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TMI Blog2013 (2) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to impose a corresponding imperative duty existing in law.Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. Whether RIICO had authority to cancel the alloted land by not providing access to road . - HELD THAT:- The State of Rajasthan had acquired the land in exercise of its eminent domain and transferred the same to the appellant-RIICO after receiving the consideration amount and executed the lease deed in its favour. The State exercised its power in transferring the land to RIICO under the Rules 1959. However, further allotment by RIICO to the respondent-company was under the Rules 1979. Rule 11-A of the Rules 1959, as amended created a legal fiction by which the respondent-company had become a lessee and the State of Rajasthan, the lessor and RIICO had no authority whatsoever, to cancel the allotment of land made in favour of the respondent-company, since it was only the State of Rajasthan that had the authority to cancel the said allotment; by not providing for an access road, the purpose for which allotment was made by RIICO stood defeated, and this was what had resulted in the delay of the development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Declaration under Section 6 of the Act was made on 22.6.1982 for the land admeasuring 591 Bighas and 17 Biswas. After meeting all requisite statutory requirements contained in the Act, possession of the land, was taken over by the Government and was subsequently handed over to appellant-RIICO, on 18.10.1982 and 17.11.1983. The Land Acquisition Collector assessed the market value of the land and made an award on 14.5.1984. RIICO made allotment of land admeasuring 105 acres vide allotment letter dated 10.3.1988 to the respondent no.1 company, to facilitate the establishment of a Gem Industrial Estate for the manufacturing of Gem stones. C. In pursuance of the aforesaid allotment letter, a lease deed was executed between the appellant and respondent-company on 22.5.1989, with a clear stipulation that the land was allotted on an as is-where-is , and that the respondent-company must complete the said project within a period of 5 years, and further that, in the event that the terms and conditions of the lease agreement were not complied with, the appellant would be entitled to recover its possession in addition to which, various other conditions were also incorporated therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enging the cancellation order dated 1.10.1996 and the taking over of possession by the appellant on 3.10.1996. The appellant contested the said writ petition on the grounds that it was entitled to restoration of possession, as the respondent-company had failed to ensure compliance with the terms and conditions incorporated in the lease deed, according to which, the company was required to complete the said project within a period of 5 years. However, presently, the extent of development completed by it stood at 10%. Therefore, in light of the aforementioned circumstances, the appellant had no choice but to cancel the lease deed and take back possession. H. The High Court vide its impugned judgment and order, allowed both the writ petitions quashing the order of cancellation, and directed the restoration of possession of the aforesaid land to the respondent- company, and further, also directed the appellant to provide to the respondent-company, the approach/access road demanded by it. Hence, these appeals. 3. Shri Dhruv Mehta, learned senior counsel appearing on behalf of the appellant-RIICO, and Shri Manish Singhvi, learned Additional Advocate General for the State of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide to the respondent- company, an access road on equitable grounds, taking into consideration the fact that, in the event that the respondent-company s area remained land locked, it would be impossible for it to develop the project, and has stated that not providing the access road was in fact, the basic reason for delay in development. Thus, the appeals lack merit and, are liable to be dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. Before proceeding further, it may be pertinent to refer to the relevant statutory provisions, and certain terms of the lease deed. Rule 11-A of the Rules 1959 read : . xx xx xx Clause (iv) of Rule 11-A.- The Rajasthan State Industrial Development and Investment Corporation Ltd. may sub- lease the leased land or part thereof for industrial purpose; including essential welfare and supporting services. Provided that in the case of Diamond and Gem Development Corporation to whom the land has already been leased out by RIICO for 99 years, the sub-lessee i.e. DGDC may further sublet and the terms and conditions and other provisions contained in the rules in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manager on any breach of any of these rules, condition of allotment letter and terms of lease agreement. 8. It may also be pertinent to refer the relevant terms and conditions of lease deed dated 22.5.1989, which read as under: AND WHEREAS the lessor has agreed to demise and the lessor has agreed to take on lease, the piece of land known as plot no. SP-1 Indusrial Area, Sanganer, Phase- II on as is where is basis : xx xx xx 2(b) That the lessee will bear, pay and discharge all service charges as may be decided by the lessor from time to time which for the present would be @ ₹ 10.10 (Ten paisa per sq.mtrs.) per year from the date, the lessor provided as pucca links road in this area. xx xx xx (d) That the lessee will erect on the demised premises ..and will commence such construction within the period of 6 months and will completely finish the same fit for use and start production within the period of 60 months from the date of these presents or within such the case of these presents, or within such the date of these presents or within such extended period of time as may be allowed by the lessor in writing at its discretion. xx xx xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on appointed by him. The decision of such arbitrator shall be final and binding on the parties. Before entering into merits of the case, it is required to deal with the legal issues involved herein: I. Approbate and Reprobate 9. A party cannot be permitted to blow hot-blow cold , fast and loose or approbate and reprobate . Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. (Vide: Nagubai Ammal Ors. v. B. Shama Rao Ors., AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar, AIR 1965 SC 1216; Ramesh Chandra Sankla etc. v. Vikram Cement etc., AIR 2009 SC 713; Pradeep Oil Corporation v. Municipal Corporation of Delhi Anr., AIR 2011 SC 1869; Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420; and V. Chandrasekaran Anr. v. The Administrative Officer Ors., JT 2012 (9) SC 260). 10. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. Contractual disputes and writ jurisdiction 12. There can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. (Vide : Bareilly Development Authority Anr. v. Ajay Pal Singh Ors., AIR 1989 SC 1076; and State of U.P. Ors. v. Bridge Roof Co. (India) Ltd., AIR 1996 SC 3515). 13. In Kerala State Electricity Board Anr. v. Kurien E. Kalathil Ors., AIR 2000 SC 2573, this Court held that a writ cannot lie to resolve a disputed question of fact, particularly to interpret the disputed terms of a contract observing as under: The interpretation and implementation of a clause in a contract cannot be the subject- matter of a writ petition. .If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand. IV. Interpretation of terms of contract 16. A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however is reasonable, if the parties have not made it themselves. It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanning Development Authority Ors. v. Raghu Nath Gupta Ors., (2012) 8 SCC 197 , holding as under: We notice that the respondents had accepted the commercial plots with open eyes, subject to the abovementioned conditions. Evidently, the commercial plots were allotted on as-is-where-is basis. The allottees would have ascertained the facilities available at the time of auction and after having accepted the commercial plots on as-is-where-is basis, they cannot be heard to contend that PUDA had not provided the basic amenities like parking, lights, roads, water, sewerage, etc. If the allottees were not interested in taking the commercial plots on as-is-where-is basis, they should not have accepted the allotment and after having accepted the allotment on as-is-where-is basis, they are estopped from contending that the basic amenities like parking, lights, roads, water, sewerage, etc. were not provided by PUDA when the plots were allotted (See also: UT Chandigarh Admn. Anr. v. Amarjeet Singh Ors., (2009) 4 SCC 660). VI. As if means 19. The expression as if , is used to make one applicable in respect of the other. The words as if create a le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne in question, were to be treated as such though, in fact, they were not so. (Emphasis added) 22. The instant case is required to be decided in the light of the aforesaid settled legal propositions. The terms and conditions incorporated in the lease deed reveal that, the allotment was made on as-is- where-is basis. The same was accepted by the respondent-company without any protest, whatsoever. The lease deed further enabled the appellant to collect charges, in case it decided to provide the approach road. Otherwise, it would be the responsibility of the respondent-company to use its own means to develop such road, and there was absolutely no obligation placed upon the appellant to provide to the respondent the access road. As the respondent-company was responsible for the creation of its own infrastructure, it has no legal right to maintain the writ petition, and courts cannot grant relief on the basis of an implied obligation. The order of the High Court is in contravention of clause 2(g) of the lease deed. 23. The State of Rajasthan had acquired the land in exercise of its eminent domain and transferred the same to the appellant-RIICO after receiving the consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the appellant-RIICO, deciding this on equitable grounds. The terms of the lease deed clearly stipulated that in case the appellant-RIICO provides the access road, it will be vested with the right to collect the charges incurred by it from the respondent-company, therein, and in the alternative, it would be the obligation of the respondent-company to develop its own infrastructure, and the same would include development of the access road. Therefore, the appellant-RIICO was not under any obligation to provide the said access road. 27. The interpretation given to the amended Rule 11-A of the Rules 1959 by the High Court, takes away the vested right of the appellant- RIICO in the title as well as in the interest that it had acquired in the property, as it had paid the entire amount for the land to the State when possession of land was handed over to it. Rule 11-A of the Rules 1959 was amended only to facilitate the respondent-company to grant further sub-lease and not to divest RIICO from its rights and title. It was found necessary in wake of difficulties faced by the respondent-company as it was not permissible for it to grant further sub-lease. Thus, the rule provided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities. However, the said application did not specify how much more time the company was seeking, and that too, without meeting any requirements provided in the statutory rules. 30. According to clause 2(d) of the lease deed the entire project was to be completed within a period of five years i.e. by 25.5.1994. But it is evident from the material on record that construction was just made on the fraction of the entire land. Clause 2 (i) contemplated that, the lessee will not transfer nor sub-let nor relinquish rights without prior permission from the appellant-RIICO. However, it is evident from the record that the respondent-company had negotiated with a third party for development of the land. 31. The cancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondent- company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondent- company ought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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