Ambesh Grih Nirman Sahakari Sanstha Maryadit, Ujjain vs Ujjain Development Authority, Ujjain

Shantanu Kemkar, J.—The petitioner, which is a Society registered under the M.P. Co-operative Societies Act, has filed this petition under Article 226 of the Constitution of India against the respondent-a Development Authority constituted u/s 38 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 making a prayer for grant of following reliefs:-

(1) To quash the letter dated 7-1-2011 (Annexure P-23) issued by the respondent and the tender notices dated 22-1-2011 and 21-1-2011 (Annexures P-24 and 25) issued by the respondent.

(2) To direct the respondent to immediately provide agreed plots to the petitioner and to execute sale deeds thereof.

(3) To allow this petition with costs and any other relief which this Hon''ble Court may deem fit be granted to the petitioner.

Shortly staled the petitioner-Society claims to be owner of the land admeasuring 7.657 hectares comprised in various survey numbers of Village Lalpur. The part of the said land to the extent of 3.119 hectares was sought to be included in the scheme No. P-2/87 prepared by the respondent-Ujjain Development Authority (for short "the UDA"). However, in a meeting of the Hoard of the UDA held on 11-9-1998 the said land was excluded from the scheme.

Though as aforesaid, the land was excluded by the UDA from acquisition in the scheme, a Notification u/s 4 of the Land Acquisition Act was issued for its acquisition. In the circumstances, the petitioner had to file a Writ Petition No. 1211 of 1999 before this Court challenging the said Notification. In the said writ petition, an interim order was passed by this Court on 8-9-1999 restraining the UDA from dispossessing the petitioner from the land in question with a further direction to the UDA to maintain the status quo so far as the land in question. In spite of the interim order dated 8-9-1999 being passed in favour of the petitioner, the UDA proceeded with the acquisition proceedings and an Award was passed in respect of the said land measuring 3.119 hectares. Thereafter, it appears that realising the mistakes occurred, firstly, in issuing Notification for acquisition of land, which was executed from the scheme; and secondly, in spite of there being an order of status quo the acquisition proceedings were continued and an Award was passed an amicable settlement was arrived at between the petitioner and the UDA as per agreement, dated 29-1-2004 (Annexure P-1). Having regard to the settlement arrived at, the petitioner withdrew the said Writ Petition No. 1211 of 1999.

In the meantime, the remaining part of the land of the petitioner to the extent of 2.639 hectares was declared surplus by the State Government. Challenging the order of declaration of land to be surplus, the petitioner had filed Writ Petition No. 1604 of 2000. The said writ petition was disposed of on 20-11-2007 by this Court directing the Principal Secretary of the Revenue Department to take a final decision in the matter. In pursuance to the aforesaid directions issued by this Court, the revision was heard by the Competent Authority of the State Government and was allowed in favour of the petitioner and the land which was declared to be surplus was returned to the petitioner vide order dated 27-5-2008.

As aforesaid, in the meantime a settlement was arrived between the parties vide agreement dated 29-1-2004 (Annexure P-1) to the effect that the petitioner''s land which was wrongly acquired shall be developed by the UDA and the petitioner shall be entitled to get developed plot as mentioned in the map attached to the agreement for which the petitioner will have to pay development charges as agreed to in the said agreement. Thereafter, further agreement and the amended agreements were entered into between the petitioner and the UDA. However, when the petitioner claimed possession of the plots, the UDA instead of giving possession of the plots mentioned in the agreement, issued a letter to the petitioner stating therein that a Sub Committee has been constituted and after the matter being inquired by the said Sub Committee, the petitioners'' grievance about delay in giving the possession of the plots in question shall be decided. Having informed the petitioner as aforesaid, the UDA issued the impugned Notice Inviting Tender in respect of the plots, which were to be allotted to the petitioner. Aggrieved the petitioner has filed this petition seeking the reliefs as mentioned above.

From the averments made by the parties, we find that undisputedly part of the petitioner''s land to the extent of 3.119 hectares was initially proposed to be acquired by the UDA under the aforesaid scheme. However, the said proposal of acquisition of the petitioner''s aforesaid land was dropped and the petitioner''s land was excluded from the scheme. Even after exclusion of the petitioner''s land from the scheme, inadvertently, notification to acquire the said land was issued. The said action of issuance of Notification was assailed by the petitioner in Writ Petition No. 1211 of 1999. In the said writ petition, an interim order as described hereinabove was passed on 8-9-1999 in favour of the petitioner. Thereafter, realising the mistakes, as aforesaid above, a settlement as per the agreement dated 29-1-2004 (Annexure P-1) was arrived at between the parties.

It appears that on account of some complaint, Lokayukt Enquiry was ordered in the matter, however, no irregularity or illegality was found in the Lokayukt Enquiry and the Lokayukt, vide order dated 21-8-2009 closed the complaint as would clear from the letter dated 29-8-2009 (Annexure P-10) issued from the office of Lokayukt. However, even after this when there was no impediment in giving the possession of the plots to the petitioner in terms of the settlement and when out of the plots, which were to be allotted to the petitioner, few plots were sought to be auctioned, the petitioner had filed this petition.

