THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R.KANTHA RAO WRIT APPEAL No.728 and 1052 of 2008 JUDGMENT: (Per the Ho’nble Sri Justice B.Prakash Rao) The unusual dispute between and amongst the allottee authority vis-à-vis allottee who is no other than a body corporate and another Corporation is the prime concern which calls for a decision. The dispute almost runs on the same lines as in between or amongst the private parties. And question squarely falling as to whether on the facts and circumstances would the Court enforce obligations arising out of contractual relations in a private field. The appellant is the respondent No.2 in the writ petition filed by the respondent N.1 herein. The appellant is a corporate body whereas the respondent No.1 is the writ petitioner, which is a Government of India undertaking. In a narrow compass it sought for allotment from the respondent No.3 herein which is an Industrial Infrastructure Corporation of the State and whereby got allotted two plots in the Madhapur Software Units layout bearing CFC-4 admeasuring Ac.1-00 cents and CFC-5 admeasuring Ac.0- 25 cents subject to the payment of price @ of Rs.1923/- per square yard. The said allotment was sought for the purpose of constructing a telephone exchange and ground based tower. The undisputed facts, which emanate on the backdrop, as succinctly extracted by the learned Single Judge are: “The undisputed facts in this case are Department of Telecommunications, Hyderabad, which was under the control of the Union Government, had on 06.06.1996 sought allotment of site of 2 acres from APIIC for setting up of a telephone exchange at Info City in Madapur. Through its letter dated 14.08.1996 APIIC informed the Deputy General Manager (Planning) of the Telecommunication Department that land admeasuring about 2 acres would be allotted to it at a tentative cost of Rs.1,923/- per square yard, value of which works out to Rs.1,86,14,640/- besides frontage charges @ 10%. Subsequently, vide its letter dated 26.10.1996, APIIC informed the Deputy General Manager (Planning) of Telecommunication Department that provisional allotment of Act.1.00 of land, at a tentative cost of Rs.1,282/- per square yard is made to it and so a total cost of Rs.62,04,880/- may be paid on or before 30.11.1996. As that amount was not paid, APIIC through the letter dated 18.02.1997 addressed to the Deputy General Manager (Planning) Telecommunications Department, requested him to depute one official of Telecommunications Department for physical inspection of the plot earmarked for the Telecommunications Department, and make necessary arrangements for payment of the cost without further delay, and followed it by another letter dated 21.02.1997 addressed to the Chief General Manager, Telecommunications of Andhra Pradesh, informing that APIIC already allotted Ac.25.75 to some units, and as layout, finalized for Ac.41.50 cents was submitted to Hyderabad Urban Development Authority for its approval, and as it is likely to take up development activities like providing roads, streetlights, which are expected to be completed by December 1998, it allotted one acre of land in the layout for establishment of telephone exchange, to meet the requirement of entrepreneurs of the locality and others in and around Madapur village, and as it did not receive any communication from the Telecommunications Department in regard to payment to be made for that land, that reminder is being sent, and followed it by another letter dated 12.09.1997. In reply to the letter dated 12.9.1997, the General Manager (Planning), Hyderabad Telecom District, requested APIIC to provide two CFC marked sites for construction of telephone exchange and building, one adjacent to plot Nos.6 and 7 measuring one acre and another site of about 5 acres. In reply thereto APIIC through its letter dated 10.12.1997, addressed to the General Manager (Planning) Hyderabad Telecom District, stated that it is allotting a total extent of Ac.1.25 (Ac.1.00 in CFC 4 and Ac.0.25 in CFC 5) on outright sale basis in Phase I, Hitec City Project, Madapur, for setting up a telephone exchange subjected the conditions mentioned therein. By the letter dated 29.01.1998, Divisional Engineer in the office of the General Manager Telecom District, Hyderabad, requested APIIC to relax conditions 11 and 12 mentioned in the letter of allotment, as telecom is a Central Government public utility service department, and the land allotted to it will be utilized only for the purpose of the department, and sent Rs.77,61,100/- towards tentative cost of Ac.1.25 cents and process fees etc to APIIC through the letter dated 09.02.1998. Thereafter APIIC through its letter dated 10.02.1998, informed the General Manager (Development), Hyderabad Telecom District, that