1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF JULY2016PRESENT THE HON’BLE MR.JUSTICE JAYANT PATEL AND THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA WRIT APPEAL NO.18037/2011(GM-KIADB) C/W WRIT PETITION NO.48399/2012(GM-KIADB) IN W.A.NO.18037/2011 BETWEEN: GARDEN CITY FASHIONS PVT LTD A COMPANY REGISTERED UNDER COMPANIES ACT NO.84, INDUSTRIAL SUBURB, YESHWANTHPUR, BANGALORE-560022 REPRESENTED BY ITS CHAIRMAN, MR.M.N.CHITTIAPPA ...APPELLANT (BY SRI.MANMOHAN P N, ADVOCATE) AND:
1.
2. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, NO.14/3, 2ND FLOOR, R P BUILDING, NRUPATHUNGA ROAD, BANGALORE – 560001. REPRESENTED BY ITS CHAIRMAN. THE CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER KIADB, NO.14/3, 2ND FLOOR, R P BUILDING NRUPATHUNGA ROAD, BANGALORE-560001 3. M/S NANDI CONSTRUCTIVE NO.95/3, 3RD FLOOR, GOWRASRI ARCADE MARATHAHALLI, K R PURAM, OUTER RING ROAD, DODDANEKKUNDI, BANGALORE-560037 4. 2 THE STATE LEVEL SINGLE WINDOW CLEARANCE COMMITTEE, KARNATAKA UDYOG MITRA, A GOVERNMENT OF KARNATAKA ORGANIZATION M S BUILDING, BANGALORE. REPRESENTED BY ITS MANAGING DIRECTOR, KUM. MEMBER SECRETARY5 MR. NANDIESHA REDDY, MAJOR, PROPRIETOR, M/S NANDIESHA CONSTRUCTIVE, NO.95/3, 3RD FLOOR, GOWRASRI ARCHADE, MARATHALLI, K R PURAM, OUTER RING ROAD, DODDANEKKUNDI, BANGALORE-560037 6. M/S SLV INTERNATIONAL TECH PARK SITUATED AT NO.79, I FLOOR, 2ND CROSS, OPP. VEERANJANEYA LAYOUT, B.NARAYANPURA, DOORAVANINAGAR, BANGALORE-16 (BY SRI.BASAVARAJ.V.SABARAD, ADV. FOR R1 & R2; SRI.P.B.RAJU, ADV. FOR R3 & R5; SRI.C.M.POONACHA, ADV. FOR LEX PLEXUS, ADV. FOR R4; SRI.UDAYA HOLLA, SR.COUNSEL FOR M/S HOLLA & HOLLA, ADV. FOR R6) ...RESPONDENTS THIS WRIT APPEAL IS FILED U/S4OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDERPASSED IN THE WRIT PETITION NO.27795/2010(GM-KIADB) DATED1011/2011. IN WP NO.48399/2012 BETWEEN: GARDEN CITY FASHIONS PVT LTD A COMPANY REGISTERED UNDER COMPANIES ACT NO.84, INDUSTRIAL SUBURB, YESHWANTHPUR, BANGALORE-560022. REPRESENTED BY ITS EXECUTIVE DIRECTOR, MR RAOUL CHITTIAPPA ...PETITIONER (BY SRI.MANMOHAN P N ASSOCIATES, ADVOCATE) AND:
1. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, NO.14/3, 2ND FLOOR, R P BUILDING, NRUPATHUNGA ROAD, BANGALORE-560001 2. 3 REPRESENTED BY ITS CHAIRMAN THE CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER, K.I.A.D.B., NO.14/3, 2ND FLOOR, R P BUILDING, NRUPATHUNGA ROAD BANGALORE-560001 3. M/S NANDI CONSTRUCTIVE4 NO.95/3, 3RD FLOOR, GOWRASRI ARCADE MARATHAHALLI, K R PURAM, OUTER RING ROAD, DODDANEKKUNDI, BANGALORE-560037 THE STATE LEVEL SINGLE WINDOW CLEARANCE COMMITTEE, KARNATAKA UDYOG MITRA A GOVERNMENT OF KARNATAKA ORGANISATION M S BUILDING, BANGALORE. REPRESENTED BY IT MANAGING DIRECTOR CUM MEMBER SECRETARY5 MR NADIESHA REDDY, MAJOR, PROPRIETOR M/S NANDIESHA CONSTRUCTIVE NO.95/3, 3RD FLOOR, GOWRASRI ARCHADE MARATHALLI, K R PURAM, OUTER RING ROAD, DODDANEKKUNDI, BANGALORE-560037 6. M/S SLV INTERNATIONAL TECH PARK SITUATED AT No.79, I FLOOR, 2ND CROSS OPP. VEERANJANEYA LAYOUT B NARAYANPURA, DOORAVANINAGAR, BANGALORE-16 ...RESPONDENTS (BY SRI.BASAVARAJ V SABARAD, ADVOCATE FOR R1 & R2; SRI.P.B.RAJU, ADVOCATE FOR R3 & R5; SRI.UDAYA HOLLA, SR.COUNSEL FOR M/S.HOLLA & HOLLA, ADVOCATE FOR R6; R4 SERVED & UNREPRESENTED) THIS W.P. IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDERDATED78.2010 ISSUED BY THE2D RESPONDENT VIDE ANNEXURE-X AND QUASH THE POSSESSION CERTIFICATE DATED276.2011 ISSUED BY THE1T RESPONDENT VIDE ANNEXURE-Y AND ETC. THIS APPEAL AND PETITION COMING ON FOR HEARING THIS DAY, JAYANT PATEL J., DELIVERED THE FOLLOWING:
