IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8570 of 2011
For Approval and Signature:
HONOURABLE MR. JUSTICE K. M. THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question 4 of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KHANDHA TRADING CORPORATION POA OF MOHAMMED HAJI ABDUL -
Petitioner(s) Versus
GENERAL MANAGER (MARKETING SALES) & 2 - Respondent(s)
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Appearance :
MS ANUJA S NANAVATI for Petitioner(s) : 1, MR MB GANDHI for Respondent(s) : 1 - 2.
MR CHINMAY M GANDHI for Respondent(s) : 1 - 2. MR ROHAN YAGNIK AGP for Respondent(s) : 3, NOTICE SERVED for Respondent(s) : 3, NOTICE SERVED BY DS for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER
Date : 20/07/2012
ORAL JUDGMENT
1. Heard Mr. S.I. Nanavati, learned Senior Advocate with Mr. Saurabh Mehta learned advocate for the petitioner and Mr. Gandhi, leaned advocate for the respondent Corporation.
2. After adjourning the petition on couple of occasions at the request of learned advocate for the petitioner as well as learned advocate for the respondent, the learned advocates have been heard, at length at least on 3 occasions and submissions have been made by learned advocate for the petitioner as well as learned advocate for the respondent considering the hearing as hearing for final decision.
3. Having regard to the submissions and facts emerging from the petition, the matter requires consideration. Rule. In view of the fact that the learned advocates for the contesting parties have made submissions at length, treating the hearing as final hearing for final decision, Rule is returnable forthwith. Learned advocate for the respondent – Corporation has waived service of Notice of Rule. With consent of the learned advocates for the contesting parties, petition is heard for decision today.
4. The petitioner has prayed for below mentioned relief/s:-
“8.(A) Your Lordships may be pleased to issue a writ of mandamus or any other writ, order of direction in the nature of mandamus quashing and setting aside the action of the respondent for not granting approval for construction of way bridge in plot No.311/A sold to the present petitioner and further be pleased to direct the respondents, their servants, agents and subordinates to allow and permit the present petitioner to construct way bridge in plot No.311/A sold to the present petitioner without any hindrances.
(B)..........
(C) ”
5. In order to appreciate and consider the relief prayed for by the petitioner it is appropriate and necessary to take into account relevant facts.
5.1 It emerges from the record and from the submission by learned advocate for the contesting parties that somewhere in November 2009, the respondent Corporation had published an advertisement inviting bids for auction of commercial / industrial plot and shades.
5.2 The last date for submitting bids was 7.12.2009. The petitioner had submitted its application / bid in response to the said advertisement and had also deposited a sum of Rs.33,413/-. The petitioner has claimed that in its application it had clarified that bid was made for the plot No. 311/A to construct way bridge. After auction process the petitioner's bide for Rs.8,55,000/- emerged as the highest bid for plot No.311/A.
5.3 According to the advertisement the said plot No.311/A was put in the category of “commercial plot”.
5.4 The said aspect emerges from the document at page 13-A (relevant page No.13-B).
5.5 A copy of the petitioner's application is placed on record at Annexure-C page 14.
5.6 On perusal of the said application it emerges that the petitioner had applied for plot No.311/A considering the stipulation by the respondent corporation that plot was put in the category of commercial plot.
6. The respondent Corporation accepted the offer of the petitioner and in acknowledgment of acceptance of petitioner's offer, the respondent Corporation issued letter of allotment dated 23.2.2010.
6.1 In the said letter of allotment the subject is described thus:-
“Offer – cum – Allotment of comm. plot No.311/A in Junagadh-II Industrial Estate”
6.2 The plot is described as plot No.311/A admeasuring about 297.00 sq. mtrs.
Clause 4 of the said allotment letter reads thus:-
“4. The plot is offered on “As is where is basis” for the purpose of Way-Bridge and there is no scope of change in fixed price of offered plot (we are enclosing herewith the form of agreement in triplicate which you please execute this agreement in our presence but you could execute it and send it by post)”
7. It is also relevant to take into account clause No.10 of the said allotment which reads thus:-
“10. Plot is allotted on “As is where is basis” for the purpose of Way Bridge industries and there is no scope of reduction in the allotment price.””
8. A glance at clause 4 and clause 10 make it clear that the respondent corporation had allotted the said plot No.311/A on “as is where is basis” for the purpose of way bridge.
9. The petitioner has claimed that on the same date the petitioner also deposited balance amount i.e. sale consideration / auction price of Rs.8,21,500/-.
9.1 The petitioner has also claimed that in view of the payment of sale consideration / auction price the respondent corporation forwarded the contract to the petitioner under its letter dated 8.4.2010. A copy of the said contract / agreement is placed on record at annexure-F page 28.
