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 HC-NIC Page 1 of 5 Created On Tue Nov 28 00:28:11 IST 2017 SCA/3238/2011 2/5 ORDER 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. D-II/12A, D-II/13 & D-II/4 Dehej-II 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 HC-NIC Page 2 of 5 Created On Tue Nov 28 00:28:11 IST 2017 SCA/3238/2011 3/5 ORDER 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 Annexure-AA 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 9 th March 2011 the below mentioned order was passed:-
"On condition that the parties will maintain status-quo, 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 HC-NIC Page 3 of 5 Created On Tue Nov 28 00:28:11 IST 2017 SCA/3238/2011 4/5 ORDER 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 status-quo. 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.