Andhra HC (Pre-Telangana)
Ms/. Puravankara Projects Limited, ... vs The State Of Andhra Pradesh, Rep. By ... on 5 March, 2013
Bench: Pinaki Chandra Ghose, Vilas V. Afzulpurkar
THE HON'BLE CHIEF JUSTICE PINAKI CHANDRA GHOSE AND THE HON'BLE MR JUSTICE JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.1407 of 2012 05.03.2013 Ms/. Puravankara Projects Limited, Bangalore and another. The State of Andhra Pradesh, Rep. by Infrastructure and Investment Department, Secretariat, Hyderabad and another. Counsel for the Appellants: MR. S.K. KAPUR For MR. CH. PUSHYAM KIRAN Counsel for the Respondents: ADVOCATE GENERAL For MR. B.P. MOHAN(SC FOR APIIC) GP FOR INDUS. & COMMERCE <GIST: >HEAD NOTE: ?Cases referred 1. (2004) 3 SCC 553 2. (2010) 11 SCC 186 3. (2007) 8 SCC 1 4. (2009) 16 SCC 208 5. (1991) 1 SCC 1 6. (2006) 1 SCC 751 7. (2010) 13 SCC 158 8. (2010) 1 SCC 655 The Court made the following: JUDGMENT:
(Per Hon'ble Sri Justice Vilas V. Afzulpurkar) The unsuccessful petitioner is in appeal against the order of the learned single Judge dated 12.03.2012 whereby WP.No.27133 of 2009, filed by the petitioner, was dismissed primarily on the ground that several disputed questions of facts arising in the matter cannot be adjudicated in a writ petition under Article 226 of the Constitution of India. Hence, while dismissing the writ petition, the learned single Judge left the parties to resolve the disputes by approaching appropriate forum other than by way of a writ petition.
2. It would be appropriate to notice the relief sought for in the writ petition:
"... the Hon'ble Court may be pleased to issue an appropriate Writ, direction or order especially in the nature of a writ of Mandamus, directing the Respondents to restitute / refund the amount of Rs.403 Crores paid by the First Petitioner, pursuant to the tender Notification dated 5.11.2007 in respect of Plot No.15 in Survey No.83/1 of Raidurg known as Hyderabad Knowledge City, together with interest @ 18% p.a., on the amount of Rs.403 Crores from the date of receipt of payment till the date of payment to the First Petitioner..."
3. The order of the learned single Judge is assailed, inter alia, on the ground that remedy under Article 226 of the Constitution of India is available even in respect of contractual matters by placing reliance on decisions of the Supreme Court in ABL INTERNATIONAL LTD. v. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.1; ZONAL MANAGER, CENTRAL BANK OF INDIA v. DEVI ISPAT LTD.2; RELIANCE ENERGY LIMITED v. MAHARASHTRA STATE ROAD DEVELOPMENT CORPORATION LTD.3; M.D., H.S.I.D.C. v. HARI OM ENTERPRISES4. It is also assailed on the ground that correspondence between the parties commencing with invitation of bid issued by the respondent corporation clearly spells out the terms of the contract/bargain and appropriate appreciation thereof would entitle the petitioner to the relief under Article 226 of the Constitution of India as no other disputed questions arise.
4. Mr. S.K. Kapur, learned senior counsel appearing the appellant, therefore, contended that only if oral evidence is required to prove a fact, the petitioner may be relegated to a remedy of suit but the present case does not require any evidence to be led, as the exchange of correspondence between the parties, which is not in dispute, is sufficient to adjudicate on the controversy involved in the writ petition. So far as the merits of the claim are concerned, learned senior counsel for the appellant, contended that essential terms of the contract having not been settled, merely on the basis of vague and ambiguous terms, the respondent corporation cannot contend that a concluded contract exists between the parties. He, therefore, justified the relief sought for refund of sale consideration as the negotiations between the parties continued and never did finally settle all the terms of any agreement between them.
5. Per contra, the learned Advocate General appearing for the respondents submitted that the offer of the petitioner having been accepted by the respondent corporation a concluded contract was formed and the petitioner has deposited first two instalments and on their request, the third instalment was waived. Further, from time to time, the petitioners have asked for various concession and with a view to encourage the project, the respondent corporation has agreed to almost all the requests of the petitioner including putting the petitioner's in possession of the proportionate land to the extent of consideration paid by them. He, therefore, submits that the petitioners are trying to resile from a concluded contract only on account of drop in real estate prices and have devised and invented the grounds resiling from contract when there exists none. He also contended that the contract being purely non- statutory, petitioners were rightly relegated to the remedy of common law courts, particularly, as the controversy on the disputed terms and conditions require adjudication on factual aspects. He also submitted that the correspondence between the parties is exclusively with respect to technicalities and details of the project, which cannot be construed as part and parcel of the contract. Learned Advocate General also placed strong reliance upon various decisions of the Supreme Court, reference to which will be appropriately made hereinafter.
6. In this background, it would be appropriate to notice the basic facts:
(a) On 05.11.2007, the second respondent corporation published a notice offering for sale 3 parcels of 30 acres each (Plot Nos.14, 15 and 16) covering total extent of 90 acres of prime land on 'as is where is basis', to reputed developers for developing the said land for mixed use development including office space for knowledge based industry/IT/ITES sector, commercial space, recreational and retail use, hospitality industry, star hotels, service apartments etc. In the said notification, the second respondent had fixed reserve price of Rs.20 crores per acre and sealed tenders in the shape of technical bid and financial bid were invited from reputed developers fulfilling the minimum technical and financial qualifications apart from the manner of fulfilling tender condition, it was also stipulated that successful bidder, whose offer is accepted, should deposit price bid through demand draft drawn from schedule commercial banks and payable at Hyderabad on or before the following dates:
(a) First instalment of 30% - 11.12.2007
(b) Second instalment of 30% - 11.01.2008
(c) Third instalment of 30% and balance - 11.02.2008
(b) It was also notified that for inspection of the property and further details, Chief General Manager with the address and telephone numbers noted, may be contacted during office hours on or before 19.11.2007, which is before the last date of submission of tenders. The said notification also stipulated that the land offered for sale was surplus land acquired by the Government under Urban Land (Ceiling and Regulation) Act, 1976 and the claim of the Government of Andhra Pradesh and the respondent corporation for the aforesaid land was already upheld by the High Court of Andhra Pradesh but the said litigation is pending before the Hon'ble Supreme Court, which had declined any interim order. The land is, therefore, offered, as per the opinion of the Solicitor General of India, subject to final outcome of the pending case before the Supreme Court and in case the Supreme Court holds against the corporation, the amounts received including EMD shall be refunded without interest.
(c) In response to the said notification, petitioner submitted their offer under covering letter dated 20.11.2007 offering Rs.20,01,00,000/- per acre for price of 30 acres of land i.e. parcel of either plot No.14, or 15 or 16.