4.
JUDGMENT
As in both these matters, common questions are involved, they are being considered simultaneously.
2. The facts of the case are that on 15.09.2005, the appellant-original petitioner made an application for allotment of land measuring 8100 square meters at EPIP, Whitefield, Bengaluru (hereinafter referred to as land in question/subject land). The appellant deposited the amount of Rs.24,00,000/- towards 20% of the cost of the land and another sum of Rs.2,000/- as application fee. (Parties shall be referred as petitioner/Appellant and respondent as the case may be for convenience) on 16.09.2005, the second respondent conveyed to the appellant that the plot will be ear marked in favour of the appellant-petitioner, but the plot will be formally allotted only on resolving the 5 litigation. As per the appellant-petitioner on 18.09.2005, it had conveyed to the respondent-Board that they are agreeable to the allotment, pending resolution of the litigation. The respondent-Board thereafter on 24.01.2006 issued letter to the petitioner conveying that the acquisition proceedings are still going on and the High Court has passed prohibitory order on 27.03.2000 staying the dispossession of the original owner of the land and the matter is also pending before the Apex Court. It was further conveyed that the High Court observed that until the matter was concluded by the Apex Court, the judgment could not be delivered and therefore, in view of the interim order passed by the High Court as in force, the earlier letter dated 16.09.2005 was withdrawn and the appellant- petitioner was requested to return the original receipt for refund of the amount so that the amount could be 6 paid to him. As per the respondent-Board, thereafter on 21.08.2006, the cheque was forwarded for Rs.24,02,000/- dated 08.09.2006.
3. As per the petitioner on 08.02.2006, the petitioner in response to the letter dated 16.09.2005, communicated the respondent-Board that they are willing to wait till the outcome of the litigation for commencement of the project. The relevant aspect is that the petitioner did not say anything in response to the readiness on the part of the respondent-Board, for the refund amount and the withdrawal of the earlier letter dated 16.09.2005, except re-iterating for the allotment as already made. On 14.06.2006, the petitioner conveyed to the respondent-Board that they are waiting to seek possession of the land from the Board with the allotment. On 10.12.2006, conveyed that the amount of Rs.24,02,000/- could be retained by 7 the respondent-Board and they further enquired about the status of allotment. As per the petitioner, the matter was pursued, but no action was taken in the Court of law because file was misplaced in the office of the petitioner. On 22.02.2010, for the first time, the petitioner preferred WP No.2438/2010 before this Court for the relief, inter alia, to issue appropriate writ to direct the respondent to issue formal allotment order as per the letter dated 16.09.2005 and it was also prayed to direct the respondent to consider the representation made by the petitioner dated 15.02.2006 and 07.06.2006. The said petition was withdrawn on 22.02.2010 with liberty to approach this Court afresh.
