TaxTMI 
TaxTMI 
2014 (4) TMI 1279
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....r rendered in Writ Petition No. 2937 of 2009. The Writ Petition has been disposed of along with Review Application MCC No. 99 of 2009 and MCC No. 893 of 2008 as well as Contempt Petition No. 469 of 2008. The writ petition has been disposed of with certain directions. Whereas the aforesaid Contempt Petition and the two Review Petitions have been disposed of in view of the order passed in Writ Petition No. 2937 of 2009. 3. The relevant facts leading to the filing of the aforesaid SLP are as follows: 4. In 1979, Respondent No. 2/Madhya Pradesh Road Transport Corporation (hereinafter referred to as "MPRTC") proposed to construct a bus stand at Vijay Nagar, Indore. To this end, an Agreement for Lease dated 2nd November, 1981 was entered into between the Transport Corporation and Respondent No. 5/Indore Development Authority (hereinafter referred to as "IDA"), by which the land belonging to IDA, admeasuring 10 acres situated at Vijay Nagar, Indore (hereinafter referred to as "proposed site") was agreed to be allotted to the Transport Corporation, initially, for 30 years. In pursuance of the Lease Agreement, possession of the proposed site was handed over to the MPRTC. 5. The Cou....
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....ing structure on the land; to be replaced by the commercial complex. On 11th May, 2004, the State Government issued a notification, in exercise of powers Under Sections 35(2) and 35(3) of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as "Adhiniyam"), by which out of 10 acres of land at Vijay Nagar which had been earmarked for the bus stand (proposed site), 3.59 acres of land was permitted to be used for commercial purposes. 9. On 14th May, 2004, the Appellant requested the MPRTC to hand over the possession of the proposed site, so that the structure existing thereon could be demolished and new bus stand-cum-commercial complex could be constructed, in accordance with the terms and conditions of the tender/agreement. 10. On 27th May, 2004, a lease deed was executed in favour of MPRTC by the IDA upon payment of Rs. 24,27,052/- by the Appellant. This payment was made by the Appellant in order to let the Transport Corporation pay its arrears to IDA. Subsequently on 24th June, 2004, IDA gave a No Objection Certificate ("NOC") to the MPRTC for the proposed BOT project. Also, the Deputy Director, Town and Country Planning granted approval to the ....
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....depositing entire amount the Respondent shall handover the vacant possession to the Petitioner, within two weeks, with a permission, to demolish the structure as per the agreement. Respondent shall also pursue the matter with the Municipal Corporation to handover all part of the premises, which is in their occupation. iii. Respondent shall deposit the map for sanction before the competent authorities immediately, if not submitted, so far. In case the map has already been submitted the Respondent shall give the authority to the Petitioner, to pursue the matter before the competent authorities for obtaining the permission and shall extend all the assistance for the purpose of obtaining permission. iv. After taking possession, the Petitioner shall construct and hand over the construction property to the Respondent as per terms of the tender notice/agreement. v. The competent authorities shall consider the application of the Respondent for permission and shall grant the permission in accordance with law. The Appellant deposited Rs. 2,95,03,752/- towards premium and a further sum of Rs. 27,53,536/- towards interest to the MPRTC, in terms of the aforesaid or....
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....commercial complex, was one of the properties seized by the State Authorities on 19th July, 2005. Since the possession was already taken by the State, no direction for delivery of possession to the Appellant could have been issued on 5th August, 2005. These facts could not be placed before the High Court, as the State was not impleaded as a party in Writ Petition No. 636 of 2005. 19. Thereafter, Appellant moved I.A. No. 7064 of 2006 in the Contempt Petition before the High Court to implead the Transport Department-Respondent No. 2 herein, as a Respondent in the Contempt Petition. This I.A. was allowed by the High Court by order dated 6th October, 2006. During the course of hearing of this Contempt Petition, Appellant moved another I.A. No. 6906 of 2007, seeking a direction to the Respondents to place on record the following: 1(a) On what date and which inward number the order of the government directing the RTO, Indore to attach the MPSRTC Property at Indore was received by RTO, Indore pursuant to which the so called attachment dated 9.7.2005 was made. 1(b) On what date, by which letter number and under what dispatch number the fact of attachment and acquisitio....
