S. V. Gangapurwala, J. - (1.) The petitioner assails the orders dated 23.05.2006, 05.10.2007 and 21.10.2013 thereby refusing to allot the commercial plot to the petitioner in the Shendra Five Star Industrial area. The petitioner also seeks directions against the respondents to allot the petitioner land admeasuring 26,000 Square Meters as per letter dated 28.12.2005.
(2.) Mr. Totala, learned Advocate for the petitioner during the course of his erudite arguments canvassed following submissionsI] On 28.12.2005 respondent - Maharashtra Industrial Development Corporation (hereinafter refereed to 'MIDC') gave an offer of land to the petitioner admeasuring 26,000 Square Meters at the rate of Rs. 190 per Square Meter and requested to submit Blue application with Demand Draft of Rs.24,70,000/- towards the earnest money within fifteen days from the date of receipt of the letter. II] The petitioner on 10.01.2006 within fifteen days accepted the offer unconditionally. The acceptance on the part of the petitioner gave rise to a concluded contract between the parties. It was not open for the respondent to resile from the contract after a period of four months and thirteen days. III] Under letter dated 23.05.2006 respondent - MIDC cancelled the offer on the ground that it does not allot the plot to a society in the Shendra Five Star Industrial area. IV] The petitioner immediately on 25.05.2006 submitted an application requesting appointment of the Chief Executive Officer for discussion and redeposited the Demand Draft to MIDC. V] The petitioner filed writ petition bearing no. 5778 of 2006. The Advocate for the MIDC made a statement in the said writ petition that if the representation of the petitioner is not decided it would decide the same. The Court accepted the said statement and gave direction to the respondent - MIDC to decide the representation within two months and communicate the decision. In the said writ petition the MIDC never took a stand that the acceptance of the offer by the petitioner was a conditional acceptance nor the same was the ground for refusing to allot the plot to the petitioner. Pursuant to the order passed in Writ Petition No. 5778 of 2006 the MIDC communicated it's intention of not allotting the plot to the petitioner by referring to the Resolution dated 09.04.2007 and stating that land to the co-operative societies would not be allotted. The Resolution is subsequent to the offer accepted by the petitioner. VI] The petitioner again filed Writ Petition No. 6991 of 2008. In the said writ petition the Court recorded that the Advocate of petitioner has expressed willingness of his client to accept any other alternate plot. The Advocate for the MIDC expressed that his client would consider availability of the other plot in any other area and whether same can be made available to the petitioner. In the said writ petition also it was not the stand of the MIDC that the concluded contract does not exist or that acceptance by the petitioner is a conditional acceptance. Till the Writ Petition No. 6991 of 2008 was disposed of, the respondent never took the plea that the acceptance was a conditional acceptance on the part of the petitioner. VII] During the pendency of the said Writ Petition No. 6991 of 2008 the MIDC went for auction of plots. The allottees were put to notice that the allotment shall be subject to outcome of writ petition. VIII] Writ Petition No. 6991 of 2008 was finally disposed of under order dated September 10, 2013 and the respondent was directed to apply his mind afresh to Annexure 'A' of the said petition and to take suitable decision. The Annexure 'A' was the representation of the petitioner. IX] Again the MIDC communicated the petitioner that in Shendra Five Star Industrial area commercial plots are allotted by calling tenders and the petitioner would not be allotted the plot. X] In all these proceeding the MIDC never took a stand that the contract is not concluded between the parties. It would be too late in the day for the respondents now to contend that the contract is not a concluded contract. XI] The Advocate for the petitioner to substantiate his contention that the acceptance was a valid acceptance and the contract was a concluded contract relied on the following judgments - i] Bhagwati Prasad Pawan Kuamr Vs. Union of India, 2006 6 MhLJ 6. ii] Jawahar Lal Burman Vs. Union of India, 1962 AIR(SC) 378. iii] Manohar S/o. Rambhau Galghate Vs. Saraswato Co-operative Housing Society Ltd. Dindayal Nagar, Nagpur and others, 2005 3 MhLJ 297. iv] Deviprasad Khandelwal and Sons Vs. Union of India, 1969 AIR(Bom) 163. v] Gujarat State Fertilizers Co. Ltd. Vs. HJ Baker and Bros. and others, 1999 AIR(Guj) 209. vi] Progressive Constructions Ltd. Vs. Bharat Hydro Power Corporation Ltd., 1996 AIR(Del) 92. vii] Ashok Kumar Sharma Vs. State of Rajasthan, 2013 1 RajLW 920. XII] The respondents are not coming with clean hands. The letter of acceptance is in two parts. First part is the unconditional acceptance of an offer by the MIDC and the second part of the letter of acceptance dated 10.01.2006 is mere expression of desire of the petitioner mentioning that they have submitted list of fifteen members along with the project report and required land / area as per the project is about 35,000 Square Meters. The same cannot be said to be a conditional acceptance. The second part of the letter that desire of 35,000 Square Meters is only a submission