the request made to it for relaxation of clause Nos.11 and 12, which relate to taking up of the civil works and their completion, was considered favourably and that it, however, has to furnish the details of the schedule of construction works. In response to the letter dated 19.11.1998 of the Deputy General Manager (Planning), Hyderabad Telecom District, for handing over the possession of plots CFC – 4 & 5 pending execution of the agreement for sale, APIIC, through its letter dated 11.02.1998, informed that plots CFC 4 & 5 are being handed over to the Telecom Department pending execution of agreement, as per the revised sketch prepared, by deleting the area through which a public drain is passing through, and handed over possession of plots CFC 4 and 5 on 31.03.1999. Thereafter, through the letter dated 20.07.2000, APIIC informed the Principal General Manager, Hyderabad Telecom District, that as an excess area of 0.021 acres (101.64 Sq. yards) was put in its possession, the telecom department has to pay its cost of Rs.2,16,872/- on or before 08.08.2000, whereupon the Deputy General Manager (Planning), Hyderabad Telecom District, through his letter dated 11.09.2000 requested exemption from payment of Rs.2,16,872/- towards excess land found in its possession after construction of the compound wall, for which APIIC through its letter dated 14.10.2000 stated that it is waiving interest of Rs.86,569/- but land cost at Rs.1,282/- per sq.yard for 101.64 sq.yards, amounting to Rs.1,30,303/- has to be paid by the Telecom Department. That amount of Rs.1,30,303/- was paid by the telecom department to APIIC through the letter dated 18.01.2001. Thereafter the petitioner came into existence as a wholly owned Union Government company and foundation stone for ‘BSNL Bhavan’ was laid by the then Minister for Communications, Government of India on 23.02.2001. Through its letter dated 22.1.2003, APIIC informed the petitioner that in as much as it did not take up construction of telephone exchange building, and kept the land vacant, it has to pay vacant land tax of Rs.3,42,278/- from the date of its taking over possession i.e. 31.03.1999 within 15 days, and followed it by a letter dated 30.01.2003 stating that in as much as it failed to take up construction work of the telephone exchange within 2 years from 31.3.1999 the date of taking over possession of the land as contemplated by clause 11 of the conditions in the letter of allotment, in spite of several reminders, it has to show cause within 15 days as to why the allotment made in its favour should not be cancelled, for which petitioner sent a reply dated 4/7.3.2003 that construction work would be taken up as and when funds are made available by the head quarters, and as the Hyderabad Telecom District, became BSNL, as a Government of India Enterprise, demand for payment of Rs.3,42,278/- towards vacant land tax from it is not justified, and made a request for waiver of that amount, more so because the land allotted to it would be used for public utility purpose only. But, APIIC, as a final show cause notice, through its letter dated 10.03.2003, asked the petitioner to show cause as to why the allotment made in its favour should not be cancelled for non implementation of the project as per the terms and conditions of the allotment, and followed it by another letter dated 05.07.2003, demanding the petitioner to pay Rs.1,18,296/- towards vacant land tax within 15 days from the date of receipt of that letter and reminded the petitioner through the letter dated 17.09.2003, to expedite implementation of project and payment of dues. While paying Rs.2,23,982/- towards vacant land tax for the two plots CFC 4 & 5 to APIIC, petitioner, through its letter dated 10.11.2003, requested APIIC to exempt it from payment of vacant land tax, stating that it would take up construction work as soon as funds are made available to it. In reply thereto, APIIC through the letter dated 14.11.2003, informed the petitioner that as it is liable to pay vacant land tax, in the form of service charges leviable by local authorities, it has to pay Rs.1,80,997/- towards vacant land tax as service charges. When the petitioner, through its letter dated 17.11.2003, requested APIIC to execute sale deeds, APIIC through its letter dated 02.12.2003, informed the petitioner that it would examine its request for execution of sale deed if steps for implementation of project, as envisaged in the original proposal, are taken up and when balance vacant land tax is paid, and if it were fail to do so it will have no other option except to cancel the allotment made to it and resume possession of plots CFC 4 and 5. In reply, petitioner through its letter dated 16.12.2003, informed APIIC that it would arrange payment of vacant land tax