Case: M.D., H.S.I.D.C. &amp; Others Vs. M/s. Hari Om Enterprises &amp; Another

operating in the field. This Court, however, also put a note of caution that no order should be passed only on sympathy or sentiment. Doctrine of proportionality has since been applied in Sandeep Subhash Parate v. State of Maharashtra & Ors. [(2006) 8 SCALE 503] and Jitendra Kumar & Ors. v. State of Haryana & Anr. [2007 (14) SCALE 125 : (2008) 2 SCC 161 ]. 32. In State of Bihar and Others v. Kameshwar Prasad Singh and Another [(2000) 9 SCC 94] whereupon strong reliance has been placed by Mr. Jaspal Singh to contend that in a given case, this court may not exercise its discretionary jurisdiction under Article 136 of the Constitution of India even if the order is found to be illegal. This court was concerned with a service matter. It was held: "36. It is further contended that as the respondent was, in the meantime, appointed/promoted in the IPS cadre and as per requirements of the State Government he has already submitted his resignation from the State service, the acceptance of the appeal and setting aside the directions of the High Court would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the IPS cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. Once the judgment is set aside, the consequences have to follow and a person taking advantage or benefit of the wrong orders is to suffer for his own faults which cannot be attributed to anybody else. However, in appropriate cases this Court can mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the parties, appropriate directions can be given to protect the interests of a person who is found to have been conferred the benefits on the basis of judicial pronouncements made in his favour. As the appellant State has been found to be careless and negligent in defending its cases, we feel and are inclined to protect the interests of Brij Bihari Prasad Singh, respondent. We are convinced that the interests of justice would be served by holding that despite setting aside the judgments of the High Court, his interests be protected by not disturbing his promotions made from time to time. However, judgments passed in his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons who are shown to have filed writ petitions or representations which, if accepted, are likely to adversely affect the interests of more than 150 Inspectors and 400 officers in the rank of Deputy SP. Similarly, if any benefit has been conferred upon any other person who has superannuated, no useful purpose would be served by directing his demotion retrospectively and recovery of the excess emoluments paid to him." 33. Indisputably, the court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid down therefor. 34. We would consider the question about the balancing equities between the parties in each individual case. In a case of this nature, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may also consider rendition of individualized justice. [See Shyam Nandan Prasad and Others v. State of Bihar and others (1993) 4 SCC 255 ]. Our attention has been drawn to the fact that the Punjab High Court in some of the matters in Jaisy Designs v. MD. HSIDC [decided on 4th July, 2006] had issued similar directions. A Bench of this Court, however, dismissed the special leave petition being SLP (C) No. 12074 of 2006 by an order dated 7.08.2006. 35. However, another Bench of this Court in Civil Appeal arising out of SLP (C) No. 20235 of 2007, presumably, without noticing the said order directed issuance of notice by an order dated 4.12.2006. Following the said decision, even other Benches had issued notice in other matters including Civil Appeal arising out of SLP (C) No. 14074 of 2006. 36. Reliance has been placed on State of Kerala and Others v. P.T. Thomas [(2005) 12 SCC 347] where this Court having regard to the orders passed in number of cases in regard to payment of interest dismissed the appeals inter alia taking into consideration the said factor. However, in P.T. Thomas (supra) it was not the sole consideration. This Court noticed that payment of interest was not an issue in the main writ petition and that was the principal reason in dismissing the appeal. We have noticed hereinbefore that in Kameshwar Prasad Singh (supra), this court made a clear distinction between an order which is illegal and, thus, the order being illegal the benefit thereof would not be extended to persons similarly situated on the premise that Article 14 is a positive concept. 37. In the instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of the matter. We, therefore, are of the opinion that on the said ground alone, we would not refuse to interfere. 38. In Civil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part of contract. It was submitted that even the doctrine of proportionality is applicable in these cases in view of the decision of this Court in Teri Oat Estates (P) Ltd. (supra). 39.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Allotment of industrial plot keeping in view the object and purport for which the Corporation had been constituted and incorporated must be held to be a governmental function. In a case of this nature where the aim and object of the Corporation as also the State is to encourage industrialization while adjusting equity, the purpose for which the Scheme was made would be a relevant factor. Only because allotment of land has been effected through a letter, the same by itself does not make such allotment and/ or the provisions contained therein to be matters within `private law domain asfrom `public law domain. The State exercises deep and pervasive control over the activities of theparties themselves agreed that despite the fact that the Corporation is a juristic person, an appeal against its decision shall lie to the Financial Commission of the State. Indisputably, the function of the appellant is a sovereign function. It, in any event is a State, within the meaning of Article 12 of the Constitution of India. Its action, therefore, must be fair and reasonable so as to sub serve the requirements of Article 14 of theletter of allotment dated 10.01.2001 indisputably sets out the terms and conditions thereof. But, the same is not exhaustive. The terms and conditions were supplemented by the Corporation itself in its letter dated 20.12.2001 when offer of handing over physical possession was made, by reason whereof not only a period of two years was provided for deposit of installment along with interest at the rate of 18% per annum but also a provision had been made that in the event of failure to adhere to the schedule enumerated therein, penalty equivalent to 10% of the amount due would be levied. It was furthermore laid down that in the event of failure of the `firm to pay the amount penalty within the prescribed period, the plot would be liable for resumption. The terms and conditions of letter of allotment would clearly show that resumption of the plot is nota State takes penal action against the allottee, its bona fide would be one of the relevant factors before an order of resumption and forfeiture of the amount deposited is passed. The particulars contemplated in the letter of allotment as also the letter of offer of possession and the procedures laid down therefor were required to be scrupulously complied with. The