4. It appears that thereafter the petitioner preferred WP No.27995/2010 in September/August 2010 before this Court seeking prayer to quash and set aside the resolution dated 29.03.2008 passed by the 8 fourth respondent allotting the plot No.139, Whitefield, Bengaluru to the third respondent and the petitioner further prayed to issue appropriate writ to quash the order of approval dated 17.04.2008 passed by the fourth respondent allotting the said plot in favour of the third respondent. The petitioner also prayed to issue appropriate writ to quash the endorsement dated 24.01.2006 passed by the second respondent as well as another endorsement dated 28.02.2006 passed by the second respondent and further prayed that the respondent be directed to issue formal allotment order as per the allotment dated 16.09.2005 and the petitioner also prayed to direct the respondent to consider the representation dated 14.12.2006 and 17.07.2008.
5. We may record that prior to filing of the aforesaid petition on 01.09.2010, the respondent-Board 9 communicated to the petitioner that the land of plot No.139, Whitefield, Bengaluru has been ear marked in favour of third respondent. Further on 01.07.2010, there was a proposal that exchange of allotment from plot No.139 to 140 and the Executive Officer of the first respondent-Board had permitted to change the allotment on 07.08.2010 and it is thereafter on 01.09.2010 the present writ petition came to be preferred by the petitioner.
6. When the matter came up before this Court, the learned Single Judge called for original record and in the original record, it was found that the letter dated 28.02.2007 is wrongly typed as 28.02.2006 and the said letter was duly served upon the petitioner as postal acknowledgment bears the seal of the petitioner company and seal of the postal department and the said envelope has been returned by the petitioner with the 10 cheque of Rs.24,02,000/-, which was paid by the petitioner as initial deposit. The learned Single Judge further found that despite return of cheque for a sum of Rs.24,02,000/- as back as on 28.02.2007, the petitioner kept quite except filing the WP No.2438/2010. The petition was withdrawn with liberty to file afresh. No action was taken by the petitioner even thereafter. The learned Single Judge also found that after the writ petition filed by the land owner challenging the acquisition was disposed of with a direction to the Board to consider the request of land owner for allotment of portion of land for establishing their industrial unit, when the Board considered the same and allotted the land in favour of the land owner, the petitioner has chosen to file the present petition. The learned Single Judge found that the writ petition cannot be entertained because the petitioner is guilty of 11 delay and latches. It was also observed that it cannot be said that the respondent has acted in any manner illegally or arbitrarily in favour of other persons. The learned Single Judge further found that the allotment made in favour of 6th respondent on 07.08.2010 is pursuant to the direction issued by this Court while disposing of the writ petition filed by them challenging the acquisition of their land. Further, the allotment made in favour of the third respondent on 25.04.2008 is in consideration of the acquisition of land belonging to the third respondent. The learned Single Judge also found that the contention of the petitioner that they were not served with the letter dated 24.01.2006 and 28.02.2007 is unacceptable and ultimately, the learned Single judge dismissed the petition. Under the circumstances, the present appeal before us. 12 7. We may also record that after the admission of the present appeal, the petitioner has also preferred another writ petition being WP No.48399/2012 for more or less similar relief namely that the order dated 07.08.2010 issued by the second respondent for allotment be quashed and the possession certificate dated 27.06.2011 issued by the first respondent be also quashed. It is also prayed in the second writ petition that the lease-cum-sale agreement dated 29.07.2011 executed by the first respondent in favour of respondent No.6 be quashed and it is prayed that the letter of allotment dated 31.03.2011 issued by the second respondent also be quashed. As the aforesaid petition has been filed pending consideration of aforesaid writ appeal and as the writ appeal was pending before the Division Bench of this Court and the writ petition was connected with the same subject matter, it is ordered to 13 be placed with writ appeal. Accordingly, the writ petition before us.