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.... the Chief Secretary was drawn to the pendency of the review petitions filed by the State of Madhya Pradesh and the MPRTC; and the Contempt Petition filed by the Appellant and the order passed therein, whereby status quo was ordered to be maintained. 23. In spite of the aforesaid representation, Respondent No. 1 held the meeting on 4th March, 2009 as directed by the High Court, wherein it was inter alia decided as under: I. Order dated 02.11.2007 and notice dated 30.06.07 for cancellation of lease of the land in question of the Transport Corporation by the I.D.A. be cancelled. II. R.T.O. be ordered for releasing the land by the Transport Department for attachment. III. The M.P. Road Transport Corporation shall hand over land in question to I.D.A. IV. The amount which has been received by the Transport Corporation from Sh. Ram Builders shall be returned along with interest to Sh. Ram Builder. V. Decision with respect to further use and management of the land shall be taken by I.D.A. 24. Aggrieved by Clause (III), (IV) and (V) of the aforesaid decision, Appellant preferred Writ Petition No. 2937 of 2009 before the High Court of Madhy....
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....in Paragraph 15 of the impugned judgment, which has been reproduced above, was not even supported by the Respondents. The first reason given by the High Court is that the Order dated 5th August, 2005 in Writ Petition No. 636 of 2005 can not be implemented after cancellation of lease deed by the IDA. This, according to the learned senior counsel, is without any basis as by the order dated 22nd February, 2009, the Chief Secretary had cancelled the lease deed. Therefore, the order dated 2nd November, 2007 having been nullified, the lease in favour of MPRTC revived. This would also revive the application of MPRTC to cull the agreement with the Appellant. The second reason given by the High Court, according to Mr. Nariman and Mr. Patwalia is that the order dated 11th December, 2007 passed in Writ Petition No. 6770 of 2007 was not challenged by the Appellant, can not be supported in law. It is pointed out by the learned senior counsel that the aforesaid writ petition was filed by MPRTC challenging the order of cancelling the deed in its favour by the IDA. The Appellant was not at all involved in the aforesaid lis. In any event, the High Court had not passed any order on merits. It had me....
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.... Meghmala and Ors. v. G. Narasimha Reddy and Ors. (2010) 8 SCC 383 (Paras 25 and 26). Similarly, the Review Petition MCC No. 893 of 2008 is not maintainable for the same reason. In any event, the Review Petition was not decided on merits, which was disposed of in view of the impugned order passed in the Writ Petition with regard to the cancellation of the lease. 31. Thereafter, very detailed submissions have been made on the construction of the lease deed. However, it must be noticed here that the manner in which these submissions have been advanced before us bear no resemblance to the manner in which these submissions were made before the High Court. 32. Mr. R.F. Nariman has also submitted that the term of lease has to be understood to have commenced from 26.05.2004, when the IDA executed a formal lease in favour of MPRTC. Further, learned senior counsel submitted that the possession of the site in terms of the lease cannot be held to be given on 22.1.1982, when the agreement to lease was executed. It was further submitted that where a literal reading of the lease leads to an absurdity, the court has the power to read it reasonably. Such a reasonable reading, according to Mr....
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....s also contended that commercial exigencies can never lead to frustration. Reliance was placed upon Pollock and Mulla, 14th Ed. Pgs. 887-889. 36. Mr. Nariman also submitted that the submission of the IDA that the Appellant has no privity of contract with the Petitioner is not correct. Further, the submission of the IDA that the Agreement to Lease was only for a bus stand and no permission was granted by the IDA to MPRTC for constructing a commercial project has been submitted to be incorrect by Mr. Nariman. Another factual submission advanced by the Appellant is that the submission of the Respondents that MPRTC is being wound up is not correct. 37. Lastly, Mr. Nariman contended that on the balance of equity, the MPRTC ought to be directed to comply with the directions of the High Court contained in order dated 05.08.2005, and put the Appellant in possession of the plot. 38. Mr. J.P. Cama, learned senior counsel appearing for the 5th Respondent-Indore Development Authority has submitted that by an agreement dated 2nd November, 1981, IDA entered into a lease in respect of 10 acres of his property situated in its Scheme No. 54 at Indore in favour of MPRTC. Possession of the l....
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....allotment from prospective buyers. The MPRTC had only been given NOC for completing the bus stand and the commercial-cum-residential complex on B.O.T. basis. MPRTC had no legal right, being a sub-lessee higher than the lessee. The next submission of Mr. Cama is that MPRTC has completely wound up its operations; they have sold all their buses. Therefore, it can not be compelled to get the bus stand constructed from the Appellant. Countering the submission of Mr. Nariman and Mr. Patwalia, he submits that the order of the High Court dated 5th August, 2005 directing MPRTC to hand over the possession to the Appellant can not be relied upon by the Appellant, the said order has not become final inasmuch as: (i) IDA was not a party in the said proceedings; (ii) The HC had not decided the matter in relating to lease of the IDA (iii) State Govt. had filed recall application - which was pending disposal before HC (iv) Even MPRTC filed a recall application wherein they pleaded that the entire order was based on the statement made by their counsel that they are not in a position to pay Sri Ram builders, however they made a statement, in recall application tha....
