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TMI Blog2008 (5) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrepreneurs for setting up their industries on "no profit no loss" 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 price. 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 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 10.01.2001. We may notice the relevant clauses thereof. 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 allott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The allottee will not be entitled to any payment/compensation for building constructed by it on the resumed plot. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rs. 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: "...The plot in question stands restored back to the petitioner. The amount refunded by the Corporation to the petitioner shall be repaid to the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. (ii) 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. (iii) The action 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 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'. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enabling clause of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Stores and Others Vs. Indian Oil Corporation and Others [(1990) 3 SCC 752, para 12] Moreover, the act on the part of the respondent must be a reasonable one. [See Bharat Petroleum Corporation Ltd. Vs. Maddula Ratnavalli 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght in contending that every action/activity of the Bombay Port Trust which constituted "State" 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: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matter. 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 counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 21." 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 averred: "...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 residenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atements made at the Bar, as and when any residential plot becomes 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 hereinbefore. 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 interest at 11% per annum after 22.7.2004, but he failed to do so. Appellant took a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong. (v) All dues 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 obtained. 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 with. 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, dismissed. Civil Appeal arising out of SLP(C) No. 20235 of 2006 H.S.I.D.C. & Ors. Vs. Mr. Anand Minda & Anr. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 granted. 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 on 7.7.05. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Writ Petition. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allotment letter. 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 stipulated time. 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 necessary deductions. Aggrieved by the said order, the respondent on 14.1.05 filed an appeal before the Financial Commissioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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