9.2 A glance of the said contract / agreement also reflects that plot is described as commercial plot No.311/A.
9.3 The petitioner has claimed that so as to put up construction it was necessary for the petitioner to get the plan approved from the competent authority. Therefore, petitioner had addressed letter to the respondent to supply “sketch of plot” No.311/A along with exact measurement and specification.
9.4 The petitioner has also claimed that having regard to the size of the plot vis-a-vis the requirement for the purpose of way bridge, petitioner found that there would be some more space available where the petitioner can construct go-down / warehouse. Therefore, the petitioner also requested respondent corporation to grant permission to the petitioner for construction of go-down / warehouse on the open space which would remain available on the plot No.311/A after construction of way bridge.
9.5 The said request of the petitioner was not responded by the respondent therefore petitioner pursued the request by forwarding another request vide letter dated 21.5.2010.
10. Even after the said second request dated 21.5.2010 the petitioner did not receive any approval from the respondent either in connection with the request for the details so as to prepare and submit the plan for construction of way bridge. Therefore petitioner forwarded Notice dated 15.1.2011.
10.1 The petitioner has claimed that subsequently respondent Corporation declined to grant approval to the petitioner not only for construction of warehouse but also declined permission / approval to the petitioner for construction of way bridge, though the plot was sold to the petitioner, in auction process, for the said purpose and possession was also handed over for the said purpose.
10.2 The said decision was conveyed to the petitioner on 26.5.2011.
10.3 Aggrieved by the said decision the petitioner has taken out present petition.
11. The respondent corporation has resisted the petition and filed reply affidavit. The crux of the submission of the defence raised by the respondent is that the plot is reserved for the purpose of “Canteen” and therefore approval has not been granted. The respondent has stated, in the reply affidavit, that:-
“3. The petitioner is estopped from raising all pleas and therefore the petition is liable to be dismissed on that count. Without going into the contents of the petition, I say and submit that the GIDC had already developed the estate at Junagadh and according to the approved plan / developed plan, the disputed land bearing plot No.311/A had been originally reserved for canteen. That the said plot was to be given on lease and, therefore, offers were invited and the plot was to be given on lease and, therefore, offers were invited and the plot was for the said object and therefore, in the advertisement it was stated that the land is to be sold on 'as is where is' basis. Even in the letter Annexure-A dated 21.05.2010 it is stated in the subject of commercial (canteen) plot No.311/A. That after the auction the present petitioner had made representation dated 21.05.2010 in connection with the said plot and he had made an application for the purpose of change in the object and to that application dated 21.05.2010 the present deponent had replied and that reply is produced at Annexure-A page-12 to the petition and in the said reply it was stated that the petitioner wanted to make change in the use of the plot from canteen to that of weigh bridge / warehouse and permission which was sought for, was rejected. Prior to that the very petitioner had also made an application to the GIDC dated 14.05.2010 and it is stated by the petitioner himself while addressing the letter to the Regional Manager that, the plot which is purchased by the petitioner is situated in the GIDC Estated No.2 and in the auction of the plot it was stated as 'canteen', which is purchased by the petitioner. But he mad a representation to the effect that in the tender form there are different objects being stated of the commercial use and therefore, he wanted a permission for development and construction on the land as per the rules and regulations of the corporation and he wanted consent from the GIDC. A copy of the said letter is hereto annexed and marked as ANNEXURE-R1. Similarily, as aforesaid, the development plan whereby the plot No. 311/A is reserved for canteen, that extract of the development plan is hereto annexed and marked as ANNEXURE-R2. It is also further submitted that on page-25A whereby the offer cum allotment of commercial plot by auction for which a letter was written, in that letter dated 23.02.2010 it was stated in the column of commercial plot No.311/A for canteen. Therefore, the present petitioner was very much in know of the fact that he had to use the land for the purpose for which it is reserved namely, canteen purpose and though canteen may be a commercial purpose, when reserved for specific purpose, he had to carry on that purpose and the question of conversion of the same or giving permission for another use, does not arise. It is submitted that the present petitioner in reference to Annexure-A to the petition had made an application of the even dated i.e. 21.05.2010 and that application is also produced on the record at page-41A from which it reflects that the petitioner wanted to make change in the use from canteen to warehouse and therefore, the application was made.”
12. So as to support the said defence the respondent corporation has relied on the document which appears to be the layout of the Industrial Estate where the plots including plot No. 311/A are situated.
12.1 It is pertinent that any decision (from record / on the file) other than the said lay-out – is not placed on record to demonstrate that prior to advertisement the plot was reserved. The corporation has also not raised plea of bonafide mistake in not clarifying the said aspect in the advertisement and in putting-up the plot for auction though it was, allegedly, reserved.
13. Mr. Nanavati learned Senior Advocate for the petitioner has submitted that once having advertised the plot in category of commercial plot and after having received / accepted and entertained the petitioner's application for the said plot for the purpose of way bridge and after having accepted the petitioner's bid (being highest bid) and after having even executed the agreement / contract, the respondent corporation is now not justified in refusing to grant to permission to the petitioner for construction of way bridge.
