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Gujarat Industrial Development Corporation (Gidc) Ltd. v/s Dhruv EPC Solutions Pvt. Ltd.

    Letters Patent Appeal No. 973 of 2016, Special Civil Application No. 12391 of 2013, Civil Application (For Stay) No. 1 of 2016 & Civil Application (For Vacating Stay) No. 1 of 2017

    Decided On, 28 January 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE VINEET KOTHARI & THE HONOURABLE MS. JUSTICE GITA GOPI

    For the Appearing Parties: R.R. Marshal, R.D. Dave, R.V. Deshmukh, Advocates.



Judgment Text

Gita Gopi, J.

1. The appellant, Gujarat Industrial Development Corporation (for short 'Corporation'), has approached this Court under Clause 15 of the Letters Patent, challenging the order dated 12-16/08/2016 passed by the learned single Judge in Special Civil Application No.12391 of 2013, by which the learned single Judge directed the appellant Corporation to refund Rs.1,75,37,460/- with 6% interest p.a. from 30.10.2012, i.e. the date when the Corporation for the first time offered refund, till its payment, within a period of six weeks from the date of receipt of the order, and in failure to comply the order within the said period, the present respondent was held to be entitled to receive interest @ 8% from the aforesaid period till the amount was realized.

2. The appellant Corporation has challenged the impugned order on the grounds inter alia contending that the learned Single Judge has failed to appreciate the facts of the case in its proper perspective and has committed an error in holding that owing to the mistake on the part of the appellant Corporation in not sending the offer-cum-allotment letter in the name of the new Company, the present respondent was unable to obtain financial assistance from banks in connection with its project. The appellant Corporation contends that the transaction is purely contractual in nature and involves disputed question of facts and that the learned Single Judge ought to have considered that the appellant Corporation could not deviate from its policy, as already established in the case of Andhra Pradesh Industrial Infrastructural Corporation Limited And Another Vs. Shivani Engineering Industries.

2.2. The appellant Corporation has also raised an issue in the present appeal against the order of refund contending that the learned single Judge has travelled beyond the reliefs claimed in the writ petition. It is stated that the order of refund was already prepared in the year 2014 and it was because of the request of the respondent for revival of offer, the said refund order was never sent by the appellant Corporation. Thus, it contends that during the pendency of revival application, the grievance raised for non-refund was not justifiable, which ought not to have been granted by the learned Single Judge along with the interest.

3. Mr. R.R. Marshal, learned senior counsel appearing for the appellant Corporation submitted that the decisions by the appellant Corporation are taken within the parameters of the policies, the officer concerned cannot make any deviation prejudicial to the interest of the appellant Corporation. Mr. Marshal, learned senior counsel referred to the Memorandum of Understanding dated 12.01.2011 entered at Gandhinagar during the Vibrant Gujarat Summit-2011 between "Dhruv Pipeline Products Private Limited" and the appellant Corporation, the Offer-cum- allotment orders dated 31.03.2011 and 11.01.2012 in respect of Plot No.D-2/E/212 and Plot No.D-II/E/338 respectively sent to M/s. Dhurv Pipeline Products Pvt. Ltd. to emphasize that the parties are under contractual obligation to the project proposed. Reliance was placed on the Circular dated 02.05.2012 to submit that in a case where the limit of offer-cum-allotment letter is required to be extended, such extension would be subject to the modification in the rates of allotment with simple interest.

4. Per contra, Mr. R.V. Deshmukh, learned counsel for the respondent, in support of the learned single Judge's order, submits that the order impugned contains all the details of the transaction, communication made by both the parties and the development during the course of hearing. He submitted that there was no concluded contract. The appellant Corporation had sent offer-cum-allotment orders and it was on fulfillment of the conditions by the parties that there was to be a concluded contract. Learned advocate Mr. Deshmukh submitted that the conduct of the appellant Corporation was arbitrary, unjust and against the terms and conditions of the offer-cum-allotment orders, which made the respondent claim for refund. The offer-cum-allotment order was in the name of M/s. Dhurv Pipeline Products Private Limited while it was asked by the respondent to be issued in the name to Dhurv EPC Solutions Private Limited so as to facilitate the procurement of finances.

