When an allotment condition requires construction to commence within a specified period from the date of allotment, but the grantor delays handing over possession, the limitation period for performance is construed to commence from the date of physical possession to ensure contractual feasibility.

ORDER

Challenge was made against the impugned order of cancellation of allotment made by the respondent dated 18.06.2008.

2. The learned counsel appearing for the petitioner would submit that initially the Plot No.3/D-3 (New) measuring acres 4.78 cents was allotted to the petitioner on 22.01.2004. In terms of the conditions of Condition 3(vii) of the allotment order, the petitioner supposed to have commenced construction of the factory building within six months from the date of allotment order and as per condition 3(ix), within 30 months from the date of the allotment order the petitioner shall commence commercial production / trial production. Since the petitioner has not commenced the construction of the factory building within six months from the date of allotment order, by virtue of the impugned order dated 18.06.2008, the allotment made to the petitioner dated 22.01.2004 was cancelled by the respondent.

3. The learned counsel for the petitioner would submit that though the condition No.3(vii) states that within six months time, the petitioner supposed to have commenced production from the date of allotment, unless otherwise the possession was handed over to the petitioner, the petitioner will not be able to commence production. In the present case, according to the petitioner, the land was handed over to the petitioner on 02.01.2006 therefore, the learned counsel would submit that all practical purposes, the condition No.3(vii) in the allotment order for the purpose of commencement of construction of the factory building has to be taken from the date of handing over of the plot i.e., on 02.01.2006. If that be so, the petitioner is entitled to commence production on or before 02.06.2006. The learned counsel for the petitioner would further submit that immediately after the respondent handed over the possession on 02.01.2006, the petitioner made application for building approval before the appropriate authorities on 13.06.2006, for the purpose of commencing the construction of the factory building, in the meantime, show cause notice was issued.

4. The learned counsel for the petitioner would submit that effective steps have been taken for the purpose of commencement of construction of factory building by submitting application for building approval, immediately upon receipt of the handing over of the possession of the property, which is almost after two years of the allotment of the subject property to the petitioner. The learned counsel would submit that the possession was handed over to the petitioner on 02.01.2006, while the allotment was made on 22.01.2004. The learned counsel would further submit that when the date of allotment is taking into consideration, in such case, the respondent ought not to have handed over possession on 02.01.2006 because the date mentioned in the Condition 3(vii) already been expired on the date of handing over of possession. Since because the possession was not handed over and the same was handed over on

02.01.2006, the respondent had not taken any steps for construction of factory building and cancellation of the allotment for non-compliance of the conditions of Clause 3(vii) of the allotment order is not sustainable. Therefore, for all the practical purposes, the learned counsel would submit that the limitation period would start for the purpose of compliance of clause 3(vii), from the date of handing over the possession to the petitioner. Accordingly, the present writ petition is filed.

5. The learned Standing Counsel appearing for the respondent would submit that in the present case, the petitioner