JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri W.H. Khan, learned Senior Counsel assisted by Sri Ramanuj Pandey, learned counsel for the petitioner, Sri Swapnil Kumar, learned counsel for respondent nos.1 and 2 and Sri Rahul Agarwal, learned counsel for respondent no.4.

2. Present petition has been filed challenging the order dated 01.12.2005 passed by respondent no.2 by which allotment of industrial plot in favour of the petitioner was cancelled on the ground that petitioner has failed to deposit reservation money of Rs.74,160/-within the time stipulated as per the allotment letter dated 08.02.2005.

3. Contention of learned counsel for the petitioner is that before passing the impugned order, no opportunity of hearing was given to him by issuing any notice. In support of his contention, learned counsel for the petitioner has relied on the following judgements in the cases of M D, HSIDC Vs. Hari Om Enterprises reported in 2009 (16) SCC 208 and ITC Ltd. Vs. State of U.P. & Ors. reported in 2012 AIR SCW 2421.

4. On the other hand, learned counsel for respondent nos.1 and 2 submits that in the allotment order dated 08.02.2005, it was clearly mentioned that in case the allottee fails to deposit the reservation money within the stipulated time then his allotment will automatically cancelled and whole amount of money deposited by him stands forfeited. Therefore, there was no requirement to issue notice to petitioner to provide further opportunity.

5. Learned counsel for respondent no.4 submits that after the cancellation of allotment of the petitioner, the subsequent allottee executed agreement to sell in his favour with the permission of respondent no.2 and he also deposited the entire amount but during pendency of present petition allotment of subsequent allottee was cancelled. Therefore, petition deserves to be dismissed.

6. Considering the above submission as well as pleadings and from perusal of record, we find that no notice was given to the petitioner before passing impugned order. This fact was not disputed by respondent no.1.

7. Sole question arises for consideration is whether respondent no.2 should have issued notice to petitioner before cancellation of his allotment despite the condition in allotment letter dated 08.02.2005 that, in case of non deposit of reservation amount, his allotment will automatically cancelled.

8. Hon'ble Supreme Court in paragraph nos.33, 34 and 36 of M D, HSIDC Vs. Hari Om Enterprises (supra) are quoted hereinunder :

"33. 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.

34. Resumption of plot, it is trite, would not be automatic.

36. 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."

9. Relevant part of paragraph no.16 in ITC Ltd. Vs. State of U.P. & Ors. (supra) is quoted hereinunder :

"16............................ Even otherwise, when valuable rights had vested in the ap