4.1 Learned counsel Mr. Deshmukh submitted that the Memorandum of Understanding was drawn on 12.01.2011 for the project namely, Heat Exchangers / Pressure Vessels, Dahej, Vagara, Bharuch. The appellant Corporation was to facilitate the respondent to obtain necessary permission/registration/approval/clearance etc. from the concerned Department of the State as per the existing policies and rules and regulations of the State Government. The said MoU was for the establishment of the project in Gujarat in a time-bound manner. Learned counsel Mr. Deshmukh submitted that by letter dated 23.03.2011, the respondent had informed about the change of name of the company from "Dhruv Pipeline Products Pvt. Ltd." to "Dhruv EPC Solutions Pvt. Ltd." to the appellant Corporation praying to amend the record of the appellant Corporation accordingly. In spite of that the offer-cum-allotment order dated 31.03.2011, on the application dated 21.12.2010, was in the name of M/s. Dhruv Pipeline Products Pvt. Ltd. Learned counsel Mr. Deshmukh stated that the respondent had applied for 50,000 Sq. Mtrs., the appellant Corporation by the said offer-cum-allotment only granted 2017.78 Sq. Mtrs. The respondent, thereafter, raised the grievance and requested for allotment of 50,000 Sq. Mtrs. area and so, by communication dated 17.09.2011, the appellant Corporation advised the respondent to submit revised project report, which was forwarded to G.M. of the appellant Corporation for appropriate decision. He submitted that in pursuance of the said revised project report, the appellant Corporation, vide its offer-cum-allotment order dated 11.01.2012, allotted plot No.D-II/E/338, admeasuring 46,719.48 Sq. Mtrs. at Rs.715 per Sq. Mtrs. Aggrieved by the rate, the respondent requested the appellant Corporation to consider the rates as per original offer at Rs.550/- and further drew the attention of the Corporation to amend the order in the name as per the request.

4.2 Respondent's advocate Mr. Deshmukh contends that since it was not heard from the appellant Corporation in response to the request made, to avoid any complication, under protest the respondent deposited 50% of the total amount computed at Rs.1,75,37,460/- in the offer-cum-allotment letter dated 11.01.2012. Learned counsel Mr. Deshmukh contended that on depositing 50% amount and fulfilling the other requirements, the appellant Corporation was required to hand over possession of the plot, but no delivery was made, reminders were sent requesting the Corporation for change of name in the offer-cum-allotment letter as well as to extend the time to deposit the remaining amount. It was contended that to the utter shock and surprise of respondent, the communication dated 05.05.2012 declining the request to change the name was received on the ground of non-payment within the stipulated time and the offer- cum-allotment letter was treated as closed and thus, by communication dated 19.05.2012, the respondent objected to that decision of the appellant Corporation.

4.3 Learned advocate Mr. Deshmukh further submits that the Corporation's decision on 30.10.2012 to refund an amount of Rs.1,40,29,968/- against the total amount of Rs.1,75,37,460/- was without any justification. The said action was without any power and jurisdiction and it was a mala fide exercise on the part of the Corporation. On receipt of the communication dated 30.10.2012 from the Corporation, the respondent with his officials, met M.D. of the Corporation on 08.11.2012 in presence of Mr. Rayji Patel, President of Naroda Industries Association and apprised the entire facts of the case. Thus, on request of the respondent, the Corporation got ready to revive the order for allotting of the plot in question. Thereafter, the communication dated 30.03.2013 of Corporation, reviving the offer-cum-allotment of plot in question, came to be received by the petitioner with a condition of payment of interest on delayed period up to 31.03.2013. Against that the respondent made a detail representation on 03.05.2013, requesting the Corporation to review the revival request by foregoing the payment of interest, contending to the Corporation that on 05.05.2012 the offer came to be closed and thus was not possible for the respondent to pay any installment between 05.05.2012 to 30.03.2013 and further, as the possession of the plot was not handed over to the respondent, it was contended that the Corporation was not justified to ask for interest for the delayed period. The request was turned down by the Corporation by communication dated 21.06.2013. Mr. Deshmukh submitted that being aggrieved by the said act of the Corporation, the respondent had invoked extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India.

