1 HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (S. B.: Hon'ble Mr Justice S.C. Sharma) W.P No.3522/2011 M/s Ashiana Infratec (P) Ltd. Vs. State of M.P. & Anr. Shri B.S. Nagar, learned counsel for the petitioners. Shri A.K. Sehti Sr. Counsel with Shri Rahul Sethi, learned counsel for the respondent No.2. O R D E R (22.9.2011) The petitioner before this Court a Private Ltd. Company registered under the Companies Act, 1956 has filed this present writ petition being aggrieved by the action of Ujjain Development Authority in cancelling the allotment of a plot and is also aggrieved by the decision of Ujjain Development Authority by which the same plot has been offered to the petitioner company at higher rate on the basis of guidelines fixed by the Collector for the year 2010 – 2011 in the matter of payment of stamp duty. The contention of the petitioner company is that the petitioner company has submitted an application for allotment of commercial plot located at Triveni Vihar, Ujjain in the year 2007 and the request of the petitioner company for allotment of commercial plot ad- measuring 13230 square metre was considered and based upon the 2 tender of the petitioner company, as highest rate was offered by the petitioner company, the same was accepted on 26.6.2007. The rate of Rs.3350.00 per square meter was accepted and the Ujjain Development Authority directed the petitioner to pay 25% of the total consideration amount i.e. Rs.11080125/- out of total consideration i.e. Rs. 44320500/-. The possession of the plot was handed over to the petitioner on 1.8.2007. 3. The contention of the petitioner is that an additional area was also available for allotment and based upon the request of the petitioner company, the area of plot was increased by 2940 square meter and the total consideration was worked out as Rs.54169500/- and the petitioner company was required to pay 25% of the said amount and the balance amount of Rs.40627125 was to be paid within three year in 6 half yearly installments of Rs.8096412/-. The petitioner company has further stated that an agreement was executed on 22.5.2008 and the same is also on record as Annexure-C at page 17. The petitioner company has further stated that as per terms and conditions of the agreement a sum of Rs.13542375 was already paid to Ujjain Development Authority being 25% of the total amount in respect of 16318 square meter and the petitioner company has thereafter deposited Rs.60 lacs on 31.12.2008, Rs.20 lacs on 23.5.2009, Rs.61 lacs on 28.5.2009, Rs.50 lacs on 8.2.10 and Rs.26 lacs on 20th May, 2010. At this stage learned counsel appearing for the petitioner company has informed this Court that one payment is not 3 reflected in the petition and it was a sum of Rs.25 lacs deposited by the company on 23.2.10. The petitioner company has further stated that as there was recession in the market, installments were not paid in time. The Ujjain Development Authority from time to time to has informed the petitioner company the penal interest as well as the balance amount enabling the petitioner company to deposit the remaining amount. The contention of the petitioner company is that the Ujjain Development Authority in a most mechanically manner has passed an order, which is enclosed as Annexure-L at page 38 dated 29.3.2011 and by the aforesaid order an offer was given to the petitioner company to pay the amount of premium calculated afresh by taking into account the collector guidelines framed by the Collector in respect of payment of stamp duty for the year 2010-2011 i.e. Rs.8400/- per square meter. The petitioner company has further stated that a total sum of Rs.135828000/- was calculated towards premium and after taking the earlier amount of Rs.37625671.00/-, the company was directed to deposit a sum of Rs.98202329/-. The grievance of the petitioner company is that instead of granting breathing time to the petitioner company, on the basis of the guidelines of the year 2010-2011, they were directed to pay the amount in respect of the plot in question. The allotment of the plot in favour of the petitioner company was cancelled vide order dated 22.1.11 and the petitioner company has prayed for the following relief :- “i) set aside /quash the condition of 4 resumption of plot vide letter dated 29.3.11 subject to the condition of payment of present rates @ 8,400/- per Sq. meters failing which resumption shall be deemed to be cancelled/withdrawn, ii) set aside the letters of cancellation dated 22.1.2001 without payment at higher rates, iii) allow the present writ petition by directing the respondent authority to accept the balance payment of Rs.1,63,43,829/- alongwith interest @ 12 p.a. As mentioned in agreement dated 22.5.2008. iv) pass such other or further order as may be deemed fit and proper.” 