According to the learned Counsel for the petitioner, the UDA being the instrumentality of the State is duty bound to act fairly and justly in discharging its duties, however, in spite of no fault on the part of the petitioner in paying the development charges, the UDA has not adhered to the agreement entered into between them. Thus, he argued that the UDA is acting arbitrarily, unfairly and unreasonably by not complying the agreement which is statutory in nature. The learned Counsel for the petitioner in support of his contention that the writ petition would be maintainable keeping in view the facts and circumstances of the case has placed reliance on the judgment passed by the Supreme Court in the case of Zonal Manager, Central Bank of India Vs. Devi Ispat Ltd. and Others, and in the case of Sushila Chemicals Pvt. Ltd. and Another Vs. Bharat Coking Coal Ltd. and Others,

The learned Counsel for the respondent/UDA, on the other hand, contended that the petitioner has a remedy of filing a civil suit for specific performance of the contract and the writ petition is not a proper remedy for redressal of the grievance raised in this petition. He placed reliance on the judgment of the Supreme Court in the case of World Tel Inc. and Another Vs. Union of India (UOI) and Others, ; State of Jammu and Kashmir Vs. Ghulam Mohd. Dar and Another, ; and State of Bihar and Others Vs. Jain Plastics and Chemicals Ltd.,

In the case of Zonal Manager, Cent/id Bank of India Vs. Devi Inspat Limited and others (supra), it has been held by the Supreme Court that:-

It is clear that (a) in the contract if there is a clause for arbitration, normally, a Writ Court should not invoke its jurisdiction; (b) the existence of effective alternative remedy provided in the contract itself is a good ground to decline to exercise its extraordinary jurisdiction under Article 226; and (c) if the instrumentality of the State Acts contrary to the public good, public interest, unfairly, unjustly, unreasonably discriminatory and violative of Article 14 of the Constitution of India in its contractual or statutory obligation, writ petition would be maintainable. However, a legal right must exist and corresponding legal duty on the part of the State and if any action on the part of the State is wholly unfair or arbitrary, Writ Courts can exercise their power. In the light of the legal position, writ petition is maintainable even in contractual matters, in the circumstances mentioned in the earlier paragraphs.

In the case of Sushila Chemicals Private Limited and another Vs. Bharat Coking Coal Limited and others (supra), the Supreme Court placing reliance on the judgment passed in the case of Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, has held that even in the domain of contractual matters, the High Court can entertain writ petition on the ground of violation of Article 14 of the Constitution when the impugned act of the State or its instrumentality is arbitrary, unfair or unreasonable or in breach of obligations under public law.

In the present case, it is not in dispute that the respondent-UDA is a public undertaking and is discharging public function and as such is a State within the meaning of Article 12 of the Constitution of India. Admittedly, a settlement was arrived at between the parties and they had entered into an agreement as aforesaid. However, it appears that without any Justiciable cause the respondent on the pretext of pendency of some enquiry of which also no material was placed on record, denied the compliance of the agreement (Annexure P-1) and denied the allotment of plots in favour of the petitioner''s society. The action of the UDA being manifestly contrary to the agreement entered by it with the petitioner, it can be very well termed to be arbitrary and unfair. In the circumstances, in our considered view in view of the law laid down by the Supreme Court in the case of Zonal Manager, Central Bank of India Vs. Devi Inspat Limited and others (supra), and in the case of Sushila Chemicals Private Limited and another Vs. Bharat Coking Coal Limited and others (supra), the writ petition is maintainable.

The case of World Tel. inc. and another Vs. Union of India and others (supra), on which reliance has been placed by the respondent relates to claim of refund of money arising out of hotly disputed issue. In that in view of the fact that the issues were hotly contested, the Supreme Court observed that in such contractual matter writ would not be maintainable. In the present case, the execution of agreement is not disputed. In the Lokayukt enquiry also nothing adverse was found enabling the UDA to deny the compliance of the settlement as per agreement (Annexure P-1). In the reply to plausible explanation was offered by the UDA to deny the compliance of the agreement.

In the case of State of Jammu and Kashmir Vs. Ghulam Mohd. Dar and another (supra), the amount claimed under the works contract was sought to be enforced through a writ petition under Article 226 of the Constitution of India. In the circumstances, the Supreme Court has observed that ordinarily writ of mandamus would not be issued for enforcing the terms and conditions of contract. It further observed that High Court would not entertain the writ petition involving disputed questions of fact.

In the case of State of Bihar and others Vs. Jain Plastics and Chemicals Ltd. (supra), the Supreme Court had observed that the petition under Article 226 of the Constitution of India would not be maintainable when it is to be decided as to whether action of party in breach of the contract was justified on the basis of facts and evidence. In the present case, as observed, no disputed questions of facts which requires recording of evidence exist. Thus, the cases on which reliance has been placed by learned Counsel for the respondent are having no application to the facts involved in the present matter.

As already narrated in the present case, there is no dispute about execution of the agreement. There is also no dispute about the petitioner''s entitlement on the basis of the said agreement. The only defence, which has been taken by the respondent in the return is that an enquiry is to be conducted. However, no material was produced as to what sort of enquiry is to be held. It is also revealed that in the Lokayukt enquiry nothing wrong was found in the matter. It is worthwhile to mention that the respondent has neither filed any documents to show that any Sub Committee is enquiring into the matter nor any record to that effect was produced. It has also not been brought to our notice as to on what issue the Sub Committee is examining the matter and under which authority or on the basis of which order of any Competent Authority.

Having regard to the aforesaid, in our considered view, the action of UDA is unreasonable, unfair and is arbitrary. Having held so, we allow the petition and direct the respondent-UDA to comply with the terms and conditions of the agreement entered by it with the petitioner. As a consequence the impugned letter dated 7-1-2011 and the Notices Inviting Tender (Annexures P-24 and P-25) impugned in this petition are quashed. The respondent-UDA is directed to provide the agreed plots to the petitioner and to do the necessary requirements of executing the sale-deeds thereof after receiving necessary development charges as per the agreement. No order as to costs.