Dalip Singh vs State Of Haryana

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10718 OF 2018 (Arising out of SLP(C) No.36225 of 2014)

DALIP SINGH AND OTHERS ….Appellants

VERSUS

STATE OF HARYANA AND OTHERS ….Respondents

JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the order dated 16.09.2014 passed

by the High Court of Punjab and Haryana at Chandigarh in CWP

No.19256 of 2014 in and by which the High Court dismissed the

Writ Petition filed by the appellants thereby upholding the orders of

the Authorities resuming the Industrial Plot No.306, Industrial Area,

Phase-II, Panchkula allotted to M/s. Shiva Dairy & Oil Mills. Signature Not Verified Digitally signed by MADHU BALA Date: 2018.10.25

3. Brief facts of the case which led to filing of this appeal are that 16:25:29 IST Reason:

Industrial Plot No.306, Industrial Area, Phase-II, Panchkula was

1 allotted to Rabinder Nath, in his capacity as MD of M/s Shiva Dairy

& Oil Mills vide Memo No.21015 dated 25.07.1984 and the

possession of the said plot was given on 19.09.1984. Letter of

allotment was subject to the provisions of Haryana Urban

Development Authority (HUDA) Act, 1977 and the Rules and

Regulations applicable thereunder as amended from time to time

and also the Industrial Policy of the State of Haryana. The terms

and conditions of the allotment letter, specifically Condition No.18,

required the allottee to complete the construction over the allotted

plot within two years of the date of offer of possession after

completing the necessary formalities governing the construction of

the building; otherwise the plot was liable to be resumed and the

whole or any part of the money in respect of the same is liable to be

forfeited in accordance with the provisions of the HUDA Act, 1977.

4. Since the allottee Rabinder Nath (NRI) did not comply with the

terms and conditions of the allotment and did not commence the

production within the stipulated time, Show Cause Notice dated

26.08.2003 was issued to the allottee under Section 17(4) of the

HUDA Act, 1977. One Rakesh Sarna claiming to be the Power of

Attorney sent the reply dated 14.11.2003 saying that the original

documents are missing and requested for issuance of duplicate

copies. In the said reply, the said Rakesh Sarna (GPA) stated that

2 they would “construct the building within six months from the date of

receipt of the missing documents.” Not being satisfied with the reply

received, the allottee was offered an opportunity of personal hearing

vide Memo dated 06.01.2004. The said Rakesh Sarna (GPA)

appeared and gave a written reply. On perusal of the reply dated

14.11.2003 and report submitted by the Junior Engineer of HUDA,

the Estate Officer, HUDA held that the allottee failed to commence

the production in spite of grant of sufficient opportunities and vide

order dated 25.02.2004 resumed the plot forfeiting 10 per cent of

the consideration money.

5. Being aggrieved by the order of resumption of plot, Satyawati

wife of Rabinder Nath through her GPA Rakesh Sarna filed appeal

under Section 17(5) of the HUDA Act, 1977 before the appellate

authority-Administrator, HUDA. During the pendency of said

appeal, the application was moved on 07.03.2006 to the effect that

the appellant Satyawati had expired on 03.10.2005 leaving behind a

will dated 02.09.2005 in favour of her four children namely the

appellants. The said application was allowed and the appellants

were impleaded as parties. The appeal was dismissed by

respondent No.3-Administrator, HUDA vide order dated 11.01.2008

on the ground that the appellants did not start the construction as

well as the production over the plot in question and the appellants

3 have not been able to give even a single reason for not starting

construction as well as production for a long time of twenty years. It

was held that the reasons stated by the power of attorney that the

original papers were lost somewhere in September, 2003 does not

carry any weight for explaining the delay of twenty years.