5. Heard learned counsel on both the sides and perused the material placed on record. Emphasis of Mr. R.R. Marshal, learned senior counsel, was on the fact that the learned single Judge was not right in directing the appellant Corporation to refund the amount of Rs.1,75,37,460/- along with interest to the respondent. The reliefs prayed before the single Judge were to direct the Corporation to allot the Plot No.D-II/E/338, admeasuring 46719.84 Sq. Mtrs. at Dahej II Industrial Estate @ Rs.550/- per Sq. Mtrs. and to reschedule the installments from the date of possession of the plot in question. Prayer was also made to quash and set aside the decisions of Corporation dated 05.05.2012, 30.10.2012 and 30.03.2013 declaring the same to be mala fide, arbitrary, unreasonable, unjust and violative of Article 14 of the Constitution of India. Interim prayer was made directing the Corporation to handover the actual and physical possession of plot no.D-II/E/38, admeasuring 46719.84 Sq. Mtrs. at Dahej-II Industrial Estate.

5.1 After hearing both the sides, the learned single Judge, however, was pleased to pass an order in the captioned petition on 06.05.2014, which is extracted hereinbelow to consider the controversy involved in the present Letters Patent Appeal:

"Heard learned advocate appearing for the respective parties. Rule returnable on 02/07/2014. Mr. Rituraj Meena, learned advocate waives service of Rule on behalf of the respondent. It would be open for the respondent Corporation to consider the case of the petitioner if he is ready and willing to pay the remaining 50% amount."

5.2 It emerges from record that pursuant to the said order 06.05.2014, the respondent herein made representation to the Corporation on 14.05.2014 expressing its willingness to honour the commitment as per the offer-cum-allotment letter dated 11.01.2012 and its readiness to pay the balance 50% amount. The respondent requested the Corporation to accept the offer by handing over the possession of the plot reminding the Corporation of having already deposited 50% amount on 23.03.2012. The representation of the respondent was replied on 19.06.2014, requesting to remain present for personal hearing on 27.06.2014.

5.3 The Corporation thereafter by letter dated 07.08.2014 rejected respondent's representation dated 14.05.2014 citing that the respondent has declined to accept the decision of G.I.D.C. for revival of offer. It appears that the respondent's case pursuant to order of this Court was considered in light of the policy of the appellant Corporation to demand delayed payment along with interest or on the new allotment price, which ever would be higher. The appellant Corporation, however, informed the respondent its readiness to consider the request of the respondent for revival of the offer for allotment on acceptance of the terms and conditions of payment as per the policy and therefore, called upon the respondent to pay principal amount with interest on delayed payment till the date of payment accounting to Rs.3,79,23,585/- or the amount as per the new prevailing allotment price of Dahej Estate at Rs.1,140/- per Sq. Mtrs. calculated as Rs.5,68,59,052/-. In view of the deposit of Rs.1,75,37,460/-, the respondent was called upon to pay the balance amount of Rs.3,93,21,592/-, which included cost of plot, frontage charge, education cess, PCPIR charge and charge for fund for education.

5.4. It is to be noted that the communication dated 14.05.2014 of the respondent and communication dated 07.08.2014 of the Corporation placed on record were subsequent to the order passed by the learned single Judge.

6. The cause of action before the learned single Judge was the plot ad-measuring 46,719.84 Sq. Mtrs. offered @ Rs.715 per Sq. Mtrs., which was found to be unreasonable and arbitrary by the respondent, who claimed at the rate of Rs.550/- per Sq. Mtrs., and who under protest had deposited 50% of the total amount i.e. Rs.1,75,37,460/- to the Corporation on 23.03.2012. At the same time, the learned single Judge was to consider the development between the parties after the order dated 06.05.2014.

