of Allotment (RLA) dated 30.6.99 at
Industrial Estate, EPIP, Kundli. On 18.1.00, on a request made by the
respondent, the allotment of the said plot was changed due to a change in the
constitution of the respondent's company. Subsequently, on 20.1.00, a
supplementary agreement was entered into between the parties. As per the terms
of the new Agreement, the respondent was to commence construction within a
period of six months. Appellant issued two show-cause notices to the respondent
dated 14.8.00 and 26.2.01 for its failure to commence construction. Vide its
letter dated 7.11.01, the respondent sought extension of time to start
construction and commercial production.
Upon the new Industrial
Infrastructure Development Policy coming into force, the appellant extended the
time for implementation of 56 the project to three years i.e. up to 29.6.02.
Allegedly, the respondent made several requests by its various letters dated
26.2.03, 07.5.03, 18.5.03, 20.6.03 and 29.8.03 for extension of time which was
purportedly rejected or not considered by the appellant. On 22.1.03, a
show-cause notice was issued by the appellant to the respondent to explain why
a resumption order should not be passed for non-erection of the building within
the stipulated time. After being given a personal opportunity of hearing on
18.6.03, the appellant vide its letter dated 27.8.03 resumed the plot and
requested the respondent to collect the cheque of the amount deposited by him.
Allegedly, the order of resumption was passed against the respondent without a
personal hearing. Being aggrieved by the said order, the respondent on 28.9.03
preferred an appeal before the Commissioner of Industries. Vide its letter
dated 28.8.06, the appellant informed the respondent that the commissioner had
dismissed his appeal by an order dated 1.8.06 on the ground that it was devoid
of any merit.
Being aggrieved by the order of
resumption and the order dismissing the appeal, on 9.10.06, the respondent
filed a Writ Petition before the High Court. The High Court, by its judgment
and final order dated 12.12.06, set aside the order of resumption.
57 In all these cases, it is
difficult to uphold the order of the High Court. But a general offer was made
by the learned Additional Solicitor General that those who intend to obtain
reallotment of plot may do so on payment of the price as per the current rate
as on the date of the order of the High Court.
Before us, several allottees had
categorically made a statement that they are ready and willing to pay the
prevailing price as fixed by the appellant- Corporation. Keeping in view the
facts and circumstances of this cases, we are of the opinion that in the event,
respondents offer the prevailing price as on the date of judgment of the High
Court, the plot, in question, shall stand re-allotted and should be subject to
the same terms and conditions. Such reallotment may be made even in cases where
we have found the order of the High Court to be unsustainable.
Respondents shall deposit the
amount within six weeks from date.
Appellant shall hand over the
possession of the plot, in question, within four weeks thereafter. The highest
executive of Appellant - Corporation shall see to it that the order of this
Court is complied with. It is, however, made clear that in the event of failure
on the part of the respondents concerned in making payment in terms of this
order, it 58 would be open to the appellant to take recourse to such action as
is permissible in law.
Subject, of course, to the
directions issued in individual cases, the appeals are disposed of. In the
facts and circumstances of the case, there shall be no order as to costs.
[V.S. Sirpurkar] New Delhi;