6. The order of the Appellate authority dated 11.01.2008 was

assailed by the appellants before Principal Secretary, Government

of Haryana, Department of Town and Country Planning and Urban

Estates (the Revisional authority) under Section 30(2) of HUDA Act,

1977 and the same was dismissed by order dated 15.04.2014 inter

alia on the following grounds:-

 That the allotment of industrial plot was made at concessional

rates with a view to generate employment for the unemployed and

keeping in view the economic development of the State and the

allottee has defeated the very purpose of allotment of such

industrial plot by not commencing the production for twenty years

from the date of allotment and delivery of possession;

 That the revision preferred by the appellants is barred by limitation

having been filed after a delay of one year and three months and

that too without any application for condonation of delay; and

 That the plot was allotted to M/s Shiva Dairy & Oil Mills and the

appellants could not show how they stepped into the shoes of the

4 firm and it was an act of the appellants to appropriate the plot to

the exclusion of the legal heirs of the partners of the firm.

7. Being aggrieved by the dismissal of the revision, the

appellants filed Writ Petition (C) No.19256 of 2014 before the High

Court which came to be dismissed by the impugned order dated

16.09.2014. The High Court noted that as rightly observed by the

Revisional authority, the plot was allotted at a concessional price

with the object of commencing production or industrial activities

within a reasonable time which would generate employment for the

unemployed youth and also generate revenue in the form of leviable

taxes for the public exchequer besides adding to the economic

development of the nation. The High Court held that the failure of

the allottee to start production for such a long time after the

allotment defeated the very purpose of allotment of the plot.

8. We have heard Mr. Nidhesh Gupta, learned senior counsel

appearing on behalf of the appellants and Mr. Gautam Sharma,

learned counsel appearing on behalf of the respondents and

perused the impugned order and materials placed on record.

9. Even at the outset, it is to be noted that the appellants-legal

heirs of the allottee Rabinder Nath, MD of M/s Shiva Dairy & Oil

Mills were unsuccessful before the Estate Officer, Appellate

authority and the Revisional authority and also before the High

5 Court. All the authorities as well as the High Court recorded

concurrent findings that the allottee has not commenced production

for twenty long years from the date of allotment and handing over of

possession till passing of the order of resumption in 2004 and also

building was not constructed and there was breach of terms and

conditions of the allotment and such non-commencement of

production defeated the very purpose of allotment of such industrial

plots. The question falling for consideration is whether such

concurrent findings recorded by the Authorities and also by the High

Court suffer from any serious infirmity warranting interference by

this Court.

10. With a view to ensure rapid industrial growth on sustainable

basis to achieve the twin objects of economic development and

generation of adequate employment, the industrial estates/areas

were established in order to achieve the said purpose, the industrial

policy was framed by the State of Haryana aiming at balancing

regional development. After completion of various formalities,

Industrial Plot No.306, Industrial Area, Phase-II, Panchkula was

allotted vide letter dated 25.07.1984 and possession thereof was

delivered on 19.09.1984. The undertaking of the production as per

the approved project is the foundation for the allotment of industrial

plots. These plots are allotted at a very reasonable

6 rate/concessional rate with a view to provide incentives to the

allottees/entrepreneurs with intent to encourage industrialization

and growth in employment opportunities. These allotments are not

only governed by the provisions of the HUDA Act, 1977 and the

Rules and Regulations framed thereunder but also by the provisions

of the industrial policy of the State of Haryana. The allotment of the

industrial plot in question to Rabinder Nath as MD of M/s Shiva

Dairy & Oil Mills was subject to the terms and conditions of the

allotment. As per clause (18) of the allotment, the allottee has to

complete the construction within two years from the date of offer of

possession. Clause (11) stipulates that in the event of breach of

any other condition of transfer, the Estate Officer may resume the

land in accordance with the provisions of Section 17 of the HUDA

Act, 1977. Clauses 18 and 11 read as under:-

“18. You will have to complete the construction within two years of the date of offer of possession, after petting the plans of the proposed building approved from the competent authority in accordance with the regulations governing the erection of buildings. This time limit is extendable by the Estate Officer if he is satisfied the non-construction of the building was due to reasons beyond your control, otherwise this plot is liable to be resumed and the whole or part of the money paid if any, in respect of it forfeited in accordance with the provisions of the said Act. You shall not erect any building or make any alteration/addition without prior permission of the Estate Officer, no fragmentation of any land or building shall be permitted.

