Gujarat High Court
Rajendra Jain Prop. Of Jain Corporation vs State Of Gujarat on 1 April, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/9918/2013 ORDER DATED: 01/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9918 of 2013
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RAJENDRA JAIN PROP. OF JAIN CORPORATION
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR PAVAN S GODIAWALA(2936) for the Petitioner(s) No. 1
MR. JAIMIN R DAVE(7022) for the Petitioner(s) No. 1
MR.ISHAN JOSHI, AGP for the Respondent(s) No. 1
MR RUTVIJ M BHATT(2697) for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/04/2022
ORAL ORDER
1. The present writ application has been filed under Article 226 of the Constitution of India, seeking the following reliefs:-
"A. The Hon'ble Court would be pleased to issue writ of mandamus or such other writ quashing and setting aside the impugned communication no.GIDC/DM/(CG)/ANK/ALT/245 dated 30.01.2013 at Exh-'J' and further direct the respondent nos.2 and 3 to issue possession letter by handling over the plot no.910/2 and accept the residual payment;
B. Pending hearing and final disposal of the Page 1 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 petition, the Hon'ble Court would be pleased to stay the impugned communication and restrained the respondents, their agents, servants, representatives to allot the plot no.910/2 to any third party or take any coercive action as contemplated in the impugned communication pursuant to the alleged closure of the application of the petitioner and further restrain the respondent not to allot and undertake any process of allotting the plot no.910/2 to any third party or invite offer;
C. Ex-parte ad-interim relief in terms of prayer B be allowed;
D. Such other and further orders as this Hon'ble Court deed fit and proper in the interest of justice."
2. The brief facts as stated by the petitioner for adjudication of the present writ application are summarised thus:-
2.1 The petitioner applied for allotment of plot at Jagadia Estate of respondent no.3, situated at Ankleshwar, District Bharuch on 15.06.2010. Considering the application preferred Page 2 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 by the petitioner on 15.06.2010, on 18.03.2011, the allotment of plot no.910/2 came to be granted to the petitioner by the respondent GIDC pertaining to offer-cum-allotment for Rs.600/- of Plot no.910/2 at Jhagadia Industrial Estate. The petitioner initially made down payment of Rs.1,30,35,600/- and hence total premium price of Rs.4,20,00,000/- i.e. the cost of the plot in addition the frontage charge of Rs.30/- 5% of allotment charge for 48400 sq.mtrs, which aggregated to Rs.14,52,000/- and hence total amount is to be paid Rs.4,34,52,000/- and receipt of the allotment letter dated 10.04.2011 issued by the GIDC. The petitioner made down payment of Rs.1,30,35,600/- by RTGS on 09.06.2011 and receipt thereof came to be issued by the GIDC. On 24.06.2011, the petitioner communicated to GIDC about sending of the payment through 2 RTGS pertaining to interest amount of Rs.7,84,550/- as delayed interest payment and administrative charges of Rs.3,35,493/- and requested to send stamped receipt for the total payment and also Page 3 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 requested to send copy of agreement. However, payment made for installment of Rs.24,77,335/-
and for the penal interest of Rs.75,058/- came to be made on 05.08.2011 and receipt for the administrative charges and education cess of Rs.3,35,493/- came to be issued on 30.06.2011 and first post dated cheque came to be cleared. Vide Communication dated 16.08.2011, the GIDC increased rate to Rs.780/- and total demand of Rs.5,64,87,600/-. The petitioner replied to GIDC to withdraw such new offer and requested to issue possession letter to enable to the petitioner to commence construction work for production activities by Communication dated 05.09.2011. 2.2 By Communication dated 17.08.2011, the GIDC issued account as of 21.07.2012 to pay installment upto 21.07.2012 for Rs.1,73,99,866/- including delayed payment with penal interest at 3% and other charges. The petitioner wrote a letter dated 05.11.2012 to GIDC referring letter of GIDC and earlier communication of petitioner Page 4 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 and stated that the GIDC did not reply and on the other hand deposited cheque without informing the petitioner and without issuing possession letter in favour of the petitioner. The respondent GIDC by the impugned Communication dated 30.01.2013, treated the application of the petitioner for allotment of plot in favour of the petitioner as closed. The petitoner by preferring a representation approached the authority seeking fresh allotment @ Rs.600/- on 18.03.2011 and more particularly, in view of the fact that the cheque of Rs.25,71,393.00/-, which was deposited by the petitioner on 05.08.2011 was accepted by the respondent GIDC and receipt thereof was not issued to the petitioner.
