IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.09.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.24304 and 26459 of 2009 and M.P.Nos.1 and 1 of 2009 M/s.Search Corporation, rep by its Sole Proprietor, Nithin Shah, No.1,Smith Road, Chennai-600 002. .. Petitioner in both writ petitions Vs. 1.State Industries Promotion Corporation of Tamil Nadu Limited, 19-A,Rukmani Lakshmipathy Road, Egmore, Chennai-600 008 rep by its Chairman and Managing Director. 2.The Senior Project Manager, State Industries Promotion Corporation of Tamil Nadu Limited, SIPCOT IT Park, Padur Post, Siruseri-603 103 Kancheepuram District. 3.The Estate Officer, State Industries Promotion Corporation of Tamil Nadu Limited, SIPCOT IT Park, Padur Post, Siruseri-603 103 Kancheepuram District. .. Respondents in both writ petitions W.P.No.24304 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent culminating in his proceedings No.PO/SITP/Siruseri/SC/08, dated 11.11.2009, quash the same and to forbear the respondents from in any manner interfering with the peaceful possession and enjoyment of the property being plot bearing No.6/B-10 measuring 0.44 acres at SIPCOT IT Park, Siruseri situated in Survey No.240 Part. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.26459 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent culminating in his proceedings No.D-II/SITP/SC/06, dated 23.11.2006, quash the same and to forbear the respondents from in any manner interfering with the peaceful possession and enjoyment of the property being plot bearing No.6/B-10 measuring 0.44 acres at SIPCOT IT Park, Siruseri situated in survey No.240 Part. For Petitioner : Mr.A.K.Sriram for M/s.A.S.Kailasam and Associates For Respondents : Ms.Narmadha Sampath for SIPCOT COMMON ORDER Both writ petitions are filed by the same company. In the first writ petition, the petitioner company is challenging an order dated 11.11.2009 issued by the Estate Officer, SIPCOT Project Office at Siruseri under Section 5 of the Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975 notifying the petitioner that they will be evicted from plot No.6/B-10 measuring 0.44 acres at SIPCOT Information Technology Park, Siruseri. In the writ petition, private notice was ordered to the respondents and an interim stay was granted for a limited period. Subsequently, the interim stay was extended on 7.12.2009, 19.12.2009 and 05.01.2010. 2.It is at this stage, the petitioner filed the second writ petition in W.P.No.26459 of 2009. Hence the earlier writ petition was directed to be posted along with the second writ petition. The original stay granted was continued to be extended by a further order, dated 27.1.2010, 10.2.2010, 4.3.2010, 18.3.2010 and 5.4.2010. On 5.4.2010, the stay was extended without limiting its operation and a liberty was given to the respondent SIPCOT to file a counter and ask for vacating the stay application. 3.The respondent SIPCOT has filed a counter affidavit, dated 27.8.2010 in both writ petitions. In the second writ petition, the petitioner realizing that he cannot challenge the eviction notice without challenging the earlier order dated 23.11.2006, wherein the allotment of plot to the petitioner was cancelled and the initial deposit made by them was forfeited and they were also directed to execute the cancellation deed within 15 days, he seeks to set aside the same. In the affidavit filed in support of the writ petition, the petitioner company did not explain the three years delay in moving the court and on that ground, the writ petition is liable to be rejected. In any event, Mr.A.K.Sriram, learned counsel for the petitioner contended that there has been correspondence between the parties as enclosed in the typed set and that was why the cancellation was not challenged. Since the outcome of the first writ petition W.P.No.24304 of 2009 is depending upon the outcome of W.P.No.26459 of 2009, arguments were addressed in the second writ petition. https://hcservices.ecourts.gov.in/hcservices/ 4.The facts leading to cancellation of plot allotment and the subsequent notice under the Public Premises Act are as follows: The respondent SIPCOT had developed a SIPCOT Industrial Park at Siruseri and plots were allotted to various applicants with a condition that they should put up construction and carry out developmental activities within a time frame. Pursuant to the allotment letter, the allottees will have to enter into a lease deed, take possession and commence the construction and also to complete the same so as to start the commercial production. It was also indicated that any violation will result in cancelling of the allotment. On the basis of that conditions, the petitioner was allotted an industrial plot in No.6/B-10 measuring 0.44 acres based on the application made by them on 11.2.2005. The petitioner had executed a lease deed on 16.2.2006 agreeing the terms and conditions contained therein. The plot price comprised of land cost and development charges. The petitioner had remitted the plot cost on 6.5.2005 and they are bound to execute the lease deed within 30 days from the date of remitting the plot costs. But the petitioner did not execute the same within the stipulated time. Subsequently the plot cost was revised and the balance was demanded from the petitioner. Subsequently, the said order was cancelled by a letter dated 8.2.2006. The petitioner had executed a lease deed on 16.2.2006 and took possession of plot on 27.2.2006. But since they did not proceed with the construction, a show cause notice dated 14.6.2006 was issued to him. The petitioner gave a reply dated 21.6.2006. By a letter dated 9.8.2006, the petitioner was asked to come for a discussion, but they did not turn up and no person from the company was sent. Therefore, cancellation of allotment was made on 23.11.2006. 