8. We have heard Mr.P.N.Manmohan, learned Counsel appearing for the petitioner-appellant, Mr.Basavaraj V.Sabarad, learned Counsel appearing for respondent-Board and its Officers and Mr.Udaya Holla learned Senior Counsel appearing for respondent Nos.3, 4, 5 and 6.
9. In our view, the controversy can be segregated into three parts. One could be for rights, if any, crystallized in favour of the petitioner for allotment of the land in question with respondent No.1-Board; and the second is, allotment made by the respondent- Board in favour of respondent No.3 through respondent No.4 – State Level Window Clearance Committee; and 14 the third is, the exchange permitted between plot No.139 and 140 in favour of respondent Nos.5 and 6.
10. We may record that the petitioner has not approached this Court challenging the allotment per se on the contention that the said property belonging to the Board could not have been allotted without following the statutory provisions or Rules or Regulation, but the petitioner-appellant has approached this Court by contending that the rights of the petitioner in the land in question are for plot No.139 belonging to the respondent-Board. There was allotment and hence the direction be issued to take further action including that of formal allotment in favour of the petitioner by the Board, since the formal allotment was in favour of the petitioner by the Board has not taken place. Further as in the meantime, the plot in question i.e., plot No.139 is also allotted by the respondent-Board to the private 15 respondents including the exchange of plot No.140, the said allotment be cancelled. But the ultimate relief by the petitioner is that the land be allotted to the petitioner by way of formal allotment. In the circumstances, we find it appropriate to address the first aspect of the matter as to whether the petitioner has any right in law to seek for the relief of directing the formal allotment of the land in question in its favour or not. It is only thereafter, if the said aspect is held in favour of the petitioner, we may be further required to be examine as to whether the allotment made in favour of the private respondents including exchange of plot No.139 and 140 are legal or valid or whether it calls for any direction to set aside the said allotment and the agreement entered into for the land in question in favour of the private respondents or not. 16 11. The only basis of the petitioner is the letter dated 16.09.2005 and the whole premise of the case by the petitioner is based on two aspects, one is, application made by the petitioner for allotment of plot and deposit of 20% of the amount and the second is, letter dated 16.09.2005 issued by the respondent-Board to the petitioner.
12. It was not a matter where in response to any advertisement, any application was made by the petitioner for allotment, but as per the petitioner since it was permissible, the application was made by it for allotment of plot and the requisite deposit of 20% was deposited. The respondent-Board in response to the same vide letter dated 16.09.2005 conveyed as under: “Sub: Request for allotment of 2.00 acres of land in Plot No.139 of EPIP Area, Whitefield, Bangalore. Ref: Your application dated 15.09.2005 17 In furtherance to your request, I am to inform that Plot No.139 of EPIP Area, Whitefield, Bangalore will be earmarked in your favour. This plot will formally be allotted only on resolving the litigation. You are requested to wait till such time. Receipt of this letter may please be acknowledged.” 13. Immediately within a period of about four months on 24.1.2006, respondent-Board communicated to the petitioner as under: in 2/2 Sy.NOs.2/1 & “With reference to the above, I am to inform that Plot No.139 of EPIP Area, is covered of Sonnenahalli Village, K.R.Pura Hobli, Bangalore East Taluk acquired by the KIADB. One Shri N.Venugopala Reddy and others have filed W.P.Nos.10356 – 61/2000 the High Court of Karnataka, before challenging the acquisition proceedings including the aforesaid land. The Hon’ble High Court of Karnataka has granted interim order dated 27.3.2000 18 staying the dispossession of the petitioners from the said lands. The matter is linked with SLP (Civil) No.2934/2000 filed by the KIADB before the Supreme Court, against the High Court of Karnataka order dated 26.11.1999 in WP No.26638/1999. The High Court has observed that unless the Supreme Court matter is decided, it can not deliver judgment in W.P.Nos.10356 – 61 / 2000. As the interim order dated 27.3.2000 passed by the High Court is still in force, it is just and proper to await the decision of the High Court before taking any steps to allot the land. Therefore, it has been decided to withdraw this office letter dated 16.9.2005. You are requested to return the original receipt for the payments made to facilitate refund of the amount paid by you as no other plot in EPIP area is readily available for allotment. The inconvenience caused is regretted, and early compliance is requested.” 