2.3 Being aggrieved and dissatisfied by the Communication dated 30.01.2013, the petitioner approached this Court by filing present petition. 2.4 The Coordinate Bench of this Court issued notice making it returnable on 10.07.2013. Page 5 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022
C/SCA/9918/2013 ORDER DATED: 01/04/2022 writ application.
2.5 By the interim order dated 08.08.2018, the petitioner was directed to pay amount @ Rs.780/- per Sq.mtr with 6% interest per annum from 01.04.2011 till the date with the respondent GIDC within four weeks from the date of order and on non-payment of the said amount, the corporation was at liberty to dispose of the said plot in accordance with law.
2.6 In due compliance of the order dated 08.08.2018, the petitioner deposited the said amount with the respondent GIDC. The petitioner further preferred Civil Application No.2 of 2018 seeking extension of time for depositing the said amount. The Coordinate Bench by the order dated 12.09.2018 passed in Civil Application No.2 of 2018, extended time for depositing amount by two weeks. Both the orders dated 08.08.2018 and 12.09.2018 are duly complied with by the petitioner and entire amount came to be deposited Page 6 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 in accordance with directions issued by the Coordinate Bench. The calculation sheet to the said effect is reproduced hereunder:-
CALCULATION SHEET PLOT NO. 910/2, JHAGADIA INDUSTRIAL ESTATE, ANKLESHWAR TOTAL AREA ALLOTTED IN MARCH 2011 : 70,000 Sq Mtr RATE PER SQ MTR AS PER HIGH COURT ORDER DATED 08-Aug-
: Rs.780/-2018
TOTAL PRINCIPAL AMOUNT (Rs.780 x 70,000 Sq. Mtr) : Rs. 5,46,00,000/- TOTAL INTEREST AMOUNT (From 01-Apr-2011 to 08-Aug-2018) : Rs. 1,69,04,918/- TOTAL PLOT AMOUNT WITH INTEREST @ 6% : Rs. 7,15,04,918/-
PA
PRINCIPAL AMOUNT CALCULATIONS
DATE PARTICULARS DEBIT CREDIT
Total Principal Amount
18-Mar-11 - 5,46,00,000.00
(Rs.780 x 70,000 Sq. Mtr)
Advance Paid via RTGS
30-Jun-11 1,30,35,600.00 -
GIDC Receipt No. 695095
Advance Paid via RTGS
30-Jun-11 3,35,493.0 -
GIDC Receipt No. 695102
Advance Paid via RTGS
30-Jun-11 7,84,550.00 -
GIDC Receipt No. 695103
First PDC (SBI Chq. No.
5-Aug-11 599541 dated 30-Jun-2011) 25,71,393.00 -
GIDC Receipt No. 697661
Amount Paid vide NEFT
with
26-Jul-18 2,00,00,000.00 -
UTR No.
SBIN118207533581
Amount Paid vide RTGS
with
5-Sep-18 1,14,00,000.00 -
UTR No.