11. In the event of breach of any other condition of transfer the Estate Officer may resume the land in accordance with the provisions of Section 17 of the Act.”

7 The appellants have admittedly not commenced the industrial

production on the plot for twenty long years after allotment and

delivery of possession. The appellants seem to have woken upon

only after issuance of the Show Cause Notice. Evidently, there is

breach of condition of allotment of the plot.

11. Contention of the appellants is that Rabinder Nath (NRI), MD

of M/s Shiva Dairy & Oil Mills who was allotted the plot, was

detected with cancer and died of cancer in 1987. Satyawati Devi

w/o Rabinder Nath who became the sole proprietor of M/s Shiva

Dairy & Oil Mills also remained disabled and she was also detected

with cancer in 2004 and she was getting disability allowance from

1992 to 2003 as per the documents on record. It is therefore, the

submission of the appellants that legal representatives could not do

anything or take any constructive action from 1985 till 2003 despite

the fact that they have constructed a building without a completion

certificate. It is the contention of the appellants that the default was

not wilful and extreme step of resumption of land ought not to have

been resorted by HUDA.

12. As pointed out earlier, in reply to the Show Cause Notice, one

Rakesh Sarna claiming himself as General Power of Attorney filed

the reply dated 14.11.2003. In the said reply, Rakesh Sarna (GPA)

has not stated anything about the illness or the disability of

8 Satyawati. In the said reply, Rakesh Sarna (GPA) only took excuse

for non-construction of the building and non-production stating that

original documents like (i) Allotment Letter; (ii) Possession Letter;

(iii) No Due Certificate; (iv) Deed of Conveyance; (v) Occupation

Certificate; and (vi) Building Plans were missing and he has asked

for issuance of duplicate copies of relevant documents. The said

Rakesh Sarna (GPA) further stated that they would construct the

building within six months from the date of receipt of missing

documents.

13. As pointed out earlier, the allotment of industrial plot was with

the twin objects of economic development and generation of

adequate employment. In order to achieve the said purpose, the

industrial policy was framed by the State of Haryana aiming at

balanced regional development and with a view to generate

adequate employment. The allotment of industrial plot was at

concessional rate and was subject to terms and conditions and the

allottee was bound to comply with the terms and conditions. In such

kind of allotment of industrial plots, based on government industrial

policy with twin objectives of economic development and generation

of adequate employment, sympathy cannot be the ground for

considering the case of the appellants as to their non-compliance of

9 the terms and conditions of allotment especially for twenty long

years after the allotment.

14. The learned senior counsel for the appellants contended that

the opportunity of personal hearing rendered was a mere formality

and no opportunity was given to the appellants for commencement

of production. Contention of the appellants is that though the show

cause Notice dated 26.08.2003 and the Resumption order dated

25.02.2004 were passed on the ground of non-commencement of

production; the appellate and revisional authority as well as the

impugned order passed by the High Court upheld the resumption of

the plot on altogether distinct premise of non-construction of the

building. Learned senior counsel had drawn our attention to the

Resumption order dated 25.02.2004 passed by the Estate Officer

wherein it is stated that the “plot and building constructed

thereon…..” are resumed in exercise of powers vested under

Section 17(4) of the HUDA Act, 1977. The learned senior counsel

submitted that buildings were actually constructed by the allottee

and the inconsistency between show cause notice and the order of

Revisional authority was not kept in view by the High Court.

