1. Heard learned counsel for the appellant Steel Authority of India Limited, (hereinafter referred to as "SAIL"), as also learned senior counsel for the contesting respondent company.
2. The appellant SAIL is aggrieved by the impugned Judgement dated 05.02.2016, passed by the Hon'ble Single Judge in W.P.(C) No. 7614 of 2013, whereby the writ application filed by the respondent writ petitioner challenging the order dated 23.10.2013, issued by the appellant SAIL, withdrawing the allotment letter dated 07.02.2009 issued in favour of the petitioner for construction of Hyper Market on the land in question, has been allowed by the Hon'ble Single Judge, setting aside the order dated 23.10.2013, and directing the authorities concerned to consider the case of the writ petitioner and take a final decision in accordance with law.
3. The appellant SAIL had initiated a proposal for allotting a plot of land in Sector-III of the Bokaro Steel City, measuring an area of 87,120 Sq. feet, on a lease of 33 years, for the amount of Rs.1,54,15,531/-, for the purpose such as, construction of Banks, Shops, Cinema Halls, Nursing Homes, Petrol Pumps, Expellers, Wheat Grinding, Etc. The land was allotted in favour of the respondent writ petitioner vide allotment letter dated 07.02.2009, for construction of Hyper Market, and pursuant thereto the writ petitioner also deposited the aforesaid amount. Subsequently, by a letter dated 24.12.2010 the appellant SAIL regretted and showed their inability to execute the formal lease deed in favour of the writ petitioner, which was challenged by the writ petitioner in W.P.(C) No. 851 of 2011. The said writ application was allowed by order dated 31.01.2012, by the Writ Court, finding that the letter dated 24.12.2010 was issued without giving any notice to the writ petitioner and accordingly, the same was quashed giving liberty to take decision in accordance with law.
4. Thereafter a show-cause notice was given by the appellant SAIL to the writ petitioner. His queries were also met, and finally by communication dated 23.10.2013, as contained in Annexure-4 to the memo of appeal, the appellant SAIL informed the writ petitioner that for the reasons stated in the said letter the request for the allotment of plot for construction of Hyper Market was found not permissible and accordingly, the letter of allotment dated 07.02.2009 was again withdrawn by the appellant SAIL. The writ petitioner was also given the liberty to take back the entire money, i.e., Rs.1,54,15,531/- with interest at the rate of 9% per annum, within a period of 15 days, failing which no further interest was to be paid. The reasons that were given for cancellation of the allotment order were enumerated as follows in the order dated 23.10.2013:-
"In the above back drop the position as emerges is summarized below:-
a) You were not found suitable in the tendering process even then your case was processed based on your subsequent unsolicited / direct request for allotment of the plot for the purpose of hyper market.
b) BSL wrongly interpreted the approved terms and conditions by the Board of Directors to cover allotment of plot for hyper market.
c) Valuation report received from SAIL was understood by mistake as clearance for allotment also.
d) Thus the Allotment order issued by SAIL, BSL not only suffers from procedural infirmity but it violated the mandate of the Board.
Thus on re-examination in depth and entirety in light of the mandate of the Board of Directors and clarification by SAIL Corporate office your request for allotment of plot for hyper market is not found permissible."
5. The respondent writ petitioner again challenged the said order in this Court in W.P.(C) No. 7614 of 2013, which was finally adjudicated by the Hon'ble Single Judge, and by Judgement dated 05.02.2016, the Hon'ble Single Judge has allowed the writ application finding that under Clause 3(a)5 of the decision taken in its 340th meeting of the Board of Directors of SAIL, it had been decided to allot the plot with the approval of the Chief Executive of the Plants / Units for other purposes such as Banks, Shops, Cinema Halls, Nursing Homes, Petrol Pumps, Expellers, Wheat Grinding etc.
6. The Hon'ble Single Judge found that though construction of Hyper Market was not there in the aforesaid decision, but the word "etc." made the sentence illustrative and not exhaustive and accordingly, it was absolutely wrong on the part of the authorities to say that the word "etc." would not include Hyper Market, Malls, Multiplexes or Cultural Complexes, as they are only the clusters of the shops which are for the public utility and they cannot be excluded saying that they were not forming part of the same series. The Hon'ble Single Judge held that it was wrong on the part of the authorities to say that the allotment of the land could not be made for the purpose of construction of Hyper Market and accordingly, quashed the order dated 23.10.2013.
