M.M. Kumar, J.@mdashThe instant petition filed under Article 226 of the Constitution prays for quashing order dated 22.3.2006 (P-12) passed by the Haryana State Industrial Development Corporation Limited (HSIDC)-respondent No. 3, resuming Industrial Plot No. 30, Phase 3, G.C. Bawal. A further prayer for quashing order dated 13.2.2007 (P-13) has been made whereby the appeal preferred by the petitioner against the resumption order has been rejected. Still further it has been prayed that direction be issued to the respondents to restore the aforementioned industrial plot in favour of the petitioner and also to issue letter of intent for implementation of the industrial project.
2. Brief facts of the case are that in pursuance to the application dated 27.5.1999 (P-1) made by the petitioner, industrial Plot No. 30, Phase 3, G.C. Bawal, measuring 250 Sq. Mtrs. Was allotted vide Letter of Intent (LOI) dated 9.9.1999 (P-4). As per clause 4(i) of the Letter of Intent (LOI) dated 9.9.1999, Regular Letter of Allotment (RLA) was to be issued after fulfilling following formalities within a period of six months from the issue of LOI:
Obtain provisional registration certificate of the Unit from the concerned GM, DIC in case of SSI units and Industrial Entrepreneur Memorandum (IEM) from the SIA, Union Ministry of Industries in case of Medium and Large units.
Approval of the Building Plans.
Sanction of loan from the Bank/Financial Institution. If self-financed, proof of resources.
3. In clause 5 of the LOI, schedule of payment of balance 75% of the price of the plot was given, which was to be paid in three equated installment of Rs. 37,5000/-within a period of 9 months to be counted from the date of expiry of 30 days of the issue of LOI. The first, second and third installments were due on 9.1.2000, 9.4.2000 and 9.7.2000. Interest @ 18% was chargeable on the defaulted amount for the defaulted period for delay in payment from the due date. It has been further postulated that interest @ 18% would be charged on the balance amount from the date of offer of possession and a penal interest @ 3% over and above 18% would be levied and applied @ 21% on the defaulted amount for the defaulted period for delay in payment after the offer of possession. However, the allottee could pay the balance 75% amount in lumpsum without any interest within 60 days from the date of issue of LOI.
4. The petitioner had already deposited a sum of Rs. 15,000/- as 10% of the earnest money alongwith the application and further deposited another sum of Rs. 22,500/- towards 15% cost of the plot. The plot was allotted for setting up the project of Die Casted Accessories, Engineering Components of Auto Parts etc. On 8.10.1999, an agreement was also entered into between the petitioner and the HSIDC (P-5). On 5.3.2001 and 9.3.2001, the petitioner further deposited a sum of Rs. 49,000/- each, total of which comes to Rs. 98,000/-. In this manner, the petitioner has paid a total sum of Rs. 1,35,500/-. Thereafter the petitioner shifted to a new address as he got a job. It is claimed that the changed address of correspondence as well as e-mail address was intimated to the HSIDC.
5. On the ground that the petitioner failed to complete the formalities stipulated under clause 4 of the LOI and also defaulted in payments of installments towards cost of the plot, a show cause notice dated 28.3.2005 (P-7) was sent on the e-mail address of the petitioner. It was also mentioned that after adjusting the amount paid by the petitioner against principal and interest on delayed payment a sum of Rs. 23,593/- was found due as on 15.7.2002. In that regard a communication was also sent on 12.7.2002 asking him to deposit Rs. 23,593/- alongwith interest chargeable from time to time w.e.f. 16.7.2002 till date of payment. The petitioner was asked to show cause as to why the plot in question be not resumed.
6. On 1.7.2005, the petitioner sent a reply taking the stand that no communication sent through registered post was received by him after 2002 because of his change of address. He also assured to clear all the dues with interest immediately and to complete the formalities (P-8). On 1.9.2005 the petitioner sent a reminder (P-9) and on 20.12.2005 he deposited a sum of Rs. 32,000/- through a demand draft dated 17.12.2005 (P-10&P-11).
7. The reply furnished by the petitioner was not found satisfactory and the respondent HSIDC passed an order dated 22.3.2006 withdrawing LOI (P-12). Feeling aggrieved, the petitioner preferred an appeal before the Appellate Committee constituted under the Estate Management Procedure-2005, which was considered in its meeting held on 24.1.2007 and the same was rejected on the ground that the petitioner has failed to comply with the requirements of the LOI within the stipulated period of six months. The observation of the Appellate Committee in the impugned order, which was conveyed on 13.2.2007 reads thus:
The committee after considering the facts of the case and the submissions made by the party observed that the Corporation had issued LOI in respect of the plot in dispute on 09.09.1999 and he was required to complete certain formalities of LOI within a period of six months from the date of issuance of LOI. The petitioner admittedly has failed to comply with the said formalities within the available period. Accordingly, after going through the facts of the case and the terms & conditions of the LOI, the committee observed that the Corporation has rightly cancelled the LOI on account of violations of the terms & conditions and as such decided to dismiss the appeal, being devoid of any merit.