SBINR52018090500061338
TOTAL : 4,81,27,036.00 5,46,00,000.00
BALANCE PAYABLE : 64,72,964.00 -
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C/SCA/9918/2013 ORDER DATED: 01/04/2022
Rs. 4,81,27,036/-
TOTAL AMOUNT PAID AS ON 05-Sept-2018 BALANCE PAYABLE:
: Rs. 64,72,964/-
PRINCIPAL AMOUNT BALANCE : Rs. 1,69,04,918/-
INTEREST PAYABLE AT 6% PA AS PER CALCULATIONS : Rs. 2,33,77,882/-
TOTAL BALANCE DUE
INTEREST CALCULATIONS
DATE PARTICULARS CREDIT
Interest at 6% pa on Rs.5,46,00,000.00 29-Jun-11 7,98,805.48 from 01-Apr-2011 to 29-Jun-2011 Interest at 6% pa on Rs.4,04,44,357.00 4-Aug-11 2,32,693.56 from 01-Jul-2011 to 04-Aug-2011 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-12 14,87,940.56 from 06-Aug-2011 to 31-Mar-2012 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-13 22,72,377.84 for Financial Year 2012-13 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-14 22,72,377.84 for Financial Year 2013-14 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-15 22,72,377.84 for Financial Year 2014-15 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-16 22,72,377.84 for Financial Year 2015-16 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-17 22,72,377.84 for Financial Year 2016-17 Interest at 6% pa on Rs.3,78,72,964.00 31-Mar-18 22,72,377.84 for Financial Year 2017-18 Interest at 6% pa on Rs.3,78,72,964.00 25-Jul-18 7,15,954.66 from 01-Apr-2018 to 25-Jul-2018 Interest at 6% pa on Rs.1,78,72,964.00 8-Aug-18 35,256.26 from 27-Jul-2018 to 08-Aug-2018 TOTAL INTEREST ACCUMULATED : 1,69,04,918.00
3. Learned advocate Mr.Pavan Godiawala appearing on behalf of the petitioner by way of further affidavit dated 07.09.2018 has brought on record the layout as given in 2018 by GIDC itself Page 8 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 to the petitioner, wherein it is depicted that the area is 63300 sq.mtrs for plot no.910/2.
4. Heard the learned advocate Mr.Pavan Godiawala appearing for the petitioner, learned AGP Mr.Ishan Joshi appearing on behalf of the respondent State and learned advocate Mr.Rutvij Bhatt appearing for the respondent no.2.
5. Learned advocate Mr.Godiawala appearing for the petitioner submitted that the entire amount has been deposited by the petitioner in accordance with offer-cum-allotment letter dated 18.03.2011 and order passed by this Court from time to time, more particularly, order dated 08.08.2018 and 12.09.2018. Mr.Godiawala further submitted that the contract stands fulfilled and therefore the respondent authority be directed to issue possession letter with respect to plot no.910/2 as the payment is made to the tune of 70,000 sq.mtrs and the entire payment of Rs.7,15,04,918/- has been duly made way back in Page 9 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 the year 2018 and having accepted the payment by GIDC, there is not reason to delay in allotment of the said plot to the petitioner.
6. Per contra, learned advocate Mr.Rutvij Bhatt appearing for the respondent GIDC relying on the affidavit dated 21.10.2021, submitted that the said amount paid by the petitioner was required to be paid on completion of 30 days of the initial period of allotment i.e. after allotment on 18.03.2011, since the conditions as stated in the allotment letter were not fulfilled by the petitioner, the allotment stood automatically cancelled. He further submitted that even as per the policy of GIDC for saturated estate all files of allotment were treated closed from 01.04.2016 and inspite of extensions, which were given by the Hon'ble Court, the petitioner has not deposited the substantial sum of more than crores of rupees as payable by the petitioner. He further submitted that the said plot has remained unutilised since last 10 years Page 10 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 and genuine industries suffered because of pendency of the present litigation. 6.1 Learned advocate Mr.Bhatt submitted that in view of the circular of 2016 relating to saturated areas, the file pertaining to allotment was treated as closed and cancelled on account of the fact that the petitioner failed to deposit the amount, and therefore the respondent GIDC has liberty to cancel the allotment of said plot. 6.2 He lastly submitted that therefore the present petition be not entertained and be rejected.