of the petitioner for consideration to allot additional area and the same is not a condition precedent for accepting the offer. The acceptance is in consonance with Section 7 of the Indian Contract Act. The petitioner had deposited the amount of consideration viz. the earnest amount as demanded by the respondent. The offer is deemed to be accepted even as per Section 8 of the Indian Contract Act, 1872. The learned Advocate submits that respondent - MIDC is discriminating the petitioner. The respondents are relying on the Resolution dated 09.04.2007 to contend that land in the Shendra Five Star Industrial area is not to be allotted to a cooperative society, whereas the petitioner has placed on record the allotments made to cooperative societies of commercial plots without issuing tender. The respondents are blowing hot and cold to suit their purpose. The Resolution relied by the respondents dated 09.04.2007 is much after the petitioner had accepted the offer of the respondent for allotment of 26000 Square Meters of land at Shendra Five Star Industrial area. The Resolution dated 09.04.2007 will not have any effect on the rights crystallized in favour of the petitioner. XIII] The respondent - MIDC is not entitled to take unilateral decision of rescinding the contract. The same would amount to breach of contract. The learned Advocate relies on the judgment of the Apex Court in a case of Sunil Pannalal Banthia and others Vs. City and Industrial Development Corporation of Maharashtra Ltd. and another, 2007 10 SCC 674 and the judgment of the Division Bench of this Court in a case of M/s. Shree Ambica Developers Vs. State of Maharashtra and others, 2012 3 MhLJ 640. The learned Advocate submits that acceptance of an offer by the respondent was completed as against the petitioner and a concluded contract came into existence the moment the payment was made by the petitioner. The learned Advocate relies on the judgment of the learned Single Judge of this Court in a case of Manohar S/o. Rambhau Galghate Vs. Saraswati Co-operative Housing Society Ltd. and others, 2005 3 MhLJ 297. XIV] The contention of the respondent that the petitioner should approach the Civil Court and this Court would not entertain the present petition for enforcing the rights under the contract is not in consonance with the legal position. This Court can entertain the writ petition for enforcement of contractual obligation. The respondent - MIDC is the instrumentality of the State. It's acts are arbitrary, in such a case, this Court can entertain the writ petition. The learned Advocate relies on the judgment of the Apex Court in a case of ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others, 2004 3 SCC 553, the judgment of the Division Bench of this Court in a case of M/s. Punya Coal Roadlines Vs. M/s. Western Coalfield Ltd. and another, 2015 3 AllMR 717 and the judgment of the Apex Court in a case of Popcorn Entertainment and another Vs. City Industrial Development Corporation and another, 2007 9 SCC 593. XV] The case put forth by the respondent that there is a novatio of contract is erroneous. On one hand respondent come with the plea that no concluded contract exists and on the other hand are taking plea of novatio of contract, meaning thereby that concluded contract existed between the parties. There is a consensus between the parties and just by showing willingness to pay the enhanced amount of consideration cannot be said to be a novation. The learned Advocate relies on the judgment of the Apex Court in a case of Mukul Sharma Vs. Orion India Proivate Ltd. Through its managing Director, 2016 12 SCC 623. XVI] The respondents have allotted the commercial plots directly to the private parties and also to cooperative societies, as such, they cannot contend that the commercial plot cannot be allotted to a cooperative society. The learned Advocate relies on the judgment of the Apex Court in a case of Shyam Telelink Ltd. now Sistema Shyam Teleservices Ltd. Vs. Union of India dated October 5, 2010. XVII] The learned Advocate for the petitioner further submits that the stand taken by the respondents that the petitioner is a proposed cooperative society, and as such, is not entitled to enter into a contract is absolutely erroneous. The learned counsel relies on Section 15-H and 19-E of the Specific Relief Act, 1963 and to substantiate his contention relies on the judgment of the Apex Court in a case of Jay Narain Parasrampuria (Dead) and others Vs. Pushpa Devi Saraf and others, 2006 7 SCC 756. The learned Advocate submits that the petitioner was ready to abide by each and every term put forth by the respondents and for that purpose even had issued communications but the respondents had decided not to allot plot to the petitioner under any circumstances. The petitioner is a proposed cooperative society for the benefit of its members. The respondents being instrumentality of the State cannot discriminate and act in arbitrary manner. The respondents be directed to allot plot admeasuring 26,000 Square Meters as per their offer letter. XVIII] It is only after the plot is alloted, then the question of registration of a society would arise. After the plot is allotted the petitioner would register the society. It is the practice of the respondent to invite applications from the proposed society. Even today in their application forms on the website, column is mentioned of proposed cooperative societies.