14. The aforesaid shows that the letter dated 16.9.2005 by which the communication was made that the plot can be earmarked but the formal allotment will 19 be made after the conclusion of the litigation was withdrawn. Not only that, but the respondent-Board called upon the advance original receipt for refund of the amount. In our view, the aforesaid communication dated 24.1.2006 clearly shows an end of the so called contingent promise for allotment of the plot. In our view, the aforesaid two correspondences vide the letter dated 16.9.2005 and the letter dated 24.1.2006 as such show that there was no concluded contract because the amount deposited by the petitioner by submitting the application at the most could be said as an invitation to offer and the communication vide letter dated 16.9.2005 at the most can be said to be a contingent promise to accept the offer. But before any further action is taken in this regard vide letter dated 24.1.2006, having realized that the contingency cannot be fulfilled, the so called contingent promise was 20 withdrawn. In any case, even if it is considered for the sake of examination that there was offer and contingent promise then also since the contingency could not be fulfilled, the so called contingent promise came to an end. Non-fulfillment of the contingency can be traced from prohibitory order dated 27.3.2000 passed by the High Court in WP NO.10356-61/2000 whereby the stay was granted against dis-possession. If the respondent- Board was unable to take over the possession of the land in question, in view of prohibitory order passed by the High Court, naturally, there was no question of any allotment of the land which was yet to be acquired by the respondent-Board. Further, if a promise is given that too contrary to the order passed by this Court in the above referred writ petition that the plot would be earmarked for the petitioner and upon the end of the litigation the plot would be formally allotted, the same 21 also cannot be said as enforceable in the eye of law because when the matter was pending in the High Court and there was a stay granted against dispossession, the acquisition with possession was not made. Hence, the respondent-Board as such could not give any such promise but it appears that subsequently, having realized by the respondent-Board that in view of the prohibitory order of the High Court, the so called promise vide letter dated 18.9.2005 cannot be given, hence it was withdrawn.
15. In our considered view, as such in absence of any concluded contract between the petitioner and the respondent, no right can be said to have been created in favour of the petitioner. Further, before any promise is realized by a concluded contract, the contingent acceptance was also withdrawn. In any case, by letter dated 24.1.2006, whatever the promise given has come 22 to an end. Hence, if one says so called contract then also such has come to an end on 24.1.2006.
16. The petitioner, for the first time on 8.2.2006 communicated to the respondent-Board as if it has not received above referred letter dated 24.1.2006. The so called letter dated 18.9.2005 is not even referred nor relied upon in the letter dated 8.2.2006. If the contention of the petitioner is considered for the sake of examination to consider that it had altered its position by letter dated 8.2.2006 then also, the said communication by the petitioner was ignoring the factum of putting an end to the so called contingent promise and hence no foundation can be validly made by the petitioner based on its letter dated 8.2.2006. On the contrary, since the petitioner did not respond by sending advance receipt so as to get refund of the amount, there were reminders by respondent-Board on 23 14.11.2006. Once again letter dated 28.2.2007(wrongly typed as 28.2.2006) is addressed by the respondent- Board for forwarding of refund of the amount of Rs.24,00,000/- and the cheque was also forwarded.
17. The another aspect is that, even if we consider that after the letter dated 16.9.2005, the petitioner conveyed by letter dated 18.9.2005 to the respondent- Board of acceptance of the letter dated 16.9.2005 of the respondent-Board then also at the most one can say that the so called promise was on contingency of conclusion of the litigation in favour of the respondent Board to which the petitioner was agreeable but when the respondent-Board having realized about the prohibitory order of the High Court and the pendency of the matter before the Supreme Court, when withdrawn, so called contingent promise or non-fulfillment of the contingency that too coupled with the aspects so that 24 promise was running counter or in contravention to the order of the High Court, it cannot be said that after 24.1.2006, in any case, the so called promise continued. Further, as we recorded earlier, the so called promise by the respondent-Board in no case can be given legal sanctity when it run counter to the order passed by the High Court.