7. Heard the learned advocates for the respective parties.
8. The petitioner preferred an application for allotment of plot at Jhagadia Estate situated at Ankleshwar, District Bharuch on 15.06.2010 and the said plot came to be allotted to the Page 11 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 petitioner on 18.03.2011 by way of offer-cum-
allotment, which is duly produced at Page 13. It appears that the petitioner could not make payment as per schedule and sought for extension of time for making payment. The petitioner made down payment to the tune of Rs.1,30,35,600/-. The petitioner made further payment by installment of Rs.24,77,335/- and for the penal interest of Rs.75,058/- as made on 05.08.2011 and the respondent GIDC issued the receipt to the petitioner for the same. By the Communication dated 16.08.2011, the respondent GIDC sought for payment of Rs.5,64,87,600/-.
9. The petitioner replied to GIDC to withdraw such new offer and requested to issue possession letter to enable to start construction work for production activities. On 17.08.2011, the GIDC issued account as of 21.07.2012 to pay installment upto 21.07.2012 for Rs.1,73,99,866/- including delayed payment with penal interest at 3% other charges. On 05.11.2012, the petitioner Page 12 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 wrote a letter to GIDC referring to the earlier communication and requested the GIDC to issue fresh possession letter @ Rs.600/-. In view of the fact that earlier cheques deposited by the petitioner were received by the GIDC and receipts thereof were issued by the respondent GIDC. By Communication dated 30.01.2013, the respondent GIDC treated the application of the petitioner for allotment of plot no.910/2 as closed. The petitioner also preferred representation to the GIDC on 16.03.2013 with a request to reconsider the order passed by the GIDC cancelling allotment dated 13.01.2013. Pursuant thereto the petitioner is constrained to approach this Court by filing the present petition.
10. The petitioner entered into various communications with the respondent GIDC and eventually, the petitioner has filed the present petition in the year 2013.
11. By the order dated 08.08.2018, the Page 13 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 Coordinate Bench passed the interim order directing the petitioner to make payment to respondent GIDC at revised rate i.e. Rs.780/- per sq.mtrs and 6% interest per annum from 01.04.2011 till the date. The order dated 08.08.2018, reads thus:-
"1. Heard learned Advocates appearing for the parties. Rulereturnable after six weeks.
2. It appears that after the original allotment of the plot in question bearing No. 910/2 made by the respondent Corporation to the petitioner vide letter dated 18.03.2011, the petitioner had sought extension of time vide letter dated 20.04.2011. Ofcourse, the said letter is not on record, however it has been referred by the respondent in the letter dated 30.01.2013 [Annexure J]. Be that as it may, the petitioner indisputably had made payment of about Rs. 1,67,00,000/ through RTGS on 09.06.2011 and thereafter also made payment towards interest on the delayed payment, administrative charges, security charges, etc,. vide receipts dated 30.06.2011. However, the respondent corporation vide letter dated 16.08.2011 made Page 14 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 a fresh offer cum allotment for the plot in question to the petitioner at the rate of Rs. 780 per sq. mts. without canceling the earlier offer cum allotment. The petitioner therefore kept on making representations to allot the plot at the original rate only, however there was no response from the respondent Corporation. Ultimately, vide the impugned letter dated 30.01.2013, the petitioner was informed that his application for allotment of plot was treated as closed. The petitioner therefore, has challenged the said communication by the present petition filed in April, 2013.
3. During the course of arguments, the Court had directed the learned Advocate appearing for the petitioner to take instructions if the petitioner was ready to deposit the amount at the revised rate of Rs. 780 per sq. mts. with interest at the rate of 6% per annum. The learned Advocate Mr. Pavan S Godiawala appearing for the petitioner today states that the petitioner is ready to make such payment. The learned Advocate Mr. Rutvij Bhatt appearing for the respondent vehemently submits that the petitioner having not deposited the amount within the stipulated time, and now the rates having Page 15 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 been further revised, such payment could not be accepted.
4. Having regard to the submissions made by the learned Advocates appearing for the parties and to the documents on record, it appears that after the original offer cum allotment made to the petitioner on 18.03.2011 (Annexure A) at the rate of Rs. 600/ per sq. mts. the rates were revised at Rs. 780/ per sq. mts. with effect form 01.04.2011, nonetheless the respondent Corporation had accepted the payments from the petitioner in June, 2011, as per the original offer including the amount of interest on delayed payment and administrative charges, etc,. It is also pertinent to note that the respondent Corporation did not take any decision for a period of about one and half years and it was only in January, 2013, the petitioner was informed that his allotment has been treated as closed.