5.Since the petitioner did not execute the cancellation deed, proceedings were initiated under the Act. The Village Administrative Officer, Siruseri took possession of plot on 26.11.2009. It is at that stage, the petitioner moved the earlier writ petition and had obtained an interim order against eviction. It was claimed by the respondent that the order was received by them only on 9.12.2009. It was contended that the relationship between the petitioner and the respondent is purely contractual and that against the cancellation of allotment, no writ petition can be filed. The terms of allotment have been subsequently entered into by way of lease agreement with specific condition that in case of any violation of condition, it is open to the respondent to cancel the allotment and take possession. 6.In the lease deed signed between the petitioner and the respondent SIPCOT, dated 16.2.2006, the following conditions are relevant, which reads as follows: "14(i) If, in the opinion of the Party of the First Part, it is found that the land allotted to the Party of the Second Part is not put to use for the purpose for which it was allotted or is in excess of the actual requirements of the Party of the Second Part for the https://hcservices.ecourts.gov.in/hcservices/ purpose for which it was allotted, the Party of the First Part shall at any time have the right to cancel the allotment in respect of such land or excess land, as the case may be, and resume the same under the provision of TNPPE Act. In the event of resuming excess land by the party of the first part, the plot deposit and development charges and additional development charges collected from the Party of the Second Part will be suitably modified and refund of the plot deposit alone if any, due to the Party of the Second Part will be made. Development charges, additional development charges, Lease rent, interest and enhanced interest, if any already paid or due, will not be subject to any refund or modification in such an event. 14(iii) Providing of infrastructure facilities by the First Part, is an ongoing scheme for the overall development of the Park and the expenditure thereon would be incurred over a period of time till the completion of the Park..... 17.The allottee shall commence commercial production/trial production within 30 months from the date of allotment order. Failure will entail cancellation of allotment and forfeiture of total amount paid towards the extent allotted. 18.The party of the second part shall have to commence Construction of buildings within six months from the date of allotment order and be completed within 24 months from the date of allotment order. Before commencing such construction of works on the allotted plot, the allottee should strictly follow the following building regulations prescribed, among others. 32.The Party of First Part shall have the power to grant extension of time, subject to such conditions as may be imposed to the Party of Second Part in all matters, which are required to be done or completed within the prescribed time, under this deed. 35.During the currency of the lease, any question of dispute or difference in relation to or in connection with the terms of the lease deed shall not be raised by the Party of the Second Part and, if at all raised, such question of dispute or difference shall be referred to an arbitrator appointed by Government of Tamil Nadu. 36.Only the Courts situate in the City of Chennai shall have jurisdiction to decide upon any dispute or litigation between the parties to this lease deed. https://hcservices.ecourts.gov.in/hcservices/ 38.The Party of the First Part reserves to itself the right to sell, lease or otherwise deal with any land unleased or unsold, in any manner it deems suitable. It reserves the right to release, waive, modify either wholly or in part, alter any stipulations, obligations and restrictions contained in this deed regarding any plot or other area in the property. The exercise of this right by the Party of the First Part in relation to any such plot or area shall not release the lessee or/ purchaser(s) of any other plot in this property from any of the stipulations, obligations and restrictions, affecting and imposed upon the said allotted plot, nor give rise in favour of any lessee or purchaser to any right of action against the party. 40(b)If the Party of the Second Part falls to comply with any of the terms and conditions of lease deed, the Party of the First Part reserves the right to cancel the allotment and resume the land under TNPPE Act. The Financial Institutions/Banks to whom Party of the First Part issues NOC for creating mortgage will be notified with a notice of 90 days to take remedial action." 7.On 10.3.2006, the Senior Project Manager had addressed a letter to the Chairman cum Managing Director, SIPCOT stating that the plot was allotted to the petitioner Corporation for a value of Rs.7,04,000/- towards plot costs and development charge. But the road at a length of 120 meters at the junction of plots 10 - 8 at a cost of Rs.10 lakhs was to be laid by the SIPCOT. Therefore, during the review meeting, the Senior Project Manager had suggested to CMD to allot land bank area of 0.71 acres as indicated in the sketch enclosed to the petitioner unit to avoid laying the above road at a cost of Rs.10 lakhs. In the event of such extra land allotted to the petitioner, the petitioner company can use the existing road at junction No.7. It is noted that the Chairman cum Managing Director had also agreed to the suggestion with a condition that allotment should be made at the then current price of Rs.30 lakhs. The Proprietor of the petitioner unit had also agreed to by the additional area with the current price. A copy of the communication was also marked to the petitioner. 