Gujarat High Court
M/S First Carbon Techologies Pvt ... vs State Of Gujarat on 1 February, 2021
Bench: Vipul M. Pancholi
C/SCA/3238/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3238 of 2011
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 3238 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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M/S FIRST CARBON TECHOLOGIES PVT LTD
Versus
STATE OF GUJARAT & 3 other(s)
==========================================================
Appearance:
MR PERCY C KAVINA, SENIOR ADVOCATE WITH MR NV GANDHI(1693)
MR RONAK RAVAL, ASSISTANT GOVERNMENT PLEADER(1) for the
MR SN SHELAT, SENIOR ADVOCATE WITH MR RD DAVE(264) for the
Respondent(s) No. 2,3,4
==========================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 1/02/2021
CAV JUDGMENT
1. In this petition, which is filed under Article
226 of the Constitution of India, the petitioner has
prayed for the following reliefs:
"a) THIS HON'BLE COURT be pleased to issue writ
of declaration or writ in the nature of
declaration or any appropriate writ, order
or direction holding and declaring that the
Respondents are not entitle to withdraw 25%
concessions granted towards total
consideration for Plot No.DII/12A, D
II/12, DII/13 & DII/4 DahejII Industrial
Estate;
b) THIS HON'BLE COURT be pleased to issue writ
of declaration or writ in the nature of
declaration or any appropriate writ, order
or direction directing the Respondents to
issue separate agreements for each plots
without insisting payment of 25% concession
granted earlier towards total
considerations of the said plots;
c) THIS HON'BLE COURT be pleased to issue writ
of declaration or writ in the nature of
declaration or any appropriate writ, order
or directions directing the Respondents to
consider and grant 40 quarterly
installments on balance consideration of
the said plots after deducting an amount of
concession of 25%, with two years
moratorium including payment of interest in
eight quarterly installments instead of 12
nos. and be further pleased to direct to
extend the period of payment of balance
amount;
d) THIS HON'BLE COURT be pleased to issue writ
of declaration or writ in the nature of
declaration or any appropriate writ, order
or directions quashing and setting aside
the Notice dated 25.11.2010 under Section
4(1) of the Gujarat Public Premises
(Eviction of Unauthorized Occupants) Act,
1972 issued by Respondent No.4 - Competent
Officer and Regional Manager of Respondent
No.2;
e) That pending hearing and final disposal of
this petition this Hon'ble Court may be
pleased to stay the operation and
implementation of notice dtd. 25.11.2010 at
AnnexureAA to this petition and be further
pleased to restrain the Respondent from
pursuing demand of Rs.23,71,69,645/ within
3 days made vide letter dtd. 4.03.2011.
f) THIS HON'BLE COURT be pleased to grant ad
interim relief in terms of aforesaid para
e;
ff) THIS HON'BLE COURT be pleased to issue writ
of declaration or writ in the nature of
declaration or any appropriate writ, order
or directions and be pleased to direct the
Resp.G.I.D.C. to calculate outstanding
amount payable by the petitioner under the
said OTS scheme dtd. 19.06.2020 (Annex.
FF), and be further pleased to direct the
Resp. G.I.D.C. to accept the same within
30 days from the date of such acceptance."
2. Factual matrix of the case is as under:
2.1 The petitioner is a Company incorporated and
registered under the provisions of the Companies
Act, 1956. The petitioner was intending to
develop an import based industry at Vadadala,
Taluka Wagra, District: Bharuch. For the said
project, the petitioner through its associate
firm purchased some land at Vadadala and has
started construction of first phase. For the
various projects stated in the memo of the
petition with regard to the manufacturing of
COKONYX, Board of Directors of the petitioner
Company have signed Memorandum of Understanding
on 12/13.01.2009 with Government of Gujarat in
Vibrant2009. The petitioner applied for
allotment of the lands in GIDC at Dahej vide
application dated 02.04.2009. Pursuant to the
said application, respondent No.4 gave offer
cumallotment letter to the petitioner. As per
condition No.2 of such offer, the petitioner
Company was required to send offer amount, form
of agreement and acceptancecumundertaking
within a period of 30 days from the date of
receipt of the said letter. The petitioner
Company was required to make upfront payment of
Rs.13,18,56,400/ being 30% of the total price
of the land and balance amount of
Rs.30,76,69,600/ being 70% balance capital
within 12 quarterly installments with 12.5% rate
of interest and further required to pay 1%
administrative charges on the said balance
capital of 70% in form of Demand Draft in favour
of respondent No.2GIDC. In the said letter,
other terms and conditions are also set out. As
per the Policy of the respondents, 25%
concession was required to be given on the land
price and, therefore, the petitioner was
required to pay total amount of
Rs.43,95,28,000/ as per the calculation.
