Gujarat Industrial Development ... vs Dhruv Epc Solutions Pvt Ltd - ...
2021 Latest Caselaw 1266 Guj

C/LPA/973/2016 GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC) LTD v. DHRUV EPC SOLUTIONS PVT LTD -
                      FORMERLY KNOWN AS DHRVU PIPELINE CAV JUDGMENT DT.28.01.2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 973 of 2016
                              In
        R/SPECIAL CIVIL APPLICATION NO. 12391 of 2013
                             With
          CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
                              In
           R/LETTERS PATENT APPEAL NO. 973 of 2016
                             With
     CIVIL APPLICATION (FOR VACATING STAY) NO. 1 of 2017
                               In
           R/LETTERS PATENT APPEAL NO. 973 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI

and
HONOURABLE MS. JUSTICE GITA GOPI

==============================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2    To be referred to the Reporter or not ?                                             Yes

3    Whether their Lordships wish to see the fair copy of                                No
     the judgment ?

4    Whether this case involves a substantial question of                                No

law as to the interpretation of the Constitution of India or any order made thereunder ?

============================================================== GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC) LTD Versus DHRUV EPC SOLUTIONS PVT LTD - FORMERLY KNOWN AS DHRVU PIPELINE ============================================================== Appearance:

MR R.R. MARSHAL SENIOR ADVCOATE WITH MR RD DAVE(264) for

MR RV DESHMUKH(300) for the Respondent(s) No. 1 ==============================================================

C/LPA/973/2016 GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC) LTD v. DHRUV EPC SOLUTIONS PVT LTD -

FORMERLY KNOWN AS DHRVU PIPELINE CAV JUDGMENT DT.28.01.2021

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI

Date : 28/01/2021

CAV JUDGMENT (PER : HONOURABLE MS. JUSTICE GITA GOPI)

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

C/LPA/973/2016 GUJARAT INDUSTRIAL DEVELOPMENT CORPORATION (GIDC) LTD v. DHRUV EPC SOLUTIONS PVT LTD -

FORMERLY KNOWN AS DHRVU PIPELINE CAV JUDGMENT DT.28.01.2021

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

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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

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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.

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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,

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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

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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

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FORMERLY KNOWN AS DHRVU PIPELINE CAV JUDGMENT DT.28.01.2021

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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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-allotment letter to decide as to what terms and conditions

should be incorporated. If the State or its instrumentality acts contrary to

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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,

reported in (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

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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

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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.

(DR. VINEET KOTHARI, J.)

(GITA GOPI, J.) Pankaj