18. The attempt was made by the learned counsel for the petitioner to contend that the stay was against dispossession and not against allotment to be made and therefore, one may not gather that so called promise of the contemplated allotment can be said as running counter to the order of the High Court. In our view, the contention may prima facie appear to be attractive but, upon further scrutiny it appears that so long as the possession of the land is not acquired by the respondent-Board, the land would not vest to the 25 respondent-Board and unless and until the land vests to the respondent-Board neither any allotment can be made by the respondent-Board nor any promise can be given. Such a promise, even if considered can at the most be said as for the subject which was non-existent and resultantly, if the subject matter of the contract is non-existent and even if it is considered that for the sake of examination that there was any contract, such contract would be void.
19. After having considered the aforesaid position of fact and rights of the parties namely of the petitioner and respondent-Board in law, two conclusions can be recorded. One is that, there was no concluded contract and even if considered as contingent promise, such promise was not only contrary to the order passed by the High Court, but was also for a subject matter which can be said as non-existent because at the relevant 26 point of time i.e. on 16.9.2005, no subject matter of land was ever vested to the respondent-Board entitling it for allotment. The additional aspects is that, in any case, the so called contingent promise has come to an end on 24.1.2006.
20. If the so called contingent promise has come to an end on 24.1.2006 by no representation made by the petitioner, such promise can be put to life. The cause of action in the eye of law for the purpose of limitation would start from the termination of so called contingent promise or putting an end to the so called contingent promise. It is hardly required to be stated that if the contract is terminated or contingent promise is to put an end by either side, the remedy available to the aggrieved party is to either move the Court for specific performance of contract or for damages. In any case, 27 any action was required to be brought before the Court within a period of three years from 24.1.2006.
21. If the facts of the present case are further examined, the petitioner for the first time has approached to this Court by preferring Writ Petition No.2438/2010 only on 22.2.2010. However, the period of limitation of three years based on the so called right of the contingent promise has expired on 24.1.2009.
22. As in any case, the aforesaid petition was withdrawn with a liberty to file a fresh petition. The rights if any for saving the limitation even in subsequent petition cannot be for the period prior to 22.02.2010 i.e. the date of filing of W.P.No.2438/2010. Hence, it can be said that when the Writ Petition No.27795/2010 was preferred, the limitation period was over and the rights if any of the petitioner as per the so called contingent promise were barred by law of limitation. 28 23. It is true that for the proceedings of writ petition under Article 226 of the Constitution, the bar of limitation provided by the Limitation Act would not be automatically applicable but at the same time, it is also by now well settled that, a thing which cannot be done directly in normal law cannot be permitted to be done indirectly by invoking power under Article 226 of the Constitution. As such, in the matter of contract, this Court would be at loath to interfere under Article 226 of the Constitution unless contract pertains to discharge of statutory duties. Since the functioning of the respondent-Board is as per the statute and the regulations are also framed for its businesses, even if it is considered for the sake of examination that the writ petition under Article 226 of the Constitution could be entertained, then also, when the foundation of the relief is emanating from the so called contingent promise or 29 the Contract Act, while asserting the relief the normal bar operating of the limitation to the aggrieved party cannot be ignored. Considering the facts and circumstances of the case, we find that when the foundation of the case of the petitioner is on the so called contingent promise, the petitioner could at the most pursue the remedy if any available but within the period provided as per the limitation Act and not thereafter. Under these circumstances, we find that the relief prayed by the petitioner for issuing the mandamus to the respondents to consider the representation which are for the consequential action for allotment of the plot in question, were barred by the law of Limitation and therefore, it would be a valid ground to deny the relief pertaining thereto to the petitioner.
24. Even if the matter is considered for the sake of examination by keeping aside the bar of Limitation Act 30 in the entertainment of the petition under Article 226 of the Constitution, then also such a powers under Article 226 of Constitution are discretionary and can be exercised for equitable consideration in addition to the rights of the parties as per the law. As we have observed earlier, the bar of limitation Act operates as per law. Further, as observed by us earlier, there was no concluded contract and at the most one may say that it was a contingent promise but such contingent promise for a subject matter which was unavailable to the respondent-Board coupled with the aspect that so called contingent promise was running counter to the prohibitory order passed by the High Court in the above referred writ petitions.