(3.) Mr. Shah, learned Senior Advocate appearing for respondent - MIDC in lucid manner put forth following propositions - A] The petitioner claims to be a proposed cooperative society. The petitioner - society is not a registered society. The learned Senior Advocate submits that an unregistered society cannot enter into a transaction of sell or lease. An unregistered cooperative society cannot enter into a contract, as the same is not a legal entity and is not in existence unless and until its registration. The learned Senior Advocate relies on the judgment of the learned Single Judge of the Gujarat High Court in a case of Laxminagar Co-operative Housing Society Vs. Mamlatdar and another, 2005 3 GLR 2083. The learned Senior Advocate further relies on the judgment of the Apex Court in a case of Ishwru Yatayat Cooperative Society Vs. State Transport Appellate Authority, 1975 2 SCC 685 and another judgment of the Division Bench of Gujrat High Court in a case of Shri Ramji Mandir Narsinhji and others Vs. Narsinh Nagar Cooperative Housing Society Ltd., Navsari and others, 1979 AIR(Guj) 134. B] This Court would not exercise its writ jurisdiction to enforce contractual obligations. It cannot be issued merely because it is lawful to do so. The party is required to exhaust his remedy before the Civil Court. The learned Senior Advocate relies on the judgment of the Apex Court in a case of Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond and Gem Development Corporation and another, 2013 5 SCC 470. No tender was issued. The allotment of land of plot for commercial purpose in industrial area has to be by public auction, by giving due publicity and not by private negotiations, such an allotment is not countenance by law. The learned Senior Advocate relies on the judgment of the Apex Court in a case of the City Industrial Development Corporation Vs. Platinum Entertainment and others, 2015 1 SCC 558, so also, the judgment of the Apex Court in a case of Bhubaneshwar Development Authority and another Vs. Adikand Biswal and others, 2012 11 SCC 731 and the judgment of the Apex Court in a case of ITC Ltd. Vs. State of Uttar Pradesh and others, 2011 7 SCC 493. The judgment of the Division Bench in a case of Somnath Vs. State of Maharashtra, 2016 4 AIRBomR 724. The judgment of Division Bench of this Court in Writ Petition No. 1619 of 2011 dated 04.02.2014. The judgment of Division Bench of this Court in a case of Vikrant Industries Vs. The State of Maharashtra and others, 2014 3 AllMR 877. C] If the letter termed by the petitioner as an offer letter by the respondent is perused the said letter does not specify a particular plot. The location of plot is also not specified. In view of that, the agreement is void as per Section 29 of the Indian Contract Act, 1872. The learned Senior Advocate relies on the judgment of the Apex Court in a case of Nahar Singh Vs. Harnak Singh and others, 1996 6 SCC 699. D] The learned Senior Advocate in alternate submits that even if the contention of the petitioner of existence of concluded contract is presumed, then it is case of novatio of contract. The petitioner issued a letter to the respondent - MIDC after filing the first two writ petitions that the tenders were issued but no proper response was received by the MIDC and as such the tender process was cancelled. In the said letter, the petitioner specifically submitted that they are agreeable to receive the plot at a higher rate. Subsequently, the petitioner through their Advocate issued a notice on 12.10.2007 stating that if the existence of the society is an impediment for allotment of plot, then they are ready to change their constitution and are ready to convert it into the private limited company or the partnership firm and they are ready to file such an undertaking. The petitioner also communicated that they are ready to receive plot in any other area.;