8.In the meanwhile, the respondent by a notice dated 14.6.2006 pointing out condition No.18 of the lease deed, asked for a show cause within 30 days as to how they have not complied with the condition commencing the construction and failure to show cause will result in cancellation of allotment and further proceeding with eviction under the Public Premises Act. The petitioner in response to the notice informed the respondent that they are ready to start the construction, but they cannot do so because the road No.10 leading to the plot is not ready. In the absence of any road laid leading to plot, carrying the work is not possible, but yet they are proceeding with other formalities. They also requested the respondent to inform the probable period by which completion of laying road, so as to enable them to start construction. The https://hcservices.ecourts.gov.in/hcservices/ respondent SIPCOT by a communication, dated 13.7.2006 had stated that temporary approach to the plot was formed by the SIPCOT. Therefore, they should start with construction and that the pacca road will be provided in due course. Immediately, the petitioner informed by a communication, dated 28.7.2006 that they are planning to start the work at the site. This letter was sent to the Senior Project Manager. The petitioner also sent a communication to the respondent stating that the access road leading to plot is not ready and even the temporary approach road which is claimed to have been inspected by the construction personnel found that no equipment could be moved and without that the construction was not possible. Therefore, they had requested the respondent to lay the road. They had also obtained necessary building plan in commensurate with the CMDA requirement. In the meanwhile, the impugned order dated 23.11.2006 came to be passed stating that clause No.18 of the lease deed as well as allotment condition Nos.3.7 and 3.8 were violated. Inasmuch as they have not commenced the construction within 6 months and not completed the construction within 24 months on the date of the allotment order. 9.It is at this stage, the petitioner did not move the court and for nearly 1-1/2 years, there was no activity between the parties. It is only thereafter, the Estate Officer on 21.4.2008 after a period of 18 months, had sent the show cause notice asking the petitioner as to why an order of eviction should not be passed against them under the provisions of Tamil Nadu Public Premises (Eviction of Unauthorised Occupants) Act, 1975. The petitioner had sent a reply dated 12.5.2008 stating that even as on date the plan was ready for construction and the undue delay was due to non formation of road and also to get the approval plan sanctioned from the CMDA. Even on the date of reply, they were ready to start the construction with the additional adjacent land, which was allotted to them as suggested by the Senior Project Manager by letter dated 10.3.2006. Once again, the respondent informed the petitioner that since they have violated the condition of allotment, the allotment has been cancelled. By a further letter dated 4.7.2008, they were directed to surrender the plot to the Estate Officer. In reply to the same, the petitioner sent a reply dated 10.7.2008 to the General Manager, SIPCOT that they are the first generation entrepreneurs and they really want to put up an IT unit in the allotted site and it will generate employment to at least 100 to 200 IT professionals. They have also submitted the building plan dated 21.11.2006, but the project could not take up as there was no road leading to the allotted site. Road No.10 leading to the plot was not made ready even as per their own map. A further letter dated 1.9.2008 was also sent stating that they have also submitted the plan to the Commissioner for Village Panchayat Union, Thiruporur for necessary approval and they will develop the facilities within 12 to 18 months. The project progress chart was also enclosed. Thereafter, they will commence the commercial production. 10.In the meanwhile, the respondent by a letter dated 11.5.2009 informed the petitioner that new road to a length about https://hcservices.ecourts.gov.in/hcservices/ 1.65 Kms on one side was also laid and opened for traffic. The SIPCOT assured that the petitioner was enjoying the infrastructure in the form of road facility created under the scheme and all companies in the IT park were directed to contribute the sharing cost of Rs.8 Crores which worked out to Rs.1.70 lakhs per acre. The petitioner's share was Rs.74,800/- and it was expected to be paid by March, 2009. Since the petitioner is yet to pay the amount, they were directed to pay the amount on or before 31.5.2009 positively. The petitioner sent the amount of Rs.74,800/- in favour of SIPCOT with a covering letter dated 26.5.2009. A copy of the pay order was also enclosed in the typed set and the receipt furnished by the SIPCOT was also enclosed. In the in the meanwhile, the Estate Officer of the SIPCOT had issued a notice dated 