soon and as the construction of telephone exchange and customer service center etc were approved for 2004-05, it will take up those works shortly and so the plots may be registered in its favour. Thereafter through its letter dated 02.01.2004 APIIC informed the petitioner that as allotment of plot CFC-5 is cancelled it has to deliver vacant possession of that plot, and that it would register plot CFC 4 only after it takes up construction of the telephone exchange, and reiterated its stand through the letter dated 2.1.2004, whereupon petitioner sent a cheque for Rs.1,80,997/- towards vacant land tax and service charges for the plot Nos. CFC 4 & 5 through its letter dated 8.1.2004. Subsequently APIIC through its letters dated 27.01.2004 and 30.11.2004 asked the petitioner to deliver back possession of plot No.CFC-5, for which petitioner through its letter dated 05.02.2004 informed that inasmuch as the construction of proposed ‘BSNL Bhavan’ and telephone exchange are planned for construction in the first quarter of 2004-05, and as the value of the cables to be laid is approximately Rs.1.2 crores, it cannot surrender plot CFC 5, whereupon APIIC through the letter dated 26.2.2004 informed the petitioner that inasmuch as it failed to implement the project, as envisaged, even after lapse of three years nine months from the date of taking over of possession of the plots, and as allotment of plot CFC-5 was already cancelled, its request for extension of time is negatived and so it has to surrender possession of plot CFC 5 on or before 10.03.2004, failing which it would resume possession of plot CFC 5 in exercise of its power of re-entry on 11.03.2004, and the amount paid towards cost of plot CFC-5 would be refunded after deducting EMD and rentals for the period of its occupation as per rules in force, whereupon the petitioner through its letter dated 05.03.2004, addressed to the Chairman and Managing Director of APIIC, stated that inasmuch as the site was procured for construction of a full fledged customer service center etc and as underground cables worth Rs.1.2 Crores were laid and as construction work of the proposed buildings would commence in the first quarter of 2004-05 and would be completed soon, allotment of the site may be restored. In reply APIIC, through its letter dated 12.03.2004, informed the petitioner that physical possession of plot CFC-5 was resumed on 11.03.2004 at 4.00 PM before witnesses and a copy of the resumption proceedings which was pasted on the main gate of the plot is being enclosed therewith for information, and followed it by another letter dated 10.06.2004 enclosing a cheque for Rs.16,78,721/- towards the refund of land cost and cost of structures, to the Deputy General Manager of the petitioner, which cheque was returned to APIIC along with the letter dated 15.4.2004 which was returned by the petitioner and when APIIC resent that cheque petitioner refused to receive the same. Though no submissions are made in this regard, a plea in fact was taken in the counter affidavit filed on behalf of APIIC that inasmuch as no allotment or assignment of the allotment made in favour of the Hyderabad Telecommunications is made in favour of the petitioner, it cannot maintain the writ petition, I have to state that I find no force in that plea because petitioner is but a successor in interest of the Hyderabad Telecom Department, and as APIIC, itself in fact was willing to execute sale deeds in favour of the petitioner, provided it fulfils the conditions laid down by it, as seen from its letter dated 2.12.2003, in reply to the letter dated 17.11.2003 of the petitioner addressed to APIIC. In fact the cancellation of allotment of CFC-5 was not on the ground that no allotment or assignment of the allotment was made in favour of the petitioner, but it was made on the ground that petitioner did not fulfil the conditions imposed on it at the time of allotment. So it is clear that the allotment made in favour of the predecessor in interest of the petitioner enured to the benefit of the petitioner also and so petitioner can maintain the writ petition, though it is not the original allottee. The topography of the two plots CFC-4 and CFC-5, which were allotted to the Telecom Department and succeeded by the petitioner, shows that they are situated at two different places and are separated by a road. Extent of Plot CFC-4 is Ac.1.00 cents and the extent of plot CFC-5 is Ac.0.25 cents and a site which is adjacent to CFC-5 was allotted to the 3rd Respondent by the APIIC in pursuance of an agreement dated 08.10.2003 entered into between the Government of Andhra Pradesh (1st respondent) and the 3rd respondent. ’’ From the above the relief now has sought for by the respondent No.1/writ petitioner is challenging the correctness