8. In the reply filed by the respondents it has been asserted that the impugned orders have been rightly passed because the petitioner has not completed the formalities of the LOI and also defaulted in payment of instalments. However, it has been admitted that the communications sent to the petitioner were received back undelivered and subsequently the petitioner was informed about the violation electronically through e-mail.
9. On 19.3.2008, when the matter came up for consideration before the Division Bench, learned Counsel for the petitioner has submitted that the total price of the plot was Rs. 1,50,000/- and the petitioner has made payments on 23.8.1999, 9.9.1999 and 9.3.2001. On the other hand, the respondents in counter affidavit claimed that no amount was deposited by the petitioner for a period of five years i.e. from 2001 to 2005. Considering the fact that the petitioner has deposited 75% amount of the price of the plot, the Division Bench directed the respondents to calculate the interest as well as penal interest chargeable from the petitioner on account of defaults committed by him by not making the payments on regular basis and to place the same on record. Accordingly, the respondents placed on record the complete details of the plot in question viz. total cost of plot, due date of instalments, amount received towards cost of plot, interest chargeable etc. till 30.6.2008 alongwith C.M. No. 12732 of 2008 vide Annexure R-3/1. As per the calculation made by the respondents, an amount of Rs. 43,969/- upto 30.6.2008 is still outstanding towards the petitioner.
10. Having heard learned Counsel for the parties at a considerable length we are of the view that this petition deserve to succeed. It has come on record that the petitioner has already deposited a substantial amount towards the cost and interest of the plot in question and according to the calculations made by the respondents (R-3/1) only a sum of Rs. 43,969/- upto 30.6.2008 was payable by the petitioner. The LOI in the present case was withdrawn by the HSIDC only because the petitioner failed to comply with the formalities as per clause 4 of the LOI and also failed to deposit the due amount within the stipulated time frame. On receipt of show cause notice dated 28.3.2005 through e-mail (P-7), the petitioner in his reply dated 1.7.2005 (P-8) showed his willingness to clear all the dues with interest and also given an assurance to complete the requisite formalities. On 1.9.2005, the petitioner again conveyed to the respondents that he want to start construction and production within next three months. However, the reply furnished by the petitioner did not find favour with the respondent Authorities. The appeal filed by the petitioner was also rejected by the Appellate Committee.
11. It has been repeatedly held by the Courts that the power of resumption/cancellation of plots, houses, commercial and industrial sites etc. should be exercised only as a last resort. A Full Bench of this Court in the case of
12. The petitioner has showed his willingness to complete the formalities incorporated in the LOI and also to start construction and production. Learned Counsel for the petitioner has also requested that the petitioner be granted one final opportunity and a reasonable time to complete the construction and implement the project. Learned Counsel has also stated that since the petitioner has already paid substantial amount and as per own calculations of the respondents only a sum of Rs. 43,969/- upto 30.6.2008 was outstanding, which the petitioner is ready to deposit within one month if the impugned orders are set aside. In that regard, learned Counsel has placed reliance on the Division Bench judgment of this Court in the case of Matesh Kumar Katyal v. State of Haryana and Ors. C.W.P. No. 14496 of 2006, decided on 5.12.2006. In that case also, the allottee though deposited the cost of the plot but failed to implement the project within a period of three years by raising construction within a period of one year of the offer of possession. Ultimately, the plot was resumed. The Division Bench after noticing the view taken in another identical case titled as Jaisi Designs New Delhi v. Managing Director and Ors. C.W.P. No. 4530 of 2005, decided on 4.7.2006 and the fact that SLP against the said judgment was dismissed by Hon''ble the Supreme Court, allowed C.W.P. No. 14496 of 2006 (supra). Learned Counsel for the respondents has not been able to controvert the aforementioned legal position or distinguish the aforementioned judgments.
13. As a sequel to the above discussion, this petition succeeds and the impugned orders dated 22.3.2006 (P-12) and 13.2.2007 (P-13) are hereby quashed. The petitioner is directed to deposit a sum of Rs. 43,969/- as per Annexure R-3/1 with the respondents within a period of one month from the date of receipt of a certified copy of this order. Further dues that may have accrued after 30.6.2008 shall be calculated by the respondents and conveyed to the petitioner, which shall be deposited by him within 15 days thereafter. The petitioner is also directed to implement the industrial project within six months with effect from 1.12.2008. Industrial Plot No. 30, situated in Phase 3, G.C. Bawal, stands restored to the petitioner. It is, however, made clear that in case the petitioner failed to make the payment and implement the industrial project as per the above direction, then the petition shall be deemed to have been dismissed and the impugned orders shall prevail.
The writ petition stands disposed of in the above terms.