25. Under these circumstances, we find that when the subject matter of the land was unavailable to the respondent-Board at the relevant point of time for 31 allotment, any promise given upon the contingency for conclusion of allotment cannot be enforced by writ of mandamus more particularly when before any further action is taken by the petitioner on the letter dated 16.9.2005 the so called contingent promise was withdrawn by the respondent-Board as per the communication latter dated 24.1.2006 and so called contingent promise had come to an end on 24.1.2006. Further delay operates against the petitioner if not by the limitation Act but on equitable consideration in as much as, the petitioner did not take any action against the respondent-Board though respondent-Board had conveyed for putting and end (withdrawal) to the contingent promise and refund of the deposit coupled with the aspects that actually the cheque for the refund of amount was also forwarded. Therefore, as per the respondent-Board, everything had come to an end but 32 the petitioner did not take any further action. Hence, we find that considering the facts and circumstances of the present case including the conduct and the delay on the part of the petitioner in pursuing the matter, it would not be a case to issue mandamus under Article 226 of the Constitution by putting life to the so called contingent promise which has come to an end as back as on 24.1.2006. At the most, the petitioner may be entitled to the relief which of course was pressed by the learned counsel appearing for the petitioner during the course of hearing for refund of the amount. On the aspects of interest on the aforesaid amount, we will deal with the matter at the later stage.
26. At this stage, we may usefully extract the relevant observations of the Apex Court on the aspects of delay while exercising power under Article 226 of the Constitution. In case of State of M.P. And Others vs. 33 Nandlal Jaiswal And Others reported in (1986) 4 SCC566at paragraph 14 which reads as under: “Now, it is well settled that the power of the High Court to issue an appropriate writ under article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may the writ jurisdiction is excercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the important factor which meanwhile always weighs with in deciding whether or not to exercise such the High Court is an intervene and if 34 this judgment with reference jurisdiction. We do not think it necessary to burden to various decisions or this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decision of this Court one in Ramanna Dayaram Shetty v. International Airport Authority of India & Ors., [1979]. 3 SCR1014and the other in Ashok Kumar Mishra & Ant. v. Collector Rajput & Ors., [1980]. 1 SCR491 We may point out that in R.D. Shetty's case (supra), even though the State action was held to be unconstitutional as being violative of Article 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition had been filed by the petitioner more than five months after the acceptance of fourth respondent and during that period, the fourth respondent considerable expenditure, aggregating to about Rs. 1.25 lakhs, in making arrangements for putting up the restaurant and the snack bar of course, this rule of laches or delay is not a rigid rule which . Can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, incurred had the tender of the 35 interfere such cases where the demand of justice is so compelling that the High Court would be inclined to inspite of’ delay or creation of ,third party rights would by their very nature be for between. Ultimately it would be a matter within the discretion of the Court ex-hypothese every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.” few and (Emphasis Supplied) 27. In case of Shankara Cooperative Housing Society Limited Vs. M.Prabhakar And Others reported at (2011) 5 SCC607 the Apex Court once again had an occasion to consider the aspects of delay and laches to be borne in mind by the High Court to exercise discretionary power under Article 226 of the Constitution. After considering its various decisions, it had concluded the law settled at paragraph 54 which reads as under: The relevant in determining whether delay or laches should be put against a person who approaches the considerations, 36 writ Constitution is now well settled. They are: court under Article 226 of the (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. there is (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable to condone the delay. It is immaterial the High Court for 37 what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay.