of the proceedings of cancellation of the Plot No.CFC-5 mainly on the ground that the said allotment of both the plots is for the common facilities, and therefore, they cannot be separated for the purpose of cancellation. Further, it is the case of the respondent No.1/writ petitioner that the entire exercise is only with a view to help the respondent No.3, who is the appellant herein with whom the said Corporation has already entered into a memorandum of understanding and it is only to see that the same is in force, the present exercise is taken recourse to. The main objection raised on behalf of the respondents including the appellant herein was that the maintainability of very writ petition in regard to the contractual arena and seeking enforcement in its extra-ordinary jurisdiction under Article 226 of the Constitution of India apart from putting a blame on the writ petitioner itself as to the delay and laches and non- compliance of the mandate as contemplated under the terms under contract in regard to the construction which the petitioner has failed to do so in respect of the time frame or reminders issued repeatedly and long lapse of time, and therefore, either way it would justify that the impugned action of cancellation is perfectly valid. The learned Single Judge, after taking into consideration, the submissions made from both sides allowed the writ petition inter alia basing the conclusions on the reasons that there could not have been such restriction in canceling one plot out of two plots which have been allotted to the writ petitioner, and the non-construction as complained against is not the reason, but it is only to help the appellant/respondent No.3 herein for its allotment, which has been done in a very hasty manner. Further, the learned Single Judge sought to justify the delay in the construction by the writ petitioner in view of want of funds since the same has to be emanated from the Government of India for which there has been a considerable delay. That apart it has also proceeded to consider that there being such commonality in the common facilities and interconnection, such plot in Plot No.CFC-5 could not practically been used by the appellant herein, who is the subsequent allottee. The learned Single Judge also observed that the relaxation given by the Industrial Infrastructure Corporation in regard to Clauses 11 and 12 are conditional. Having regard to the aforesaid reasons and the findings as arrived at by the learned Single Judge, the writ was issued setting aside the impugned order of cancellation with further direction to the Industrial Infrastructure Corporation to execute a sale deed in favour of the petitioner not only for Plot CFC-4, but in respect of Plot CFC-5 and put back the writ petitioner in possession of the Plot No.CFC-5. Hence, this appeal. On a consideration of the detailed submissions made from both sides viz., by the learned Advocate General, on behalf of the appellant herein and Sri E.Manohar, the learned Senior Counsel appearing for the respondent No.1/writ petitioner and the learned Standing Counsel appearing for the Corporation, the ultimate quest is as to whether on this background and the facts as emanate would this Court could have exercised such jurisdiction in exercise of its power under Article 226 of the Constitution of India to enforce the contract. There being no dispute in regard to the aforesaid checkered events and the facts as stated already in the above preceding paragraphss, admittedly, there has been an allotment of two plots in favour of the writ petitioner and possession was also given and further admittedly in terms of the contract no construction was taken up by the writ petitioner. There has been a repeated correspondence and also notices by the Industrial Infrastructure Corporation to the writ petitioner, and yet there was no progress and the time is lost sufficiently. The main defense sheltered by the learned writ petitioner is to the effect that it being a Government of India undertaking necessarily has to look towards the Government for the funds where there has been a delay and therefore it could not possibly take up the construction. Further, having regard to the relaxation made, the question of cancellation would not be permissible. However, the fact remains that all these inter se rights and obligations emanate from the contract between the writ petitioner and the Industrial Infrastructure Corporation. Both of them stand on the same footing as that of any two parties to the contract, there cannot be any distinction or any upper-hand merely because of it being a Government of India undertaking. It is now well known fact that the Government is the largest litigant and it has to take its stand on the same lines or come in the same queue