2.2 It is stated that in response to the said offer
cumallotment letter dated 19.06.2009, the
petitioner had given counter offer vide letter
dated 18.07.2009 whereby the petitioner has
requested for quarterly installments of balance
amount in 40 numbers with 2 years moratorium
including payment of interest in 8 quarterly
installments instead of 12 quarterly
installments. The petitioner Company also
requested for 10% down payment instead of 30%.
It has also requested for additional time to pay
the down payment. It is stated that the said
offer was not acceptable to respondent No.4.
Hence, vide letter dated 01.09.2009, the
petitioner Company had given counter proposal
for the allotment of plots in question.
Respondent No.2 has therefore vide letter dated
02.09.2009 had given fresh offercumallotment
to the petitioner along with form of agreement
in triplicate on the similar terms and
conditions mentioned in offer letter dated
19.06.2009. It is further stated that the
petitioner Company had paid down payment of
Rs.4,12,66,500/ and Rs.30,76,697/ towards
administrative charges. Thereafter, the
petitioner had paid an amount of
Rs.9,05,91,900/ towards down payment.
Thereafter, the petitioner has requested to
reshape the said plots considering their
requirement to establish 4 modules as per plan.
Once again request was made to respondent No.2
for 10% down payment instead of 30% and to grant
40 installments with 2 years moratorium
including payment of interest in 8 quarterly
installments instead of 12 and also requested
for additional time to pay the outstanding
amount. Thereafter, various correspondences were
exchanged between the parties with regard to the
payment of amount in question. The petitioner
was asked to pay balance capital of 12 postdated
cheques in favour of respondent No.2.
Thereafter, respondent No.2 had given possession
receipts of the plots vide letter dated
30.03.2010. The petitioner requested to give
separate agreement for each of the plots.
2.3 It is stated that the petitioner Company intends
to invest huge amount and at the time of taking
possession of the plots in question
approximately Rs.18 crores was paid and,
thereafter, as per the case of the petitioner,
purchase orders were issued and construction was
carried out in the portion of the land in
question.
2.4 It is further stated that respondent No.4 vide
letter dated 08.06.2010 has intimated the
decision taken in Board meeting dated 07.04.2010
withdrawing concession of 25% granted to the
land price of industrial plots in large
industrial estate like the petitioner and issued
corrigendum order withdrawing rebate at 5% on
cost of plot, the details of which are stated in
the memo of the petition. The petitioner,
therefore, vide communication dated 14.06.2010
made representation to the State Government to
review the decision of respondent No.2GIDC
withdrawing 25% concession and pass necessary
direction to revive the same. Once again, on
19.07.2010, the petitioner has explained its
difficulties and requested for reviewing the
decision on 25% concession, separate agreement
of each plot and additional time for repayment.
It is also stated that the petitioner Company
has thereafter instructed its Bank to stop the
payment of cheques issued by the petitioner in
favour of the respondent GIDC. Once again,
various correspondences were exchanged between
the parties.
2.5 It is the grievance of the petitioner that the
respondent GIDC issued notice dated 25.11.2020
under Section 4(1) of the Gujarat Public
Premises (Eviction of Unauthorised Occupants)
Act, 1972 ("the Act" for short) threatening to
make an order of eviction under Section 5 of the
Act. The petitioner has, therefore, filed the
present petition seeking various reliefs.
2.5 This Court has passed an interim order in the
present petition on 09.03.2011, which reads as
under:
"Heard Mr. Sunit Shah, learned advocate for
the petitioner.
He has submitted that at the time when the
letter of allotment was issued, condition
for payment was that the entire payment
must be made in 12 equal installments. The
said condition was coupled with the benefit
of 25% concession. However, the petitioner
company had requested that the company may
be allowed to make the payment in 40
installments instead of 12 equal
installments.
In response to the said request, the
respondent - Corporation had informed the
petitioner company that the 25% concession
would stand withdrawn in view of the
modified proposal/request by the petitioner
company.
Apropos the said difference between the
petitioner and the respondent Corporation,
learned counsel for the petitioner company
has submitted that the petitioner does not
insist for 40 installments and is ready to
make payment within 12 equal installments,
as per the original schedule, if the GIDC
also continues the original proposition of
granting 25% concession in the price of
land. He further submitted that in view of
the fact that the respondent - GIDC has
conveyed its agreement in principal with
regard to four separate agreements, the
only unresolved issue between the
petitioner company and the respondent GIDC
is about 25% concession in land price and
number of installments. He has submitted
hat the petitioner company will make
payment within 12 equal installments.
Considering the said submission, issue
Notice returnable on 28.3.2011. Direct
service is permitted.
On condition that the parties will maintain
statusquo, it is directed that until
returnable date, any steps of evicting the
petitioner may not be taken."
2.6 Thereafter, the respondent GIDC filed reply and
parties have filed rejoinder and surrejoinder.