5. Today, since the petitioner has shown his willingness to deposit the entire amount at the revised rate with interest, it is directed that the petitioner shall deposit the said amount at the rate of Rs. 780 per Page 16 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 sq. mts. with interest at the rate of 6% per annum from 01.04.2011 till this date with the respondent Corporation within four weeks from today. If the petitioner makes such payment as directed, appropriate orders shall be passed thereafter in respect of the plot in question. However if the petitioner fails to deposit the said amount, the respondent Corporation shall be at liberty to dispose of the plot in question in accordance with law."
12. Since the petitioner was not able to make entire payment till 08.08.2018, the petitioner preferred Civil Application No.2 of 2018 seeking extension of time to make payment and by the order dated 12.09.2018, the Coordinate Bench granted time for two weeks to make payment. Para 5 of the said order reads thus:-
"5. This Court notices that for the first time this contention has been raised on the part of the applicant-petitioner. The amount since was directed to be paid on 08.08.2018 within a period of four weeks and as the applicant has been in a position to pay the total amount of Rs.4,81,27,036/- upto Page 17 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 05.09.2018. Let the remaining balance amount as has been directed in the order dated 08.08.2018 be plaid within a period of two weeks from today. The amount be paid on or before 25.09.2018, no further extension shall be granted.
13. In due compliance of the order dated 12.09.2018 passed in Civil Application No.2 of 2018, the petitioner made entire payment to the respondent GIDC.
14. This Court has considered the submissions advanced by the learned advocates for the respective parties and the interim orders dated 08.08.2018 and 12.09.2018. The petitioner pursuant to the orders dated 08.08.2018 and 12.09.2018, deposited the entire amount of Rs.7,50,04,918/- @ 6% interest per annum as back in the year 2018. The said orders were passed by parte and the respondent GIDC has been duly represented through advocate.
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15. The submissions advanced by the learned advocate for the respondent GIDC that the circular relating to saturated area, the petitioner was required to deposit the said amount within a period of 30 days from initial period of allotment of 13.03.2011 and since the said condition was not fulfilled, the allotment stood cancelled automatically. It is further submitted that as per the policy of GIDC for saturated estate, all files of allotments were treated closed from 01.04.2016 and that the said amount which is deposited by the petitioner cannot be considered for the purpose of allotment. The above submissions advanced by the learned advocate appearing for the respondent herein does not appeal to this Court. In view of the fact that by the order dated 08.08.2018 and 12.09.2018 time for payment of outstanding amount came to be extended and the petitioner was directed to deposit the outstanding amount and consequently, the respondent GIDC is bound to allot the plot no.910/2 ad measuring 70,000 sq. Page 19 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 mtrs to the petitioner.
16. Further the respondent GIDC has accepted the amount in accordance with the orders dated 08.08.2018 and 12.09.2018 and accordingly, the equities are created in favour of the petitioner. It is not even the case of the respondent GIDC that the entire payment has not been done by the petitioner as directed.
17. This Court is inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India and accordingly, the impugned order dated 30.01.2013 treating the application of the petitioner as cancelled for allotment of Plot No.910/2, which is duly produced at Annexure 'J' passed by the GIDC, is quashed and set aside.
18. This Court is of the view that in view of the fact that the entire amount has been deposited by the petitioner in accordance with Page 20 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022 C/SCA/9918/2013 ORDER DATED: 01/04/2022 the conditions of the allotment letter dated 18.03.2011 and in due compliance of the interim orders dated 08.08.2018 and 12.09.2018, the respondent GIDC is directed to take into consideration the amount of Rs.7,50,04,918/-, which has been deposited by the petitioner and the respondent GIDC is directed to grant/allot the plot no.910/2 to the petitioner.
18. Accordingly, the writ application succeeds and the same is allowed to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) NABILA Page 21 of 21 Downloaded on : Sat Dec 24 14:03:40 IST 2022