6.1 During the course of hearing before the learned single Judge, Mr. R.V. Deshmukh, learned advocate for the present respondent, filed an affidavit on 03.08.2016 along with the proposal dated 06.10.2015 forwarded to the Corporation for refund of the deposited amount i.e. Rs.1,75,37,460/- along with the interest @ 13.50% p.a. from the date of payment till the date of refund and it was stated before the learned single Judge by the said proposal that the present respondent shall waive all the claims of the allotment and possession of the plot in question. Mr. R.R. Marshal, learned senior counsel appearing with Mr. Rituraj Meena for the Corporation in the changed situation argued that the proposal of refund of money can be considered by the Corporation but in accordance with the policy. It was in this background the matter was heard by the learned single Judge.

6.2 The Circular dated 02.05.2012 was relied upon by the Corporation, against that the reply affidavit of the respondent on record contends that the said Circular dated 02.05.2012 would not be applicable, as it was in context of the cases in extension and in the present case the allotment of plot was much earlier; 40 days delay in depositing 50% amount was due to the arbitrary action of the GIDC, since the offer letter was not issued in the new name of the Company, despite several requests. Respondent refuted the policy of Corporation on the ground that the revision of rates by the Corporation was much later to the offer of allotment, making the policy inapplicable to the present case.

6.3 The additional affidavit on behalf of the Corporation was affirmed on 28.07.2016. The Regional Manager of the Corporation states that the present respondent was offered Plot No.D-II/E/338, admeasuring 46,719.84 Sq. Mtrs. vide allotment-cum-offer letter dated 11.01.2012.

The respondent was required to pay down payment within 30 days on receipt of the offer-cum-allotment letter. The respondent's deposit of Rs.1,75,37,460/- on 26.03.2012, was delayed payment of 68 days. The respondent's request of incorporating the change in the name of Company could not be considered till allotment proceedings gets over, which would be the period from the issuance of offer-cum-allotment letter to handing the physical possession of the plot, hence, on request being rejected, the offer of allotment of plot was cancelled vide letter dated 05.05.2012. However, since the respondent requested for refund of the down payment amount vide letter dated 28.06.2012, the matter was processed for working out the refund and finally on 30.10.2012 the order of refund of Rs.1,40,29,968/- was issued.

6.4 It further transpires from the affidavit that thereafter, the respondent's request for revival of the offer-cum-allotment order was examined by the Corporation in its board meeting, where in the meeting, it was decided to revive the offer at the allotment price of financial year 2011-12, in spite the fact that allotment price had increased in financial year 2012-13, and as the land in question was blocked, it was decided to recover interest for such period.

6.5 The learned single Judge observed that pursuant to the order dated 06.05.2014 respondent did approach the Corporation showing his readiness and willingness to deposit remaining 50% amount; however, the respondent was served with the order dated 07.08.2014 where the allotment price of the said land had been increased from Rs.715/- per Sq. Mtrs. to Rs.1,140/- per Sq. Mtrs. and the total value of the said plot was fixed at Rs.5,68,59,052/-. Balance amount of Rs.3,93,21,592/- was asked to be paid, Rs.2,17,84,132/- more was demanded by the Corporation than the offer on 11.01.2012. The respondent was unable to pay such huge amount fixed by the Corporation, and therefore, respondent asked for refund of the money already deposited with the Corporation, this demand for refund of money was made in October, 2015 during the pendency of the petition. Since, there was no response from the Corporation, the respondent placed on record a proposal dated 06.10.2015 declaring that it was not interested in the plot and claimed for refund of Rs.1,75,37,460/- with interest @ 13.50% p.a. from the Corporation.

6.6 In light of these circumstances, the learned single Judge moved forward to decide, whether the request made by the respondent for refund of the amount with interest @ 13.50% p.a. be entertained under Article 226 of the Constitution of India?