In the meantime, this Court passed another
interim order dated 30.07.2012, which reads as
under:
Heard Mr. N.V. Gandhi, learned advocate for
the petitioner and Mr. Alkesh N Shah,
learned AGP, for respondent no. 1.
1. The issue involved in present petition
as raised by the learned counsel for the
petitioner is as to whether the respondents
is entitled to withdraw the concession
which was offered at the time when the
contract was executed between the parties.
Learned counsel for the petitioner has
relied on the decision passed in case of
Kishorkumar Prabhudas Tanna & anr. Vs.
State of Gujarat through secretary & Ors.,
reported in 2009 (1) GLR, 683 and the
learned counsel for the respondents has
relied on decision dated 22.01.2009 passed
by the Division Bench in Special Civil
Application No. 22102 of 2007.
In view of the contentions raised by both
the parties. Rule.
2. So far as the interim relief is
concerned it is necessary to take into
account the relief prayed by the petitioner
which reads thus:
a) This Hon'ble Court be pleased to issue
writ of declaration or writ in nature of
declaration or any appropriate writ, order
or direction holding and declaring that the
respondents are not entitle to withdraw 25%
concessions granted towards the total
considerations for Plot No. DII/12A, D
II/13 & DII/4 DehejII Industrial Estate:
b) This Hon'ble Court be pleased to issue
writ of mandamus or any other appropriate
writ in the nature of mandamus or any other
appropriate writ or directions directing
the Respondents to issue separate
agreements for each plots without insisting
payment of 25% concession granted earlier
towards total considerations of the said
plots;
c) This Hon'ble Court be pleased to issue
writ of mandamus or any other appropriate
writ in the nature of mandamus or any other
appropriate writ or directions directing
the Respondents to consider and grant 40
quarterly installments on balance
consideration of the said plots after
deducting an amount of concession of 25%,
with two years moratorium including payment
of interest in eight quarterly installments
instead of 12 nos. and be further pleased
to direct to extend the period of payment
of balance amount;
In para 12 (e) the petitioner has prayed
for below mentioned relief:
e) That pending hearing and final disposal
of this petition this Hon'ble Court may be
pleased to stay the operation and
implementation of notice dated 25.11.2010
at AnnexureAA to this petition and be
further pleased to restrain the respondent
from pursuing demand of Rs. 23,71,69,645/
within 3 days made vide letter dated
04.03.2011.
3. In this context, it is also necessary to
note that on 9th March 2011 the below
mentioned order was passed:
"On condition that the parties will
maintain statusquo, it is directed that
until returnable date, any steps of
evicting the petitioner may not be taken."
4. It is claimed by the learned counsel for
the petitioner that the possession of the
plot in question is with the petitioner
since long time. It is claimed that
actually, the possession of the plot in
question with the petitioner was even prior
to the date of present petition. It is also
claimed that the petitioner has completed
substantial construction of manufacturing
unit on the plot in question before the
impugned decision and also before the
petition came to be filed. The said
submissions are not disputed by the
respondent corporation.
5. In the light of aforesaid statement, it
is clear that the possession of the plot is
with petitioner before the date on which
the petition came to be filed. It is also
clear that the order dated 9th March,2011
granted by this Hon'ble court, has been in
operation, since about 16 months.
6. Therefore, so far as the petitioner's
request for interim relief is concerned, in
modification of the said order, it is
directed that the petitioner as well as
respondent shall maintain statusquo. The
petitioner will not alinate or transfer the
property in question in any manner
whatsoever, and the petitioner will make
payment of the entire amount as demanded by
the respondents. The allotment, occupancy
and possession of the plot in question, in
the hands of the petitioner, will be
subject to final order passed in this
petition. The construction and usage after
and pursuant to and during the pendency of
this petition will not create any right or
equity in favour of the present petitioner.
The order is passed in the light of the
petitioner's submission, that contract was
executed between the parties and the
respondent corporation handed over the plot
to the petitioner before the date of
impugned decision and before the date on
which the petition came to be filed."
2.7 It is further revealed from the record that
during the pendency of this petition, the
respondent GIDC floated One Time Settlement
Scheme on 19.06.2020. Pursuant to the said
Scheme, the petitioner vide Email dated
11.07.2020 requested the respondent GIDC to
unlock their online account so that outstanding
dues can be known to the petitioner. The
petitioner has shown its readiness and
willingness to avail benefit of OTS Scheme and
to make payment of the outstanding dues. Once
again the petitioner shown readiness and
willingness to clear outstanding amount as per
OTS vide communication dated 06.10.2020. It is
the grievance of the petitioner that though such
request is made, no reply is given by the
respondent GIDC and, therefore, the petitioner
requested to allow the draft amendment, which
eventually allowed and the petition has been
amended. The petitioner has now prayed for
further relief that the respondent GIDC be
directed to calculate the outstanding amount
payable under OTS Scheme and further direction
be given to accept the said amount within 30
days from the date of such acceptance.