letter of allotment as also the letter of offer of possession must be read conjointly. The very fact that not only the amount specified therein was required to be paid in instalments but also with interest at the rate of 18% per annum, was required to be borne in mind. Thus, in a case where the allottee had complied with the terms of allotment in the matter of payment of instalments, the same would be a relevant factor for exercising the enabling clause of resumption by a `State. Not only that, a further opportunity was required to be given to the allottee even if there was some default on its part inasmuch as the appellant itself provides for levy of penalty. The power of resumption, thus, must be resorted to only in a case where despite grant of the opportunities contemplated in terms of the letter of intent wereissuance of letter of offer of physical possession dated 20.12.2001, the fact that actual possession had not been handed over for a period of two years is not in dispute. The Corporation did not say that actual possession was not taken by the respondent despite offer having been made in that behalf. It, in its anxiety to set a time limit for ensuring that the commercial production starts at an early date, was expected at least to send a reminder. It failed and/ or neglected to do so. For the purpose of approval of the building plan, the time taken by it also would have been a relevant factor for passing an order ofalthough do not intend to lay down a law that all the aforementioned period should be excluded from computation for the purpose of grant of notice of resumption, but there cannot be any doubt whatsoever that while judging the conduct of the parties, the appellant was obligated to judge its own conduct in thethe provisions of the aforementioned Act are not applicable in the instant case, Jagdish Chand (supra) is being referred for showing that when two remedies to enforce a contract are available, the power should be exercised in reasonable manner. So construed, a harsher remedy may not ordinarily be resortedHigh Court, in our opinion, has notthe contract nor waived the rights and obligations of thethe court can balance the equities between the parties but the same does not necessarily mean that in all cases this Court should refuse to exercise its discretionary jurisdiction. Each case must be considered on its own merit and no hard and fast rule can be laid downthe instant case, the High Courts jurisdiction is in question. The learned counsel for the parties have addressed us at great length on the individual merit of thetherefore, are of the opinion that on the said ground alone, we would not refuse toCivil Appeals arising out of SLP (C) No. 17426 of 2006, no opportunity had been given to the appellants to file counter affidavit. Even the High Court had proceeded on the basis that equity demands that they should be given some extension of time to perform their part ofagree with the High Court that Clause 3 of the said offer of the order of allotment dated 18.07.2003, on the one hand, and Clauses 4 and 5, on the other, are irreconcilable. Payment to be made under Clause 3 cannot be subject to the stipulations contained in Clauses 4 and 5. They are independent of each other. The allottee in terms of Clause 3 had an option. Mode of payment in terms of Clause 3, on the one hand, and Clauses 4 and 5, on the other, are distinct and different. However, the High Court was not correct when it directed thatof land would be subject to the final decision of the case. Cancellation of plot as also reallotment thereof had been made in June 2004. The writ petition was filed in July,reason of the judgment of the High Court, the right of a third party has been affected. He without having been impleaded as a party in the writ petition cannot suffer an adverse order for which he is no way responsible. A statement has been made before us by the learned Additional Solicitor General that no residential plot is available for allotment. He, however, submits that as and when such a plot is available, the same would be offered to the respondent. We may place on record the aforementioned submission. However, we feel that the respondents were not to be blamed for not depositing the amount. Invocation of Clause 4 is clearly illegal. We, therefore, are of the opinion that the respondent should be suitably compensated on monetary terms. We direct the appellants to pay a sum of Rs. 1,00,000/to the respondents herein. We, however, also direct that keeping in view the statements made at the Bar, as and when any residential plot becomes available, the same should be allotted to the respondents on the sameis a clear case where the respondents have failed to abide by any of the terms of contract. It did not deposit even the initial amount in time, there was no reason for it not to do so. Even interest payable on the said amount had not been paid. The appeal should, therefore, bethis case, the respondent has clearly been discriminated against. Appellants action is clearly unfair and unreasonable. In any event, it has waived its right. Furthermore, it was a case where the principles of natural justice should have been compliedHigh Court in, this case, in its impugned judgment has taken care to see that the object for grant of allotment were fulfilled being promotion of industrial growth. Applying the principles of law as indicated hereinbefore, we are of the opinion that no case has been made out for our interference with the impugnedhad already appointed an architect for construction of the building. It had already started constructions. The fact that it was the Department which did not grant any license. The Appellate Committee, however, did not consider this aspect of the matter at all and thus the appellate orders suffered from totalhe High Court while allowing the petition quashed the resumption order and directed the respondent to complete the construction of the industrial building within a period of six months from the date of offer of the possession of theall these cases, it is difficult to uphold the order of the High Court. But a general offer was made by the learned Additional Solicitor General that those who intend to obtain reallotment of plot may do so on payment of the price as per the current rate as on the date of the order of the Highus, several allottees had categorically made a statement that they are ready and willing to pay the prevailing price as fixed by the appellantCorporation. Keeping in view the facts and circumstances of this cases, we are of the opinion that in the event, respondents offer the prevailing price as on the date of judgment of the High Court, the plot, in question, shall standand should be subject to the same terms and conditions. Such reallotment may be made even in cases where we have found the order of the High Court to beshall deposit the amount within six weeks from date. Appellant shall hand over the possession of the plot, in question, within four weeks thereafter. The highest executive of Appellant – Corporation shall see to it that the order of this Court is complied with. It is, however, made clear that in the event of failure on the part of the respondents concerned in making payment in terms of this order, it would be open to the appellant to take recourse to such action as is permissible in law.