6.7 The learned single Judge, while placing reliance on the law propounded in the cases of ABL International Limited and Another Vs. Export Credit Guarantee Corporation of India Limited And Others, (2004) 3 SCC 553, Noble Resources Limited Vs. State of Orissa and Another, (2006) 10 SCC 236 and Zonal Resources Limited Vs. State of Orissa And Another,2006 10 SCC 186, analyzed the facts of the case. Expressing the object of the Gujarat Industrial Development Corporation established under Gujarat Industrial Development Act, 1962 and the expectations from the officers dealing with land, the learned single Judge referred to the "MOU entered on 12.01.2011 during the Vibrant Gujarat Summit" and observed that pursuant to the application, the respondent on 09.12.2010 demanded a plot ad-measuring 50,000 Sq. Mtrs. and prior to the offer-cum-allotment order had requested the concerned authority for a change in the name by annexing certificate issued by the Registrar of the Company. It has been observed by the learned single Judge that without considering the said request of the respondent, the offer-cum-allotment letter was issued on 31.03.2011 allotting only 2017.78 Sq. Mtrs. of land, which is less than 5% of the total demand. Repeated requests were made by the respondent to issue fresh offer-cum-allotment letter in the new name of the Company with its readiness and willingness to pay the amount demanded by the appellant Corporation in the offer-cum-allotment order dated 11.01.2012. It has been observed by the learned single Judge that the officers of the appellant Corporation continued to neglect the request and continued making correspondences in the old name of the respondent Company. The request of the respondent remained unattended, which establishes the arbitrary, indifferent and unreasonable approach of the appellant Corporation.

7. The reasonings given by the learned single Judge are based on the material available on record. The respondent had submitted its On-line application for allotment of 50,000 Sq. Mtrs. of land at Dahej for setting up its industrial unit. The M.O.U. was signed on 20.10.2011 by the respondent in the name of "Dhruv Pipeline Products Private Limited" as a Company incorporated under the Companies Act, 1956, having its Corporate Office at E-44-45-46, GIDC Estate Manjusar, Faluma: Savil, Dist. Vadodara Gujarat. The proposed year of commencement of the project was 2013. The appellant Corporation was to facilitate the respondent Company to obtain necessary permission / registration / approvals / clearance etc. from the concerned Department of the Sate, as per the existing policies / rules and regulations of the State Government. The M.O.U. was drawn to facilitate the respondent Company in the setting up of the project in a time bound manner. On 23.03.2011 the respondent Company addressed a communication to the appellant Corporation seeking change in its name from "Dhruv Pipeline Products Pvt. Ltd." to "Dhruv EPC Solutions Pvt. Ltd." with effect from 29.01.2011 along with a copy of the Registration Certificate and also requested that all future communications may be addressed in the new name. In spite of that on 31.03.2011 the allotment of the land in question being Plot No. D-II/E/338 at Dahej II Industrial Estate, was made in the name of the respondent Company. The respondent Company was allotted only 2017.78 Sq. Mtrs. plot @ Rs.550/- per Sq. Mtrs. of land with Frontage Charges costing at Rs.11,65,268/- along with PCPIR charges at the rate of Rs.15/- per Sq. Mtrs. for the allotted land of 2017.78 amounting to Rs.30,267/-. The offer-cum-allotment letter refers to the procedure for obtaining possession with the direction to the allottee to send the offer amount as mentioned along with "Acceptance-cum- undertaking of offer letter" within 30 days instructing that if (1) offer amount, (2) Form of Agreement (3) Acceptance-cum-undertaking of offer letter were not received by the appellant Corporation within 30 days, the offer will stand cancelled automatically and thereby, making the allottee dis-entitled to get the land at the offered price and also loosing its priority, ultimately, making the application of the allottee to be close automatically. The offer amount was to the extent of 30% of the total price and thus, the respondent Company was required to make payment of Rs.3,49,580/- to the plot offered price of Rs.11,65,268/-. PCPIR charges were to be paid in one stroke and the plot was offered on "as is where is basis" for the purpose of setting up unit for manufacturing of heavy exchangers, pressure vessels, heavy fabrication. It was stipulated that on receipt of the agreement duly executed, possession advice was to be issued and the respondent Company was required to obtain the possession from Deputy Executive Engineer, GIDC, Bharuch. The terms of payment of the balance amount were also set down in the said offer- cum-allotment letter along with other conditions for drainage system, water supply and power supply. The respondent vide four different letters made a request to the appellant Corporation to allot him 50,000 Sq. Mtrs. area for their project as applied for reiterating their capability of coping up the project schedule, laying down the justification for their requirement.