3. Heard learned Senior Advocate Mr.Percy C. Kavina
assisted by learned advocate Mr.N.V. Gandhi appearing
for the petitioner, learned Assistant Government
Pleader Mr.Ronak Raval for respondent No.1 and
learned Senior Advocate Mr.S. N. Shelat assisted by
learned advocate Mr.R.D. Dave appearing for
respondent Nos.2 to 4.
4. Learned Senior Advocate Mr.Percy C. Kavina
assisted by learned advocate Mr.N.V. Gandhi appearing
for the petitioner has mainly contended that once the
Policy was framed by the respondents whereby it was
decided to give 25% concession on land price and
pursuant to which, offercumallotment letter was
issued by respondent No.2 to the petitioner, the
respondent ought not to have withdrawn the said
concession by changing the Policy. Thus, in the
present case, principle of promissory estoppel would
be applicable. It is urged that the respondent should
be estopped from withdrawing the promise given to the
petitioner. It is also submitted that on the basis of
the said promise given by the respondents, the
petitioner has acted and paid the amount of
approximately Rs.18 crores and, therefore, possession
of the plots in question has been given to the
petitioner. The petitioner has carried out
construction on the certain portion of the land in
question and, therefore, now the notice issued by the
respondents under the Act for vacating the premises
in question is to be set aside. Learned Senior
Advocate would further submit that the petitioner was
ready and willing to pay the outstanding amount in 40
quarterly installments as per the counter offer given
by the petitioner. However, when no reply was
received from the respondents, the petitioner
instructed Bank to stop the payment of the postdated
cheques given by the petitioner to the respondents.
4.1 Learned Senior Advocate Mr.Kavina would further
contend that even during the pendency of this
petition, when OTS Scheme is floated by the
respondent GIDC, the petitioner has shown willingness
to avail the benefit of the said scheme. However, no
reply is given by the respondent GIDC. Even on
18.01.2021, the petitioner has tried to give the
cheque to the respondent GIDC. However, said cheque
was not accepted. It is, therefore, urged that
impugned proceedings initiated under the Act be
quashed and set aside and the respondent GIDC be
directed to give benefit of OTS to the petitioner.
4.2 Learned Senior Advocate Mr.Kavina has placed
reliance upon a decision rendered by the Honourable
Supreme Court in the case of Manuelsons Hotels
Private Limited Vs. State of Kerala and others
reported in 2016(6) SCC 766.
5. On the other hand, learned Senior Advocate
Mr.S.N. Shelat appearing for respondent Nos.2 to 4
has vehemently opposed this petition and referred the
averments made in the affidavitinreply, additional
affidavitcumsurrejoinder, further affidavit as
well as affidavitinrejoinder filed by the
respondent in connected Civil Application No.1 of
2020. It is submitted that the petitioner was under
an obligation as per Clause10 of the offercum
allotment letter dated 19.06.2009 to get the building
plans approved by the competent authorities within
three months from the date of possession of land, to
commence construction work of factory within 12
months and to start commercial production within a
period of 3 years from the date of allotment letter.
However, the petitioner has intentionally flouted the
said conditions. It is submitted that as per the
Policy, initially, the concession of 25% was given on
the land price and as per offercumallotment letter
and Policy, the petitioner was required to make
upfront payment of Rs.13,18,58,400/ being 30% of the
total price of the plot and balance amount of
Rs.30,76,69,600/ being 70% balance capital within 12
quarterly installments with 12.5% rate of interest
and further required to pay administrative charges on
the said balance capital of 70% in form of Demand
Draft in favour of GIDC. However, the petitioner
requested for quarterly installment of balance
payment in 40 installments with 2 years moratorium
including payment of interest in 8 quarterly
installments instead of 12. The petitioner Company
also requested for 10% down payment instead of 30%.
The said proposal was not acceptable to the
respondent GIDC and, therefore, counter proposal was
given. Thus, on one hand, the petitioner is placing
reliance upon the Policy of the Government to give
25% concession on land price and on the other hand,
the petitioner was not agreeable for the other
conditions with regard to the mode of payment.
5.1 It is further submitted that thereafter,
possession of the land in question was given to the
petitioner on certain conditions and the petitioner
issued postdated cheques in favour of the GIDC.
However, in the meantime, before further agreements
were executed between the parties, the Government has
changed the Policy whereby 25% concession on price of
the land was withdrawn. It is thus contended that it
cannot be said that on the basis of the promise given
by the respondent, the petitioner has acted in
accordance with said promise and, thereafter, the
respondent has withdrawn the said promise. Thus, the
principle of promissory estoppel would not be
applicable.