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.... on 21st January, 2012. With regard to the renewal of the lease, it is submitted that even such renewal is on specific sanction of the IDA and the State Government. He submits that the concept of extension of the lease is distinguishable from the concept of renewal. In support of this submission, Mr. Cama relies on Hardesh Ores (P) Ltd. v. Hede and Co. (2007) 5 SCC 614 (Pages 627 & 628). He submitted that the agreement of lease used both words extension and renewal but extension is always made subject to renewal. Mr. Cama further pointed out that Order dated 5th August, 2005 has not become final and binding on all parties on the dismissal of the SLP filed by the MPRTC. The aforesaid SLP was dismissed in limine. Therefore, the judgment of the High Court can not be said to have merged with the order of this Court. In support of the submission, Mr. Cama relies on Kunhayammed and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359 and Gangadhara Palo v. Revenue Divisional Officer and Anr. (2011) 4 SCC 602 (Para 7). 42. With regard to the submission relating to the order passed by the Chief Secretary, Mr. Cama submits that the Appellant has to either accept or challenge the order in to....
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....he plot and the lease of the plot shall commence from the date irrespective of the fact "whatsoever, possession of the plot has been taken or not and the lessee shall pay all rates and taxes where leviable the owner or the lessee from the date. 46. On 24th June, 2004, IDA gave its no objection for bus terminal-cum-commercial complex to be constructed under the BOT Scheme. On 18th December, 2005, the State Government decided to wind up the MPRTC. The proposal of the State Government was not approved by the Ministry of Shipping and Road Transport, Government of India. On 17th November, 2008, a letter was issued informing the State Government that the Ministry of Labour had declined to grant permission for closure Under Section 25O of the Industrial Disputes Act, 1947. On 5th August, 2005, the directions were issued by the High Court in the writ petition filed by the Appellant. SLP filed against these directions was dismissed by this Court on 7th October, 2005. In the contempt petition filed by the Appellant for non compliance of the directions of the High Court dated 5th August, 2005, MPRTC was restrained from handing over the possession of the property or to create third party in....
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....ion. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork. 48. In reiterating the aforesaid observation, this Court in Kunhayammed (supra) observed as follows: 27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e.,....
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....sputes in open court. In such circumstances, the High Court was of the opinion that the entire dispute ought to be decided by the Chief Secretary of the State of Madhya Pradesh by holding meetings between the Principal Secretary of the Transport Department, Principal Secretaries of Housing and Environment Department and the Managing Director of the MPRTC. The Appellant accepted the aforesaid order passed by the High Court and submitted a detailed representation before the Chief Secretary on 20th February, 2009. The Chief Secretary in the meeting held on 4th March, 2009 took a comprehensive decision on all the issues involved in writ petition with regard to the cancellation of the lease deed in favour of MPRTC by IDA. The Chief Secretary revoked the order dated 2nd November, 2007 and notice dated 30th June, 2007 cancelling the lease of land in question granted to the MPRTC by IDA. RTO was directed to release the leased land from attachment. It is noteworthy that the Appellant has not chosen to challenge the aforesaid two directions. However, as noticed earlier, the Appellant challenged the directions issued in Clauses III, IV and V. in Writ Petition No. 2937 of 2009 in the High Cour....
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.... to confine itself to the question of legality. Its concern should be: (1) Whether a decision-making authority exceeded its powers? (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable tribunal would have reached, or (5) abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. 52. In our opinion, the....
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....ion to continue with the lease as it is heavily indebted presently, to the tune of Rs. 3500 crores. The property of the corporation has been attached by the various creditors. Even the proposed site where the bus stand - cum - commercial complex was to be constructed is under attachment. The claim made by the Appellant is in the nature of damages for breach of contract and/or the relief of specific performance of contract. So far as the breach of contract is concerned, the Appellant will have no cause of action against IDA as there is no privity of contract between the parties. So far as the specific performance is concerned, it appears that the entire purpose of the contract has been frustrated by subsequent events. 55. We are also not much impressed by the submission of Mr. Nariman that the doctrine of frustration cannot be applied here since it is a "self induced frustration". In the case of Boothalinga Agencies (supra), this Court upon comparing and contrasting the English Law and the statement of Indian Law contained in Section 56 of the Indian Contract Act summed up the legal position with regard to frustration of contract as follows: The doctrine of frustration o....