4. A reply has been filed in the matter and the stand of the Ujain Development Authority is that the initial agreement was executed between the parties for allotment of plot on 31.7.2007 and thereafter second agreement was executed on 22.5.2008. The contention of respondent No.2 Ujain Development Authority is that as per terms and conditions of agreement dated 22.5.2008, the installment of Rs.8096412/- was required to be paid on or before 10.11.2008, 10.5.2009, 10.11.2009, 10.5.2010 and 10.11.2010. The stand of the authority is that the petitioner has not deposited a single installment of Rs.8096412/- as per scheduled and therefore, the amount deposited by the petitioner on 31.12.2008, 23.5.2009, 28.5.2009, 8.2.10, 23.2.10 and 20.5.10 will not amount as installments deposited by the petitioner as per terms and conditions of the agreement. It has also been stated that the respondents have taken into account regulation 25 of the Ujjain Development Authority. Regulations, which deals with the allotment and cancellation of land. As per regulations framed on the subject, they have made an attempt to revive the allotment of 5 petitioner by directing him to pay premium @ Rs.8400/- per square meter based upon the Collector guidelines fixed for the year 2010-2011. The respondents have also stated that the petitioner in spite of the fact that an offer was given to pay balance premium as directed by them, has not paid the balance premium and, therefore, the question of setting aside the order passed on 22.1.11 cancelling the allotment of the petitioner does not arise. 5. The contention of the respondent authority is that they have cancelled the allotment of the petitioner as installments were not deposited in time as per terms and conditions of the agreement by passing an order on 22.1.11 and thereafter they have undertaken the exercise of restoring the cancellation, keeping in view the regulations framed by the the Ujjain Development Authority and the petitioner was directed to deposit the premium by taking into account the guidelines fixed by the Collector for the year 2010-2011 i.e. @ Rs.8400/- per square meter. A letter was also issued to the petitioner on 29.3.11, however the petitioner has not deposited the amount as directed by the the Ujjain Development Authority vide letter dated 29.3.11 within a period of 30 days and, therefore, no relief can be granted to the petitioner. Learned counsel for the respondent No.2 the Ujjain Development Authority has prayed for dismissal of the writ petition. 6. A rejoinder has also been filed in the matter and the stand of the petitioner company is that the Ujain Development Authority at the 6 best could have charged additional interest as per terms and conditions of the agreement as well as penalty and damages and by no stretch of imagination they could have charged the premium by taking into account the guidelines framed by the Collector for the year 2010-2011. The petitioner company have also stated that the Ujain Development Authority by accepting installments from the petitioner from time to time have waived their right to cancel the allotment and, therefore, the order cancelling the allotment dated 21.2.11 as well as 29.3.11 deserves to be quashed. It has also been argued that by virtue of interim orders passed by this Court on 2.6.11 the petitioner company has deposited entire amount of premium and therefore, the impugned order dated 21.2.11 and 29.3.11 deserves to be quashed and the allotment of the petitioner company deserves to be revived. 7. Learned counsel for the petitioner company has placed reliance upon a judgment delivered by High Court of Allahabad in the case of Bihari Lal Vs. Radhye Shyam reported in 1951 Law Suit (All) 219 and his contention is that the acceptance on the part of the Ujjain Development Authority in the matter of payment of installments is nothing but an acceptance by performing the condition or receiving consideration and, therefore, keeping in view the provisions of Contract Act, 1872 the Ujjain Development Authority is now estopped from cancelling the contract between the parties. Learned counsel has aslo placed reliance upon a judgment delivered again by Allahabad High Court in the case of Ishaq Abdul Karim Vs. Madan 7 Lal, reported in 1965 AIR (All) 34 and his contention again is that as the the Ujjain Development Authority has accepted the installments, the acceptance is performing condition of the agreement and, therefore, the impugned orders are bad in law. He has also placed reliance upon a judgment delivered by the Apex Court in the case of Sardar Associates and Anr. Vs. Punjab and Sind Bank and Ors., reported in III (2009) BC 705 (SC). Learned counsel has placed heavy reliance on paragraph 31 of the aforesaid judgment and his contention is that keeping in view the aforesaid paragraph the Ujjain Development Authority cannot be permitted to charge the premium at the rate which are fixed for the year 2010-2011. Learned counsel has finally placed reliance upon a judgment delivered by the Apex Court in the case of State Bank of India Vs. Vijay Kumar (Civil Appeal No.1573 of 2007 decided on 26.3.2007), which was delivered again in a case arising out of proceeding before the Debt Recovery Tribunal. 