24.8.2009 once again asking to show cause as to why they should not be evicted. The petitioner sent a detailed representation dated 14.9.2009 and set out the circumstances under which there was delay in construction. They have also informed that since necessary infrastructure was not available, the construction was delayed. In the meanwhile, the respondent informed the petitioner by a communication, dated 7.10.2009 that they should attend an enquiry relating to eviction proceedings on 26.10.2009. It was thereafter, by the impugned order dated 11.11.2009, the eviction was ordered and they are intimated that possession will be taken in case they did not surrender the plot. 11.From the long narration of the correspondence between the parties, two things are very clear that in the lease deed, dated 16.2.2006, necessary conditions have been incorporated, failure of which will result in cancellation of plot and reception of plot. In any dispute, the normal course is for having arbitration between the parties as contemplated under clause No.35. But in the present case, after allotment letter dated 11.2.2005, the lease deed was executed only on 16.2.2006. Though under clause No.18, a condition has been laid to commence the construction of the building within 6 months from the date of allotment order, in the present case, that was impossible because between the allotment and lease deed itself, there was a gap of one year. Secondly, immediately after the execution of the lease deed and taking possession, it was found that the respondent has to lay the road at a length of 120 meters at the road junction 10-8 to the plot and that involved cost of Rs.10 lakhs as intimated by the Senior Project Officer after a review meeting held by the respondents. Subsequently, the petitioner has been insisting of laying down the road. Even though a proposal was mooted that in order to have the SIPCOT avoiding putting road, the land bank area of 0.71 acres can be allotted to the petitioner at the cost of Rs.30 lakhs, to which the petitioner was ready and willing, but there was no response from the respondent. In the letter dated 19.7.2006, the Senior Project Manager claimed that temporary approach was formed to reach the plot, whereas the respondent, after inspection by their construction team, had informed that no equipment could be moved on the temporary approach, for which there was no reply from the respondent SIPCOT. Lastly, the respondents themselves asked for extra payment for formation of a new road at the length of 1.65 kms https://hcservices.ecourts.gov.in/hcservices/ on one side which was opened for traffic and claimed pro rata contribution. The petitioner's contribution was Rs.74,800/- for having 0.44 acres which was also paid by the petitioner on 26.5.2009. 12.While on one hand, there was correspondence regarding providing for necessary minimum infrastructure to reach out the construction equipments to the plot allotted to the petitioner, on the other hand, proceedings were initiated for cancellation of allotment and also to evict the petitioner under the Public Premises Act. It is strange that the office of the respondent SIPCOT was functioning on parallel lines and in order to avoid the long correspondence, the Chairman-cum-Managing Director of the SIPCOT should have direct meeting with the allottees and sorted out the matter without driving the parties to any litigation. In normal circumstances, it is not for this court to interpret the terms and conditions of allotment. But at the same time, the respondents should not have behaved in unreasonable fashion. 13.In the counter affidavit filed by the respondents, the contention raised was that there was no necessity to provide any road and most of the basic infrastructure facilities were provided. They had also relied upon clause 14(iii) to state that there will be an ongoing scheme for the overall development of the IT park. The fundamental question in the present case was while putting up condition for commencing construction within 6 months from the date of allotment order, it had become impossible because of not executing the lease deed simultaneously and also to complete the construction within 24 months. It has also become impossible because of the approach road not being available for taking the construction equipment. The respondents cannot seek for cancellation of allotment of plot and also reception of plot by having recourse to Public Premises Act. 14.There is a clause for arbitration under the lease deed. But since the writ petitions have been admitted and continuously interim orders have been extended in the absence of the respondents not filing counter affidavit, at this stage the court cannot send the petitioner for availing alternate remedy. In this context, it is necessary to refer to a judgment of the Supreme Court in S.J.S. Business Enterprises (P) Ltd. v. State of Bihar reported in (2004) 7 SCC 166 and in paragraph 14, it was observed as follows: "14.Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable (sic), the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 https://hcservices.ecourts.gov.in/hcservices/ will consider for exercising the discretion to issue a writ under Article 2265. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orissa6 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 327. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 2268. Therefore, the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits." 15.In the very same judgment, the Supreme Court also held regarding fairness