15. As discussed earlier, the industrial plots were allotted at a very

reasonable rates/concessional rates with a view to provide

incentives to the allottees/entrepreneurs with intent to ensure

10 industrial growth and economic development of the State and

generation of adequate employment opportunities. These

allotments are not only governed by the provisions of HUDA Act,

1977 Rules and Regulations framed thereunder but also by the

provisions of the industrial policy of the State. Construction of

building and commencement of production are the integral part of

the terms and conditions of the order of allotment. The appellate

and Revisional authority as well as the High Court cannot be faulted

for the observation that the buildings were not constructed for

twenty long years after allotment. If the construction of the building

was really complete, the appellants could have very well filed the

completion certificate; but that was not to be so. It is pertinent to

note that in the reply dated 14.11.2003 of the said Rakesh Sarna

(GPA) of Satyawati, it is stated that “we will construct the building

within six months from the receipt of missing documents”. We fail to

understand that why the said Rakesh Sarna (GPA) should

undertake to construct the building within six months from the date

of receipt of missing documents. In this regard, we may usefully

refer to the order of the Revisional authority which has referred to

the comments of the Estate Officer received vide Memo No.19584

dated 23.12.2013 where it was stated as under:-

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“….it is clear that there was no construction till the passing of resumption order and whatever construction was raised, was raised illegally after expiry of stipulated period. Therefore, on this ground also, the Revision Petition deserves dismissal…..”

16. Contending that the extreme step of resumption of plot is

erroneous, the learned senior counsel for the appellants placed

reliance upon Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and

others, (2004) 2 SCC 130 wherein it was inter alia held that one of

the questions which the Estate Officer must always pose is as to

whether the drastic power of resumption and forfeiture has been

taken recourse to as a last resort. It was submitted that the present

case is not the one where the extreme step of resumption of plot

ought to have been resorted to. The facts of the said case are

distinguished from the case in hand. In Teri Oat Estates case, the

appellants thereon were merely to pay the balance amount of 75

per cent of the consideration amount in instalments. The appellants,

pursuant to the order of the Supreme Court, not only paid the entire

amount but also paid ground rent and further paid 10 per cent

penalty on the forfeited amount. Teri Oat Estates case, thus

related to the default in payment of instalments of premium and

interest thereon and ground rent in terms of allotment; but default

was found to be not wilful and dishonest. In such facts and

circumstances of the said case, this Court held that the authorities

12 were not justified in resorting to the extreme step of resumption of

the land. In the case in hand, per contra, the allottee has failed to

complete construction within the stipulated time as per condition

No.18 and commence production for a period of almost twenty

years despite there being a clear stipulation in the allotment letter

requiring them to complete construction within a period of two years.

They have also failed to explain sufficient cause for this inordinate

delay occasioned by them. As rightly held by the authorities, the

allottee has defeated the very purpose of allotment of such

industrial plot.

17. Learned senior counsel for the appellants has also drawn our

attention to the judgment of High Court of Punjab and Haryana at

Chandigarh passed in CWP No.15672 of 2008 Anup Chauhan v.

The Financial Commissioner & Secretary and others wherein

the High Court directed the Respondent Authority to consider the

claim of the petitioner. However, the facts of the case in hand have

to be distinguished from those of the Anup Chauhan case. In the

writ petition, the petitioners had applied for an extension till 2006 to

complete the project and had also paid the extension fee for the

same and the Estate Officer had passed an order on 30.11.2004

13 resuming the plot and in such facts, the High Court set aside the

order of resumption of plot.

18. Similarly, in another case relied upon by the appellants, i.e.

Haryana Urban Development Authority, Faridabad & Another v.

Mrs. Manu Gupta and another in RSA No.908 of 2012, the appeal

filed by HUDA was dismissed with a direction that HUDA cannot be

allowed to take advantage of their own wrong and burden the

respondent with further payment, despite their making the payment

under the order of the court, which the appellant HUDA deliberately

avoided to accept. But in the case in hand, it is the appellants who

have defaulted in fulfilling the terms and conditions of the allotment

letter for a long time of about twenty years.

19. All the judgments relied upon by the appellants are

distinguishable on facts. Even assuming that for some other

allottees, order of resumption of plot had been quashed/cancelled,

the appellants cannot claim equality of treatment. Article 14 is a

positive concept and cannot be enforced by a citizen in a negative

manner. In State of Orissa and another v. Mamata Mohanty

(2011) 3 SCC 436, it was held as under:-

“56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does

14 not confer any legal right on the petitioner to get the same relief.