as that of commoner or a citizen, especially, where it is trying to seek enforcement of any rights subject to such permissibility. Admittedly, the contract is not a statutory one nor there is any such statutory sanction behind the same, and therefore, neither side can take any benefit nor any advantage or any upper-stray in regard to its enforceability. The Industrial Infrastructure Corporation is a body, which has been constituted for the purpose of development of the industries, the business of which includes including the allotment of the plots to the eligible units, both private and public. Therefore, the question now necessarily has to be seen from the angle and a pedestal of a commoner or a citizen as to whether the same approach could have been made for any such attributions as made. Admittedly, there has been no construction and the time laps far beyond the period and though the notice has been issued and no progress has been shown. There is no dispute it is true that there has been a memorandum of understanding between the appellant and the corporation prior thereto, but that itself cannot constitute a link for the present cause or lis to be shredded upon to rope in to said reason for the purpose of making any attribution. It is not a case where the writ petitioner has made out any such valid ground or circumstance to show that even on the facts as exists, nothing could be attributed against it for non enforcement of the obligations on its part. The contract and the terms contained therein amply show various rights and obligations from both which includes at the utmost for and on behalf of the writ petitioner to make the construction within the time allotted. It is the such contract not unusual and it is a normal contract as one could have been allotted with any other citizenry who wish to establish any industrial unit. Therefore, no distinction as such can be drawn merely because the writ petitioner happens to be Government of India and has to wait for the funds allotment. Further, there being no proper explanation, and admittedly the construction not having been made at all within the time prescribed, it is not open for the writ petitioner to try to pass on the blame on the other side and try to link with any other reason other than one which squarely falls upon it. The contract is mutual, bilateral and not being statutory one, and there being no such sanctity under the law behind any of those terms or even under the contract itself necessarily the writ petitioner has to stand in the same footing as that of any party to the contract. Necessarily, even from these admitted facts the only remedy, if at all, the writ petitioner would seek is to go for the other common law remedies, which are provided for under the law for any of the breaches, or the complaint has sought to be made. The complaint admittedly is one against the cancellation of the plot and for the same being allotted to appellant herein. Necessarily, it is only by measure of damages, which the writ petitioner can as well seek to enforce rather than seeking for specific enforcement in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India. The principles in regard to the enforceability of the contractual obligations under Article 226 of the Constitution no longer res intigra. No doubt each case has to be seen from its own facts and circumstances. It is not a case where any such arbitrary action can be attributed or can be made out on the facts and circumstances and even to warrant any extraordinary knock of this Court. Except trying to link the cancellation with the earlier agreement by the Corporation with the appellant herein, no other reason has been pointed out nor any such valid ground has been made to make out any arbitrary action on the part of the Corporation. Admittedly, there has been a re-entry by the Industrial Infrastructure Corporation and the said plot has already been allotted to the appellant herein which has put in possession. In view of such post-facto development taking place, even the cause for which the enforcement is sought, has virtually become infructuous and only approach for the appellant-writ petitioner is only to knock the civil Court for such remedies as may be available under the law. In the circumstances, the learned Single Judge was not right in proceeding to hold that there has been an illegality in the cancellation of the allotment made to the writ petitioner and the allotment being made to the appellant herein. In view of the same circumstances, we are of the view that the very writ petition as has been filed and claimed is wholly misconceived and unsustainable and having regard to the serious lapses on the part of the writ petitioner itself in not adhering to the terms of the contract, which is in the private