5.2 Learned Senior Advocate Mr.S.N. Shelat has
thereafter contended that conduct of the petitioner
is also required to be seen by this Court before
granting any equitable relief in favour of the
petitioner. Learned Senior Advocate has referred the
interim order dated 30.07.2012 passed by this Court
in the present petition, wherein in Paragraph6, this
Court has directed that the petitioner will not
alienate or transfer the property in question in any
manner whatsoever and the petitioner will make a
payment of the entire amount as demanded by the
respondents. It is submitted that though the said
order was passed in July, 2012, the petitioner failed
to make any payment to the Bank and on the contrary,
cheques issued by the petitioner were dishonoured.
5.3 It is submitted that in fact, the present
petition itself is not maintainable and no vested
right is created in favour of the petitioner. Even
there is no contractual right existed in favour of
the petitioner. The petitioner did not execute the
lease deed. It is further submitted that if there is
a breach of condition of any agreement entered into
between the parties, it is always open for the
petitioner to file Civil Suit before the competent
Civil Court.
5.4 At this stage, learned Senior Advocate Mr.Shelat
would further submit that OTS is floated by the
respondent GIDC because of COVID19. It is submitted
that as on 31.10.2020, huge amount of
Rs.166,88,96,985/ is outstanding. It is submitted
that during the period between 201112 to 2020, the
respondent GIDC has introduced various OTS schemes.
However, at no point of time, the petitioner has
applied for OTS. Thus, in fact, the petitioner has no
intention to avail such scheme and on the contrary,
the petitioner has after getting interim relief in
the present petition, has enjoyed the land in
question without making any further payment as per
the original scheme. It is also pointed out from the
record that there are six industrial companies,
namely, (1) Adani Power Dahej Ltd., (2) Gujarat State
Fertilizer Company, (3) GNFC, (4) SFR Ltd., (5)
Alkalies & Chemicals Ltd. and (6) Action Petrochem
Pvt. Ltd. were allotted huge industrial plots without
any concession like the petitioner and all the said
Companies have successfully established their
industries. However, so far as the petitioner is
concerned, after getting possession of the huge
parcel of land admeasuring 12,45,746 sq. meters, it
has not made payment as per the original Policy of
the respondents. Thus, it is contended that the
petitioner is not entitled to claim any equitable
relief from this Court.
5.5 Learned Senior Advocate Mr.Shelat has placed
reliance upon the following decisions:
(1) Nidus Enterprises Pvt. Ltd. Vs. State of
Gujarat reported in 2014(3) GLH 66
(2) The Rajasthan State Industrial Development
and Investment Corporation and Anr. Vs.
Diamond and Gem Development Corporation
Ltd. and Anr. reported in AIR 2013 SC 1241
(3) Gohil Jesangbhai Raysangbhai Vs. State of
Gujarat reported in AIR 2014 SC 3687
(4) Raj Mineral Through Proprietor Sharad L.
Vyas Through POA Vs. State of Gujarat and
Ors. reported in 2011(3) GLH 257
6. Having heard learned counsel appearing for the
parties and having gone through the material placed
on record, it would emerge that the petitioner
Company have signed Memorandum of Understanding on
12/13.01.2009 with Government of Gujarat in Vibrant
2009. The petitioner applied for allotment of the
lands in GIDC at Dahej vide application dated
02.04.2009. Pursuant to the said application,
respondent No.4 gave offercumallotment letter to
the petitioner. The petitioner Company was required
to make upfront payment of Rs.13,18,56,400/ being
30% of the total price of the land and balance amount
of Rs.30,76,69,600/ being 70% balance capital within
12 quarterly installments with 12.5% rate of interest
and further required to pay 1% administrative charges
on the said balance capital of 70% in form of Demand
Draft in favour of respondent No.2GIDC. It is the
case of the petitioner that as per the Policy of the
respondents, 25% concession was required to be given
on the land price and, therefore, the petitioner was
required to pay total amount of Rs.43,95,28,000/ as
per the calculation. The petitioner thereafter had
given counter offer vide letter dated 18.07.2009
whereby the petitioner has requested for quarterly
installments of balance amount in 40 numbers with 2
years moratorium including payment of interest in 8
quarterly installments instead of 12 quarterly
installments. The petitioner Company also requested
for 10% down payment instead of 30% and requested for
additional time to pay the down payment. The said
proposal was not acceptable to respondent No.4.
Further, counter proposal for allotment of plots in
question was given by the petitioner. The petitioner
has thereafter made certain payments and
correspondences were exchanged between the parties
with regard to the amount in question. Postdated
cheques were also issued by the petitioner and,
therefore, respondent No.2 had given possession
receipt of the plots on 30.03.2010. It is the case of
the petitioner that approximately Rs.18 crores was
paid. However, it is not in dispute that respondent
No.4 vide letter dated 08.06.2010 has intimated the
decision taken in the Board meeting dated 07.04.2010
withdrawing concession of 25% granted to the land
price of industrial plots in large industrial estate
like the petitioner. In the present petition, the
petitioner has raised contention that the respondents
be estopped from withdrawing 25% concession granted
on the total land price. It is the case of the
petitioner that principle of promissory estoppel
would be applicable.