13.1 To support his submission learned Senior Advocate for the petitioner has relied on annexure- B, pages 13/A and 13/B where the plot No.311/A is described as commercial plot.
13.2 The petitioner has also relied on the document at annexure-C page 14.
13.3 The petitioner had, at the outset, while submitting its bid, clarified that petitioner was seeking the said plot “in category of commercial plot”.
13.4 Reliance is placed by the petitioner on documents at page 20 wherein way bridge is recognized as one of the purpose falling under category of “commercial purpose” as per the categorization made by the respondent corporation.
13.5 Above all other material / document and details, learned advocate for the petitioner has heavily relied on clause (iv) and clause (x) of the document at pages 22 to 25 which clearly give out that the plot was alloted to the petitioner for purpose of way bridge.
13.6 In light of the said documents, including document at page 26 annexure-F, learned advocate for petitioner has submitted that the respondent corporation is now estopped from declining use of the plot by refusing approval to the petitioner for construction of way bridge.
14. Learned advocate for the petitioner further submitted that it is true that at one point of time petitioner requested for additional permission as well i.e. for construction of go- down /warehouse on the said plot. However petitioner does not insist for said request and the respondent corporation ought to have approved the plan and granted its permission at least for construction of way bridge. It is claimed that the respondent is not justified in declining approval / permission even for the purpose of construction of way bridge.
15. Learned advocate for the respondent Corporation could not dispute the fact that in the advertisement the respondent corporation had not declared that the plot was reserved only for “Canteen”.
15.1 He also could not reply or explain the querry that if the plot was actually reserved then why was it put-up for sale / lease and why was offered for lease / sale for any commercial purpose i.e. for any purpose out of the various purpose included under the “commercial category”.
15.2 He could also not dispute the fact that the petitioner had made application with appropriate clarification and had made bid for the plot in question for construction of way bridge and by virtue of the document dated 23.2.2010, particularly clause (iv) and clause (x) of the said document the respondent Corporation allotted the said plot to the petitioner on “as is where is basis”for purpose of construction of way bridge.
16. Having regard to the facts and circumstances of the case and particularly the document dated 23.2.2010 it is now not open to the respondent Corporation to deny permission to the petitioner to construct way bridge.
16.1 If at all the plot was reserved for any other purpose, as is now claimed by the respondent corporation, then the said aspect ought to have been made clear in the advertisement itself. On consideration of advertisement it becomes clear that the respondent corporation never clarified that the plot in question was reserved for a particular purpose and it would be offered only for such purpose.
16.2 Not only the respondent corporation did not declare and clarify the said aspect in the advertisement, the respondent corporation accepted the petitioner's bid (being highest bid) for the said plot No. 311/A knowing very well that the bid was made for purpose of construction of way bridge and that therefore respondent corporation is now estopped from refusing approval for said purpose to the petitioner.
16.3 Undoubtedly petitioner's request for construction of warehouse in the open / balance space could not have been accepted by the respondent corporation and the respondent corporation is completely justified in declining such request.
16.4 However, at the same time, the respondent corporation is not justified in declining petitioner's request for approval of plan and for permission for construction of way bridge for which the plot came to be allotted / sold in public auction to the petitioner and sale consideration for said plot has been paid and received by the respondent corporation.
16.5 It is pertinent that even at the time of receiving the payment, the respondent corporation did not clarify the said aspect.
16.6 On the contrary in the contract document @ clause 4 and clause 10 the purpose if clearly mentioned as way bridge.
16.7 After long time since the date of advertisement and the conclusion of auction proceedings and after long time after having accepted the amount and executing the contract, the respondent has come out with such defence which is not sustainable.
16.8 At any earlier point of time prior to the said communication the respondent Corporation had never declared that the plot was reserved only for “Cabeen” purpose.
16.9 Even at the time of handing over possession of the plot in question the respondent corporation did not declare that the plot has reserved for other purpose.
17. The action and decision of the respondent corporation being contrary to the advertisement and contrary to the contract / agreement already executed by it and also contrary to the declaration made in the advertisement is unjustified and unsustainable. After having put up the plot for auction for any and every purpose, recognized as commercial purpose the respondent corporation cannot now deny its permission / approval to the petitioner to construct the way bridge, in view of clause (iv) and (x) of the document dated 23.2.2010.
18. For the foregoing discussion and reasons, the impugned decision of the respondent corporation is set aside. However, with clarification that if the petitioner uses the said plot No.311/A for any purpose other than way bridge then it will be open to the respondent corporation to take appropriate action in accordance with law, including cancellation of the agreement.
The petition is allowed to the aforesaid extent. Rule is made absolute to that extent.
Suresh* (K.M.THAKER,J.)