7. Learned counsel for the appellant SAIL submits that the impugned order passed by the Hon'ble Single Judge cannot be sustained in the eyes of law, inasmuch as, the respondent was not found suitable in the technical bid and they were not technically sound for construction of the hyper market and accordingly, their matter was not considered. Subsequently on individual approach, their case was wrongly considered for construction of the hyper market and the allotment was also made, but in the meantime the Apex body of the Bokaro Steel City, i.e., SAIL, made the clarification that the word "etc." would not include Hyper Market in the same series of the terms, namely, Banks, Shops, Cinema Halls, Nursing Homes, Petrol Pumps, Expellers, Wheat Grinding etc. It is submitted that only after issuance of this clarification, the allotment order was cancelled. Learned counsel for the SAIL has placed reliance upon the Advanced Law Lexicon by P. Ramanatha Aiyar, wherein the word "etc." has been defined as follows:-
"Etc. or & C is an abbreviation of Et Cetera, and therefore may mean and others, and so forth; and the rest; other things; other things of the same character, or only those things ejusdem generis. Custom, the intention of the parties, the context, and the manner and place in which the abbreviation is used may govern its meaning; but where it can have one certain meaning, it will be given that meaning; although as sometimes used it is concerned as meaningless and without effect, and is often disregarded as surplusage (Cyc.)"
8. Learned counsel further submitted that in any event, even though the SAIL is a State within the meaning of Article 12 of the Constitution of India, but the transaction in question involved the private law rights and for enforcement of a private law right even between the State and an individual, the writ cannot be maintained. In support of his contention learned counsel has placed reliance upon the decision of the Hon'ble Apex Court in K.K. Saksena vs. International Commission on Irrigation and Drainage and Others, (2015) 4 SCC 670, wherein the law has been laid down as follows:-
"43. What follows from a minute and careful reading of the aforesaid judgments of this Court is that if a person or authority is "State" within the meaning of Article 12 of the Constitution, admittedly a writ petition under Article 226 would lie against such a person or body. However, we may add that even in such cases writ would not lie to enforce private law rights. There are a catena of judgments on this aspect and it is not necessary to refer to those judgments as that is the basic principle of judicial review of an action under the administrative law. The reason is obvious. A private law is that part of a legal system which is a part of common law that involves relationships between individuals, such as law of contract or torts. Therefore, even if writ petition would be maintainable against an authority, which is "State" under Article 12 of the Constitution, before issuing any writ, particularly writ of mandamus, the Court has to satisfy that action of such an authority, which is challenged, is in the domain of public law as distinguished from private law."
9. Learned counsel for the appellant has also submitted that the Hon'ble Single Judge has also not taken into consideration the fact that the writ petitioner was not technically sound and once it is the case of the SAIL that the appellant was not found fit in the technical bid, and even being found unfit he was given the allotment letter wrongly on the individual basis, the writ could not have been issued in favour of the writ petitioner. Learned counsel accordingly, submitted that the impugned Judgement passed by the Writ Court cannot be sustained.
10. Per contra, learned senior counsel appearing for the respondent writ petitioner company, has opposed the prayer, and has submitted that there is no illegality in the impugned order passed by the Writ Court, inasmuch as, having found everything in favour of the petitioner, the allotment was made in favour of the petitioner. The amount of money was accepted from the petitioner and only thereafter the allotment was cancelled which could not be allowed to be sustained. It has been pointed out by the learned senior counsel that the allotment of the petitioner has been cancelled on the wrong notion that the construction of Hyper Market would not come under the terms "etc.", being in sequence of the construction of Banks, Shops, Cinema Halls, Nursing Homes, Petrol Pumps, Expellers, Wheat Grinding etc., and the fact remains that under the same clause one Amit Realty Pvt. Ltd. had been allotted land for construction of Multiplex / Shopping mall, as noted by the Writ Court in the impugned Judgement, and in that view of the matter the same relief could not be denied to the petitioner, as the same would be violative of the Article 14 of the Constitution of India.