7. It is pertinent to note that as per the original
policy, initially, concession of 25% was given on the
land price and the petitioner was required to make
upfront payment of Rs. 13,18,56,400/ being 30% of
the total price of the land and balance amount of
Rs.30,76,69,600/ being 70% balance capital within 12
quarterly installments with 12.5% rate of interest.
In fact, the petitioner was not agreeable for the
same and the petitioner made counter proposal and
requested for quarterly installments of balance
amount in 40 installments with 2 years moratorium
including payment of interest in 8 quarterly
installments instead of 12. The petitioner also
requested for 10% down payment instead of 30%. Thus,
it appears that proposal and counter proposals were
given by the parties and though possession of the
plots in question was given to the petitioner on
30.03.2010, before further agreements were executed
between the parties, the Government has changed
Policy whereby 25% concession on the price of land
was withdrawn in its Board Meeting dated 07.04.2010.
Thus, within a period of 7 days after giving
possession of the plots in question, policy decision
was taken by the respondents for withdrawal of
concession of 25% granted to the land price of
industrial plots in large industrial estate like the
petitioner. Thus, in the facts of the present case,
it cannot be said that on the basis of the promise
given by the respondents, the petitioner has acted in
accordance with the said promise. When the petitioner
was not agreeable as per the original policy to make
the payment and repeatedly requested for making
payment in 40 quarterly installments and to make 10%
down payment only instead of 30%, this Court is of
the view that the principle of promissory estoppel
would not be applicable.
8. In the case of Manuelsons Hotels Private Limited
Vs. State of Kerala and others (supra), upon which,
reliance is placed by the learned Senior Advocate
appearing for the petitioner, the Honourable Supreme
Court has held that doctrine of promissory estoppel
is a doctrine whose foundation is that an
unconscionable departure by one party (i.e. the
promisor) from subjectmatter of an assumption which
may be of fact or law, present or future, and which
has been adopted by the other party (i.e. the
promisee) as the basis of some course of conduct, act
or omission, should not be allowed to pass muster. It
is further held that promissory estoppel can be the
basis of an independent cause of action in which
detriment does not need to be proved and it is enough
that a party has acted upon the representation made.
The Honourable Supreme Court has further held that
for applying principle of promissory estoppel against
the Government, two conditions are required to be
satisfied i.e. (i) when it would be unconscionable
on the part of Government to get away without
fulfilling its promise and (ii) when no other
consideration of overwhelming public interest exists
in order that Government be justified in resiling
from its promise.
Keeping in view the aforesaid decision rendered
by the Honourable Supreme Court, if the facts of the
present case as discussed hereinabove are examined,
this Court is of the view that the aforesaid decision
would not be applicable to the facts of the present
case. On the contrary, the petitioner was not
agreeable as per the original policy of the State
Government and, therefore, counter offer was made
from time to time and though the possession of the
plots in question was given on 30.03.2010 as observed
hereinabove, the respondent has taken decision in its
Board meeting dated 07.04.2010 to withdraw 25%
concession. The said policy was applicable not only
to the petitioner but as per the case of the
respondents, to various other industrial Companies.
It is specifically stated in the reply by the
respondents that there are six industrial companies
namely, (1) Adani Power Dahej Ltd., (2) Gujarat State
Fertilizer Company, (3) GNFC, (4) SFR Ltd., (5)
Alkalies & Chemicals Ltd. and (6) Action Petrochem
Pvt. Ltd., who were allotted huge industrial plots
without any concession like the petitioner and all
the said Companies have successfully established
their industries. Thus, when the petitioner has not
acted as per the original policy, this Court is of
the view that the aforesaid principle of promissory
estoppel would not be applicable.
9. I have considered the two interim orders passed
by this Court, which are reproduced hereinabove. In
para6 of the order dated 30.07.2012, this Court has
specifically observed that the petitioner as well the
respondents shall maintain statusquo. The petitioner
will not alienate or transfer the property in
question in any manner whatsoever and the petitioner
will make payment of the entire amount as demanded by
the respondents. The allotment, occupancy and
possession of the plot in question, in the hands of
the petitioner, will be subject to final order passed
in this petition. The construction and usage after
and pursuant to and during the pendency of this
petition will not create any right or equity in
favour of the present petitioner.