7.1 The appellant Corporation, vide communication dated 17.09.2011, advised the respondent to submit revised project. Responding to the advice, the respondent submitted its revised project report to the appellant Corporation on 19.09.2011, which was forwarded to the G.M. allotment on 19.10.2011 for appropriate decision.

7.2 The approach of the officer of the Corporation appears to be quite callous as the consistent prayer made by the respondent for change in name in the offer-cum-allotment letter was ignored. To the demand of 50,000 Sq. Mtrs., only 2017.78 Sq. Mtrs. land was allotted. Even after, revised project report was called for and all the communications thereafter by the respondent was in the name of Dhurv EPC Solution Private Limited and in spite of informing the Corporation for the allotment of plot of 50,000 Sq. Mtrs. in the name of Dhurv EPC Solutions Private Limited, having produced the certificate regarding change in name to the Corporation, it was not considered and the offer-cum- allotment letter dated 11.01.2012 was in the same original name of the Company. Letters were addressed raising grievance relating to increase in the Sq. Mtrs. rate. The request for the change in name was declined by the Corporation on 05.05.2012 stating that respondent had not made the down payment within the stipulated time period and treated the application as closed.

7.3 Prior to 05.05.2012, vide letter dated 23.03.2012 the respondent company expressed its readiness to proceed by enclosing D.D. No.001673 dated 24.03.2012 for Rs.1,75,37,460/- drawn on HDFC, Ankleshwar Branch towards 50% payment on the offer-cum-allotment letter dated 11.01.2012, form of agreement duly signed by directors, board resolution copy for purchase of industrial plot at Dahej. The said payment was made under protest, referring to the difference in rate between first allotment letter and second allotment letter towards the same application made by the respondent. It was specifically expressed by the respondent that, in case of delay in providing facilities / infrastructure, responsibility would be of the Corporation, and correspondingly asked to extend the date of the stage of project implementation.

7.4 It is pertinent to note that the offer-cum-allotment letters dated 31.03.2011 and 11.01.2012 were towards the application dated 22.12.2010 of the respondent. In spite of demand for 50,000 Sq. Mtrs. area for the project, the respondent was given only 2017.78 Sq. Mtrs. at Rs.550/- per Sq. Mtrs. Thereafter, in the offer-cum-allotment letter dated 11.01.2012, the allotted land was 46,779.48 Sq. Mtrs. area at Rs.715 per Sq. Mtrs. with the total net allotment price of Rs.3,50,74,920/- and PCPIR charge was Rs.7,00,798/-. The said offer-cum-allotment letter dated 11.01.2012 called for the payment of 50% of the net allotment price, totaling to Rs.1,75,37,460/- with the procedure of obtaining possession, laying down the mode of payment, which reads as under:

"Mode of Payment

a) The payment can be made through two options, as below:-

i. Upfront Payment

The allottee can make an upfront payment of the full Net Allotment Price. ii. Installment Payment:

The allottee can make payment of 50% of the net allotment price, i.e. Rs.1,75,37,460/-. The balance amount of Rs.1,75,37,460/- (Rupees one Crore Seventy five lakhs thirty seven thousand four hundred sixty only) being 'balance capital' shall be payable in 12(PDC) equal quarterly installments with 13.5% rate of interest by post dated Cheques (PDCs). You shall have to pay 1% administrative charges Rs.1,75,375/- (Rupees one lakh seventy five thousand three hundred seventy five only) & service tax @ 10.00% Rs.17,537/- & education cess Rs.526/- in form of DD in favour of GIDC payable at Ankleshwar. Total Rs.1,94,31,696/-

Rate of Interest: The rate of interest mentioned above is subject to revision from time to time at the discretion of the Corporation and the interest would be payable at such revised rates and from such dates as may be specified by the Corporation from time to time.