28. In view of the aforesaid conclusion on the first aspects, we find that the second aspect for allotment made by the respondent-Board in favour of respondent no.3 through respondent no.4 and the aspect of exchange permitted between Plot No.139 and 140 in favour of respondent nos. 5 and 6 would not be required to be examined for the simple reason that if the petitioner is unable to succeed in establishing the right for allotment of the land in question, his subsequent prayer for setting aside all the allotment already made after putting an end to the contingent promise would be 38 only an academic exercise. We have recorded earlier that, the foundation of the petition is the so called contingent promise and non-fulfillment by the respondent-Board. As per the petitioner, pending the actual allotment to be made to the petitioner as per so called contingent promise, the plot in question is already allotted to some other party and therefore the petitioner has also challenged the allotment already made. The petitioner has not preferred the petition as a public interest litigation for the better administration of the respondent-Board nor it is preferred to ventilate that the public interest has suffered. But, what is complained of by the petitioner is that, his individual interest has suffered which the petitioner is claiming on the basis of so called contingent promise. In these facts and circumstances, we find that, when the rights of the petitioner are not crystallized for allotment of the land 39 in question, it would not be necessary for us to further examine as to whether the allotment made by the respondent-Board to respondent nos.3 to 6 is proper or not.
29. We may record that, the learned counsel for the petitioner as well as the private respondents including of respondent-Board have addressed on the scheme of ‘Single-Window Clearance’ as per Karnataka Industries (Facilitation) Act, 2002 (Ann.P). The learned counsel for the petitioner has submitted that there is contravention of the regulation by the allotment of land through `Single Window Clearance’ scheme whereas, the learned counsel for respondent-Board and the private respondents have contended that the said Act is having over-riding effect and therefore the allotment made is legal coupled with the aspects that the allotment initially was made to the persons whose lands 40 were acquired and the observations made by this Court in other matter to consider their request by the Board for allotment of the land. However, we find that when there is no right in law with the petitioner over the land in question by the so called contingent promise which has come to an end and when in view of the observations and discussion made by us hereinabove, we have found that no relief deserves to be granted to direct respondent-Board to allot the land in question to the petitioner, no useful purpose would served in examining contention further as to whether the allotment made by respondent-Board to private respondent is valid or not. When the matter pertains to the right for allotment of the land and the Court has not found that there is any right for seeking allotment, the allotment if any made by the respondent-Board to any other person would be beyond the scope of the rights of 41 the petitioner. Hence, we find that when no right of the petitioner is proved in law for allotment of the land, whether allotment is made by the respondent-Board to any third party rightly or not should not be a matter for consideration that too at the instance of the petitioner who has not been able to prove his right over the subject land.
30. In view of the aforesaid observation, we find that the decision upon which the reliance has been placed by the learned counsel for the appellant to show that the allotment made to the private respondent by the respondent-Board is not in accordance with law as well as the decision upon which the reliance has been placed by the learned counsel for the respondent-Board and the learned counsel for the private respondent to show that the allotment made is in accordance with the Karnataka Industries(Facilitation) Act, 2002 and as 42 requisite formalities are undertaken etc., in our view, would not be required to be further examined since it would only be an academic exercise more particularly when the petitioner has not been able to establish that any right was crystallized for the land in question in its favour nor it has been able to establish that any relief deserves to be granted for directing the respondent- Board to allot the land to it in exercise of power under Article 226 of the Constitution.
31. As observed by us hereinabove, the petitioner at the most can be granted relief for refund of the amount of Rs. 24 lakhs which was deposited by the petitioner at the time when the application was made on 15.9.2005 for allotment of land. As observed by us hereinabove, the petitioner has not been able to succeed for seeking relief for allotment of the land, but, in our view, on equitable consideration, he would be in any 43 case entitled for the refund of the amount. The fact remains that, the respondent-Board has enjoyed money from 15.9.2005 onwards may be on account of the conduct on the part of the petitioner of not accepting the refund by realization of the cheque or otherwise, therefore, interest can be considered on compensatory basis at the reasonable rate. Under these circumstances, we find, if the Bank rate interest is kept in mind, the respondent-Board should refund the amount with reasonable interest at the rate of 8% p.a. from 15.9.2005 till the amount is refunded.
32. In view of the aforesaid observation and discussion, respondent-Board is directed to refund the amount of Rs.24 lakhs with interest at the rate of 8% p.a. from 15.9.2005 till the amount is refunded. The other reliefs prayed by the petitioner cannot be granted. Hence, refused. 44 33. Writ Appeal as well as writ petition shall stand partly allowed to the aforesaid extent. No order as to costs. All pending IAs are disposed of in view of disposal of the main matter. Sd/- JUDGE Sd/- JUDGE bgn/Sk/-