Thus, from the aforesaid observation, it is
clear that the petitioner was required to make
payment of the entire amount as demanded by the
respondents. However, it is not in dispute that the
petitioner has failed to make any payment even after
the order dated 30.07.2012 to the respondents. Thus,
while considering the case of the petitioner, conduct
of the petitioner is also required to be examined by
this Court.
10. Thus, from the record, it appears that though
the aforesaid order was passed in the year 2012, the
petitioner has not made any payment to the
respondents. On the contrary, it is not in dispute
that the cheques issued by the petitioner were
dishonoured as the petitioner had given instructions
to the concerned Bank to stop the payment. Thus,
while considering the request of the petitioner, this
conduct of the petitioner is also required to be kept
in view.
11. The next contention raised by the learned Senior
Advocate for the petitioner is with regard to the
availment of benefit of OTS Scheme floated by the
respondents on 19.06.2020. If the aforesaid policy is
carefully examined, it is revealed that because of
the condition prevailing in the market pursuant to
the COVID19, OTS Scheme is introduced. As per the
reply filed by the respondents, huge amount of
Rs.166,88,96,985/ is outstanding as on 31.10.2020.
It is also the specific case of the respondents that
during the period between 201112 to 2020, the
respondent GIDC has introduced various OTS Schemes.
However, at no point of time, the petitioner has
applied for the OTS Scheme. Thus, it can be said that
the petitioner had no intention to avail the said OTS
Scheme. At this stage, it is once again pertinent to
note that as per the order dated 30.07.2012, the
petitioner was required to clear outstanding dues at
the relevant point of time. However, the petitioner
has failed to make such payment in spite of the order
passed by this Court. The petitioner has enjoyed the
property in question during these years and now, at
this stage, the request is made to grant benefit of
OTS Scheme introduced in June, 2020. Hence, no
direction can be issued to the respondents to grant
benefit of such scheme to the petitioner.
12. At this stage, this Court would like to refer
the decisions, upon which, reliance is placed by the
learned Senior Advocate for the respondents. In the
case of Nidus Enterprises Pvt. Ltd. Vs. State of
Gujarat (supra), this Court has observed in
Paragraph6 as under:
"6. There is no gainsaying that the dispute and
relief prayed for in the petition falls
primarily and essentially in the realm of
contract and pertains to the enforcement of
contractual obligations. It is trite position of
law that jurisdiction of this Court under
Article 226 which is a writ jurisdiction would
not be exercisable in all ordinary circumstances
in respect of contractual matters. Writ
jurisdiction extends to the issues of violation
of fundamental right and for protection of those
rights. It would be also available where
statutory right is infringed and infringement is
to be remedite by enforcing the same. But
contractual dispute, by their very nature, do
not fall within the purview of writ
jurisdiction. Whether the terms of contract
between two parties are breached or not is
essentially a question of fact. It would require
adjudication. From this standpoint also, they
are neither amenable nor fit for consideration
in the writ jurisdiction. Factual adjudicatory
process is outside the purview of writ powers.
13. In the case of Raj Mineral Through Proprietor
Sharad L. Vyas Through POA Vs. State of Gujarat and
Ors.(supra), the Division Bench of this Court has
held in Paragraph7.5 as under:
"7.5 The powers conferred by Article 226 of the
Constitution of India on the High Courts are
certainly very wide and confer on them
discretion of a most extensive nature. That
discretion, however, must, necessarily be
exercised in accordance with judicial
considerations and well established principles.
The High Court will certainly not hesitate in
issuing an appropriate direction, order or writ
when necessary, but no person can claim to be
entitled to such an order or writ, as a matter
of course, without satisfying the High Court
that the case is suitable one for the issue of
such an order or writ. Thus, mere fact that an
order is without jurisdiction or that, there is
an error apparent on the face of the record, is
not sufficient to justify the issue of a writ.
In addition to that, it must be established that
the order has resulted in manifest injustice. It
is, therefore, open to the High Court to refuse
to issue writ, if it feels that if the writ
prayed for is issued, it will clearly effectuate
an injustice in the case."
14. In the case of The Rajasthan State Industrial
Development and Investment Corporation and Anr. Vs.
Diamond and Gem Development Corporation Ltd. and
Anr. (supra), the Honourable Supreme Court has
observed in Paragraphs14 and 15 as under:
"14. It is evident from the above, that
generally the Court should not exercise its writ
jurisdiction to enforce the contractual
obligation. The primary purpose of a writ of
mandamus, is to protect and establish rights and
to impose a corresponding imperative duty
existing in law. It is designed to promote
justice (ex debito justiceiae). The grant or
refusal of the writ is at the discretion of the
court. The writ cannot be granted unless it is
established that there is an existing legal
right of the applicant, or an existing duty of
the respondent. Thus, the writ does not lie to
create or to establish a legal right, but to
enforce one that is already established. While
dealing with a writ petition, the court must
exercise discretion, taking into consideration a
wide variety of circumstances, interalia, the
facts of the case, the exigency that warrants
such exercise of discretion, the consequences of
grant or refusal of the writ, and the nature and
extent of injury that is likely to ensue by such
grant or refusal.