(Vide Chandigarh Admn. v. Jagjit Singh (1995) 1 SCC 745, Yogesh Kumar v. Govt. of NCT of Delhi (2003) 3 SCC 548, Anand Buttons Ltd. v. State of Haryana (2005) 9 SCC 164, K.K. Bhalla v. State of M.P. (2006) 3 SCC 581, Krishan Bhatt v. State of J&K (2008) 9 SCC 24, Upendra Narayan Singh (2009) 5 SCC 65 and Union of India v. Kartick Chandra Mondal (2010) 2 SCC 422)”

20. This Court issued notice (vide order dated 07.01.2015) on the

basis of submissions made on behalf of the appellants that they are

agreeable to pay the present market value of the plot in question.

The learned senior counsel Mr. Nidhesh Gupta appearing for the

appellants submitted that the appellants are ready to pay the

present market value of the plot in question. Refuting the said

submission, the learned counsel for HUDA has submitted that at

present, there is no HUDA policy to allot the resumed industrial plot

on the current market price. It was submitted that allotment of

industrial plots at present is governed by Estate Management

Procedure (EMP), 2011 and the subsequent EMP, 2015 as per

which, industrial plot is to be allotted or disposed of only as per

Regulation/policy. It was submitted that industrial plots are disposed

of as per EMP and in this regard, the learned counsel has drawn

our attention to the counter filed as to the EMP governing the

allotment of the industrial plots including the invitation of

applications through advertisements. When allotment of industrial

plots is thus governed by EMP, the prayer of the appellants that they 15 are ready to pay the current market rate for the industrial plot cannot

be considered.

21. The allotment of Industrial Plot No.306, Industrial Area,

Phase-II, Panchkula in 1984 to Rabinder Nath was in his capacity

as Managing Director of M/s Shiva Dairy & Oil Mills. The plot was

thus allotted to the partnership firm. The appellants have not been

able to show as to how they stepped into the shoes of the

partnership firm, apart from the mere fact that they are legal heirs of

Rabinder Nath. As discussed earlier, at the time of making

application for allotment of industrial plot, the applicant has to

clearly disclose all the facts regarding the type of industry to be

started, licence if necessary under law, project report, estimated

cost of project, details regarding time required in completing the

project, details of employees required, source of fund etc. The

project so submitted is then approved by the competent authority

after considering its viability. The applicants are then issued letter of

intent/provisional allotment letter with condition to complete the

other formalities within the stipulated period of time and after

completion of formalities, regular allotment letter is issued in favour

of the applicant. As pointed out earlier, the undertaking of the

production as per the approved project is the foundation for the

16 allotment of the industrial plots which is with twin object of economic

development and generation of employment opportunities. Over the

years, the State has undergone substantive changes and economic

growth. Land/industrial plots now becoming very scarce, governed

by the present EMP, the appellants cannot seek for revocation of

resumption by contending that they are ready to pay the current

market rate.

22. The court can interfere with the revocation of resumption of

land only if the executive has not carried out its duty or acted in

violation of the procedure. Clause (11) of the terms and conditions

of allotment clearly stipulates that in the event of breach of any of

the conditions of transfer, the Estate Officer may resume the land in

accordance with the provisions of Section 17 of the HUDA Act,

1977. The order of resumption of the plot is as per the terms and

conditions of the allotment order and the High Court rightly refused

to interfere with the order of the Revisional authority. The appellants

having failed before all the forums including the High Court and also

the Revisional authority, we do not find any serious infirmity or

illegality in the order of resumption of the plot and therefore, this

appeal is liable to be dismissed.

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23. In the result, the appeal is dismissed. No costs.

…………….……………J. [R. BANUMATHI]

…………….……………J. [INDIRA BANERJEE]

New Delhi;

October 25, 2018

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