Rate of Interest on delayed payment; In case of default in payment of schedule installments, the Corporation levies penal interest at the rate of 3% over and above the normal interest.

Administrative Charges: corporation levies 1% administrative charge on the 'balance capital'.

b) Revenue Chrages/Contribution towards Infrastructure Development Fund, as applicable, will be charged separately every year.

c) Allottee shall have to pay the development charges, if applicable.

d) Prior permission of the Corporation is required to be taken by the allottee, bank, financial institution or any other person for creating a lien on the property. If prior permission of the Corporation is not obtained, the concerned person/institution will not have any kind of lien on the property allotted."

8. The learned single Judge vide order dated 12-16/08/2016 in Special Civil Application No.12391 of 2013, observed in paragraph nos.20 to 23, as under:

"20. It is pertinent to note that the petitioner had issued Demand Draft from the Bank account of the petitioner Company itself which was accepted on 23.3.2012 by the respondent Corporation. However, on 5.5.2012, it was informed by the respondent Corporation to the petitioner that it is not possible to change the name of the petitioner since the amount was not paid within stipulated time. Since the petitioner was fed up with the conduct of the Officers of the respondent Corporation, the petitioner requested to refund the amount of Rs.1,75,37,460/-. However, vide letter dated 30.10.2012, the respondent Corporation informed the petitioner that the petitioner would be entitled for an amount of Rs.1,40,29,968/- thereby deducted Rs.35,07,492/- at no fault of it. Therefore, in my opinion, the petitioner rightly did not accept the said amount and continued to make representation for allotment. If the communications dated 30.3.2013 and 21.6.2013 are perused, which are sent by the respondent Corporation, it appears that the respondent Corporation is raising the price on each time. It is also pertinent to note that the correspondences between the parties suggest that the contract never ended and it remained alive.

21. It is an undisputed fact that though an amount of Rs.1,75,37,460/- was paid by the petitioner and accepted by the Corporation, the possession of the plot was never handed over to the petitioner and the petitioner was unable to use the said plot. Therefore, it can be said that the amount received by the Corporation was lying with it and/or must have circulated for other purposes. It is an undisputed fact that the respondent Corporation was not restrained by any order either by this Court or by other Court not to allot the disputed land to any other person. However, it is to be noted that the Corporation itself has not dealt with the plot since the litigation was pending before this Court, but the fact remains that the amount deposited by the petitioner on 23.3.2012 was lying with the Corporation.

22. In the peculiar facts and circumstances of the case and considering the reasons for non- payment of the petitioner and the action of the Officers of the respondent Corporation in not changing the name of the petitioner Company which resulted into not getting loan from the financial institutions, in my opinion, the petitioner was not at fault. I am of the opinion that the Officers of the respondent Corporation have acted contrary to the public good and have acted unfairly, unjustly, unreasonably in dealing with a citizen who had deposited huge amount way back on 23.3.2012. Therefore, in my opinion, it is a fit case to exercise the powers under Article 226 of the Constitution of India and I am of the opinion that the request of the petitioner for refund of the amount is a reasonable one. However, the interest @ 13.50% asked for by the petitioner is on the higher side. It is pertinent to note that the respondent Corporation is not in the business of finance and, therefore, interest demanded by the petitioner cannot be accepted.

23. In the premises aforesaid, the present petition stands partly allowed. The respondent Corporation is hereby directed to refund an amount of Rs.1,75,37,460/- (Rupees One Crore Seventy Five Lacs Thirty Seven Thousand Four Hundred Sixty only) with interest @ 6% p.a. from 30.10.2012 i.e. the date when the respondent for the first time offered some refund, till realization. The said amount shall be refunded by the respondent Corporation to the petitioner within a period of six weeks from the date of receipt of this order."