11. Having heard learned counsels for both sides and upon going through the record, we find that after the first writ filed by the writ petitioner was allowed by order dated 31.01.2012 in W.P.(C) No. 851 of 2011, the show-cause notice was given to the petitioner. In the show-cause notice and in the subsequent letter dated 11.08.2012, which had been brought as Annexure-7/1 to the writ application, it was informed to the respondent petitioner as follows :-
"It is stated that the credential with respect to your proposal for Shopping Mall / Multiplex was not shortlisted / selected by the committee with the remarks that "No drawing for the proposed Mall presented, no past experience of dealing such project of Multiplex / shopping Mall, no idea about source of funding for such a big project." Since you had not expressed your interest in the manner, what it would had been your technical capabilities were not assessed. As such, you were not allotted plot against the open process.
12. In reply thereto, by their letter dated 24.08.2012, as contained in Annexure -8/1 to the writ application, though the petitioner had replied that they had the technical competency to undertake the project of Hyper Market, and had also detailed their previous work experience, but while going through the work experience of the petitioner, we find that they had only given the instances of construction the marriage accommodation, residential accommodation and duplex houses. There is nothing even in this letter dated 24.08.2012, written by the petitioner company, to show that they had the experience of construction of malls, shopping complexes or the hyper markets, for which the present allotment was made to the petitioner. In that view of the matter, we find that it cannot be disputed that the writ petitioner was in fact lacking in the technical competency.
13. Even in the impugned order dated 23.10.2013 it was stated that the allotment of plot by SAIL / BSL is done through the tendering process and the writ petitioner had participated, but was not found suitable in the technical bid for allotment under their revised scheme for mall / multiplex, and the first ground for cancelling the allotment was that the writ petitioner was not found suitable in tendering process and their case was processed on their subsequent and unsolicited / direct request for allotment of plot for hyper market. Once the writ petitioner was not found fit in the technical bid, we fail to understand as to how a writ could be issued in their favour for allotment of the land for the purpose. This aspect of the matter has not at all been dealt with by the Hon'ble Single Judge in the impugned Judgement. We have also gone through the writ application filed by the petitioner, and there is no statement in the entire writ application, challenging the finding of the SAIL that the petitioner was not technically sound for the bid. In that view of the matter, we are of the considered view that once the petitioner was not found fit in the technical bid, and still their application was wrongly considered for any reason what so ever, at least no writ could have been issued in favour of the writ petitioner on this limited score alone.
14. We are of the considered view that on this limited aspect, apart from the other grounds urged by learned counsel for the appellant SAIL, the impugned Judgement dated 05.02.2016, passed in W.P.(C) No. 7614 of 2013, cannot be sustained in the eyes of l
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aw. 15. This brings us to the other aspect of the matter. The writ petitioner had admittedly deposited the amount of Rs.1,54,15,531/-, as demanded by the appellant SAIL, and in the order dated 23.10.2013, the writ petitioner was given the opportunity to take back the money within a period of fifteen days with simple interest at the rate of 9% per annum. The petitioner did not choose to do so and they filed the writ application which was allowed. The operation of the impugned Judgement has been stayed by the L.P.A. Court, by order dated 27.10.2016, while admitting this appeal. In that view of the matter, we are of the considered view that the writ petitioner would be entitled to the refund of the entire amount of Rs.1,54,15,531/-, with the interest at the rate of 9% per annum till 27.10.2016, when the operation of the impugned Judgement was stayed by the L.P.A. Court. 16. For the foregoing reasons, the impugned Judgement dated 05.02.2016, passed in W.P.(C) No. 7614 of 2013, is hereby set aside, and the appellant SAIL is directed to refund back the entire money to the respondent writ petitioner with the interest at the rate of 9% per annum, till 27.10.2016, within a period of one month from today. Any further delay in making the refund would saddle the appellant SAIL with the interest for the entire period till the date of refund. 17. This appeal is accordingly, allowed with the directions as above. The pending Interlocutory Application also stands disposed of.