8. Learned counsel for the respondent Ujjain Development Authority has argued before this Court that the present petition involves disputed question of facts and, therefore, it is a contractual dispute, the disputed question of fact cannot be looked into by this Court in this present petition and it is appropriate for the petitioner company to file a civil suit. He has placed reliance upon a judgment delivered in the case of R.K. Builders Vs. Municipal Corporation, Sagar and Ors., reported in 2003 (1) MPLJ page 148. He has also placed reliance upon a judgment delivered by the Apex Court in the 8 case of State of Bihar and Ors. Vs. Jain Plastics and Chemicals Ltd., reported in (2002) 1 SCC 216 on the ground of maintainability of the present writ petition as it involves disputed questions of facts. He has also placed reliance upon a judgment delivered by the Apex Court in the case of Defence Enclave Residents Society Vs. State of U.P. And Ors., reported in (2004) 8 SCC 321, wherein the Apex Court has held that the disputed contractual matters cannot be looked into by the Hon'ble Supreme Court under Article 32 of the Constitution of India. 9. Heard the learned counsel for the parties at length and perused the records. The matter is being disposed of with the consent of the parties at motion hearing stage itself. 10. In the present case, it is not in dispute that the petitioner company has submitted a tender for purchase of a plot pursuant to a tender notice issued by Ujjain Development Authority. The tender of the petitioner company was accepted and the initial agreement was executed between the parties for allotment of the plot on 31.7.2007. A second agreement was executed on 22.5.2008 as the area of plot was increased by 2940 square meter and the total consideration was worked out as Rs.54169500.00. The petitioner company as per terms and conditions of agreement dated 22.5.2008 was required to pay an installment of Rs.8096412.00 on or before 10.11.2008, 10.5.2009, 10.11.2009, 10.5.10 and 10.11.10. In the present case the reply of 9 Ujjain Development Authority reflects that the petitioner has not deposited a single installment as per the time schedule and therefore, by taking into account the terms and conditions of the agreement the Ujjain Development Authority has rightly arrived at a conclusion to cancel the agreement and the same was done in the present case. Regulation 25 of the regulations framed by Ujjain Development Authority deals with the allotment and cancellation of land and the Ujjain Development Authority was justified in cancelling the allotment of land keeping in view the aforesaid regulation. It is noteworthy to mention that the Ujjain Development Authority has also made an attempt to revive the allotment by directing the petitioner to pay premium @ Rs. 8400 per square meter by taking into account the rate fixed by the Collector as per the Collector's guidelines in respect of price of land for payment of stamp duty. The petitioner has not deposited the amount even as per the revival scheme and therefore is certainly not entitled for any relief. This Court has carefully gone through the judgments relied upon by the learned counsel for the petitioner company and is of the considered opinion that the petitioner company has not deposited the installment and violated the terms and conditions of the agreement, mere payment on the part of the petitioner company which was not in consonance with the terms and conditions of the agreement will not entitle the petitioner company for allotment of land in question. 11. Resultantly, the action of the Ujjain Development Authority in 10 cancelling the allotment does not warrant any interference. In the present case, though learned counsel for the respondent Ujjain Development Authority has argued before this Court that the present writ petition is not maintainable as it is a civil dispute, however this Court is of the considered opinion in the peculiar facts and circumstances of the case and in spite of the fact that it is a contractual matter the writ petition is certainly maintainable and this Court does not find any reason to interfere with the orders passed by the Ujjain Development Authority and the action of the Ujjain Development Authority is upheld. The writ petition is dismissed. 12. No order as to costs. ( S.C. SHARMA ) JUDGE skm