9. The policy relied upon by the appellant Corporation is in the form of the Circular dated 02.05.2012. Both the offer-cum-allotment letters were in response to the application dated 22.12.2010 submitted by the respondent. It is not in dispute that the parties are bound by the agreed terms and conditions. In the present case, admittedly, there is no concluded contract. The appellant Corporation has already cancelled the offer-cum-allotment given to the respondent vide letter dated 05.05.2012. The amount of Rs.1,75,37,460/- deposited by the respondent was processed by the appellant Corporation while considering the issue of refund and thus, it is clear that the appellant Corporation had the intention to close down the application of the respondent. There was no upfront payment of the entire net allotment price as the respondent had accepted the second option of installment payment and had paid 50% of the net allotment price. On perusal of the mode of payment, it appears that there were no condition for deduction of any amount from the allotment price as mentioned in the offer-cum-allotment letter in case of any subsequent cancellation of the offer-cum-allotment. The administrative charges were to be levied on the balance capital and penal interest was to be charged, over and above the normal interest, in case of any default in the payment of scheduled installments.

10. The decision as to what terms and condition should be included in the agreement is, undoubtedly, a policy decision and as such, the concerned authority is the best person to determine as to what terms and conditions are required for the successful completion of the work / project concerned. Thus, it is primarily for the authority concerned issuing the offer-cum-allo

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tment letter to decide as to what terms and conditions should be incorporated. If the State or its instrumentality acts contrary to public good or public interest or in an unfair, unjust or unreasonable manner while performing its contractual obligations arising out of non- statutory contracts, then such acts would be contrary to the Constitutional guarantee provided under Article 14 of the Constitution and in a given case, if such guarantee is found to have been denied, the remedy under Article 226 of the Constitution would be available to undo the wrong done by the State /instrumentality and to command the State to pay its unpaid dues, which it is bound to pay under its contractual obligation but had refused to pay on an unfair, unjust or unreasonable ground. 11. In the case of Andhra Pradesh Industrial Infrastructural Corporation Limited And Another Vs. Shivani Engineering Industries,2015 1 SCC 24, it was observed that, the Corporation and its officers were found to be generous in extending time in favour of the allottees for implementing the projects on the allotted plots. The Corporation was not found diligent in disposing of the industrial plots acquired by it in accordance with law, in favour of the eligible applicants to start industries on the allotted plots to generate employment, to provide employment to the unemployed youths in the State. The observation of the learned single Judge in the present case, against the officer of the Corporation is in consonance with the view expressed in the referred judgment. In this case, no physical possession of the plot was given to the respondent. Offer-cum-allotment letter was not sent in the name as requested by the respondent. 12. The offer-cum-allotment letter does not lay down any terms to deduct any amount from the 50% of the net allotment price deposited by the respondent. The appellant Corporation appears to have closed the application of the respondent, on 05.05.2012, after the Circular dated 02.05.2012. The respondent had deposited the D.D. dated 24.03.2012 for Rs. 1,75,37,460/-. There is no justification for deduction of any amount while granting the refund and therefore, the deduction effected by the appellant Corporation is unfair and would amount to unjust enrichment. 13. The Hon'ble Supreme Court in case of ABL International Limited and Another Vs. Export Credit Guarantee Corporation of India Limited And Others (supra) given answer to all issues raised in the present appeal. The legal principles regarding the maintainability of writ petition in contractual disputes have been laid down thus: "(A) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (B) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (C) A writ petition involving a consequential relief of monetary claim is also maintainable." 14. In view of the above observations and discussions, we are of the considered view that the judgment and order passed by the learned single Judge in Special Civil Application No.12391 of 2013 dated 12- 16/08.2016 for refunding the deposited amount is just and proper and requires no interference. In the result, the appeal stands dismissed. No order as to cost. 15. Both connected Civil Applications were disposed of by this Court vide order dated 01.08.2019. Civil Application No.1 of 2016 filed by the Corporation for interim stay came to be confirmed. As the main appeal is dismissed by this order, the interim relief granted earlier stands vacated.
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