15. Hence, discretion must be exercised by the
court on grounds of public policy, public
interest and public good. The writ is equitable
in nature and thus, its issuance is governed by
equitable principles. Refusal of relief must be
for reasons which would lead to injustice. The
prime consideration for the issuance of the said
writ is, whether or not substantial justice will
be promoted. Furthermore, while granting such a
writ, the court must make every effort to ensure
from the averments of the writ petition, whether
there exist proper pleadings. In order to
maintain the writ of mandamus, the first and
foremost requirement is that the petition must
not be frivolous, and must be filed in good
faith. Additionally, the applicant must make a
demand which is clear, plain and unambiguous. It
must be made to an officer having the requisite
authority to perform the act demanded.
Furthermore, the authority against whom mandamus
is issued, should have rejected the demand
earlier. Therefore, a demand and its subsequent
refusal, either by words, or by conduct, are
necessary to satisfy the court that the opposite
party is determined to ignore the demand of the
applicant with respect to the enforcement of his
legal right. However, a demand may not be
necessary when the same is manifest from the
facts of the case, that is, when it is an empty
formality, or when it is obvious that the
opposite party would not consider the demand."
15. In the case of Gohil Jesangbhai Raysangbhai Vs.
State of Gujarat (supra), the Honourable Supreme
Court has observed in Paragraphs20 and 21 as under:
"20. These two judgments answer the submission
of the appellants that the amount which is being
charged is not a tax but a fee. It is neither.
It is a premium for granting the sanction. This
is because under this welfare statute these
lands have been permitted to be purchased by the
tenants at a much lesser price. As held in
Shashikant Mohanlal (AIR 1970 Guj 204) (supra),
the tenant is supposed to cultivate the land
personally. It is not to be used for non
agricultural purpose. A benefit is acquired by
the tenant under the scheme of the statute, and
therefore, he must suffer the restrictions which
are also imposed under the same statute. The
idea in insisting upon the premium is also to
make such transfers to nonagricultural purpose
unattractive. The intention of the statute is
reflected in Section 43, and if that is the
intention of the Legislature there is no reason
why the Courts should depart therefrom while
interpreting the provision.
21. It was submitted by the appellants that
assuming that the valuation of the land is
permitted to be done as per the Jantri rates, it
must be so done on the basis of the rates as
prevalent on the date of the application. The
resultant injustice was highlighted in the case
of Savitaben in Civil appeal No.4129/2012. The
fact however, remains that the Section speaks of
previous sanction. As noted earlier, Section
4(2) of the Bombay Paragana and Kulkarni Watans
(Abolition) Act, 1950 also speaks about the
previous sanction. Thus, this is the theme which
runs through all such welfare agricultural
enactments, and a similar provision in the said
Act has been left undisturbed by the bench of
three Judges of this Court. Therefore, the
Jantri rate to be applied will be on the date of
the sanction by the Collector, and not on the
date of the application made by the party."
16. From the aforesaid decisions rendered by the
Honourable Supreme Court, it is clear that generally,
the Court should not exercise its writ jurisdiction
to enforce the contractual obligation. It is designed
to promote justice. The grant or refusal of the writ
is at the discretion of the court. The writ cannot be
granted unless it is established that there is an
existing legal right of the petitioner, or an
existing duty of the respondent. Discretion must be
exercised by the court on the grounds of public
policy, public interest and public good and the writ
is equitable in nature and thus, its issuance is
governed by the equitable principles.
17. Thus, keeping in view the aforesaid decisions,
if the facts of the present case as discussed
hereinabove are examined, this Court is of the view
that looking to the conduct of the petitioner, the
petitioner is not entitled to claim equitable relief
from this Court.
18. In view of the aforesaid discussion and in view
of the overall facts and circumstances of the present
case, the petitioner is not entitled to get the
reliefs as prayed for in the present petition. The
petition is accordingly dismissed. Rule is
discharged. The interim relief, shall stand vacated.
Accordingly, the connected Civil Application also
stands disposed of.
(VIPUL M. PANCHOLI, J)
piyush
After the judgment is pronounced, learned
advocate Mr.N.V. Gandhi appearing for the petitioner
requested that the stay granted by this Court may be
extended for a period of four weeks so that the
petitioner can file an appeal before the Higher
Forum.
The said request is vehemently opposed by
learned Senior Advocate Mr.S.N. Shelat, who is
appearing for respondent Nos.2 to 4.
For reasons recorded in the present order and
looking to the conduct of the present petitioner as
observed in the order, the request made by the
petitioner is rejected.
(VIPUL M. PANCHOLI, J)
piyush
