The Civil Appeal …………of 2014 arising out of S.L.P. (C) No. 35001 of 2012 impugning the judgment of the M.P. High Court at Jabalpur rendered in Writ Petition No. 2937 of 2009. The ...
No Acts & Articles mentioned in this case
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4896 OF 2014
(Arising out of S.L.P. (C) No. 35001 of 2012)
Sri Ram Builders …Appellant
VERSUS
State of M.P. & Ors.
...Respondents
WITH
CIVIL APPEAL NO. 4897 OF 2014
(Arising out of S.L.P. (C) No. 35017 of 2012)
WITH
CIVIL APPEAL NOS.4898-4899 OF 2014
(Arising out of S.L.P. (C) Nos. 35027-35028 of
2012)
WITH
CIVIL APPEAL NO. 4900 OF 2014
(Arising out of S.L.P. (C) No. 36887 of 2012)
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1.Leave granted.
1
Page 2 2.The Civil Appeal …………of 2014 arising out of S.L.P.
(C) No. 35001 of 2012 impugning the judgment of
the M.P. High Court at Jabalpur 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 2
nd
November, 1981 was entered into between
2
Page 3 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 Council of Ministers, State of Madhya Pradesh,
vide order dated 8
th
November, 2001, authorised the
Transport Corporation to construct a commercial
complex on the land owned by it or allotted to it on
lease, under a Build, Own-Operate and Transfer
(“BOT”) Scheme through open tenders. The revenue
generated from the said project(s) was to be used to
discharge the liability of the MPRTC. On 13
th
April,
2003, a notice inviting bids for selection of a
developer under the BOT Scheme was issued and
3
Page 4 published in the leading newspapers. In response to
this notice, a total number of ten applications were
received; and out of those ten applications, five were
found to have satisfied the eligibility criteria.
Appellant was placed at Sr. No.1 in the list of the
candidates satisfying the eligibility criteria.
Thereafter, a Special Committee was constituted for
the scrutiny of tenders received for construction of
the bus stand/commercial premises under the B.O.T.
Scheme. On 3
rd
July, 2003, the Special Committee
recommended that since the premium amount
offered by the bidders was less, further negotiations
be held with all the qualified bidders. Accordingly,
the Special Committee held negotiations with the
qualified bidders on 7
th
July, 2003, wherein the
Appellant’s bid for the B.O.T. Scheme was found to
be the highest.
6.MPRTC, after scrutiny of the financial bid and the
proposal submitted by the Appellant for B.O.T.
4
Page 5 scheme, approved its bid vide Acceptance Letter
dated 3
rd
October, 2003. In the Acceptance Letter,
the Appellant was directed to deposit 25 per cent
amount of the total premium amount of Rupees One
Crore Sixteen Lac Thirty Seven Thousand Seven
Hundred and Fifty (Rs.1,16,37,750/-) within 15
days of the issuance of the Acceptance Letter.
Accordingly, Appellant deposited the first installment
of Rs.1,16,37,750/-. The appellant also have to pay a
further sum of Rs.7,33,320/- demanded by MPRTC as
consultancy fees.
7.In pursuance of the Acceptance Letter, an Agreement
dated 4
th
February, 2004 was entered into between
the Appellant and the MPRTC. This agreement inter
alia provided that the tender document with scope of
work general conditions, special conditions, general
specifications, list of brands and offer price bid shall
form part of the agreement.
5
Page 6 8.The MPRTC issued a work order dated 16
th
March,
2004 to the Appellant for demolishing the existing
structure on the land; to be replaced by the
commercial complex. On 11
th
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 14
th
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.
6
Page 7 10.On 27
TH
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 24
th
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 MPRTC for
the construction of the Bus Stand and Commercial
Complex.
11.On 28
th
June, 2004, Writ Petition No. 801 of 2004
came to be filed by one Suresh Seth, before the
Indore Bench of the High Court of Madhya Pradesh,
assailing the Notification dated 11
th
May, 2004. By
this notification, as observed earlier, reservation of
land use of 3.59 acres was changed by the State
Government. The High Court, vide order dated 9
th
September, 2004, sought reports from the State
7
Page 8 Government as well as the MPRTC and IDA. In their
respective reports, the State Government, MPRTC
and IDA stated that the said BOT project was in
public interest and justified the Notification dated
11
th
May, 2004.
12.Meanwhile on 6
th
January, 2005, the Joint Director,
Town and Country Planning sanctioned the detailed
site plan of proposed BOT project. The Appellant also
applied the Municipal Corporation, Indore for
sanction of the building plan, but the same was not
granted on the ground that Writ Petition No. 801 of
2004 was pending before the High Court.
13.On 23
rd
February, 2005, IDA issued a certificate
indicating therein that in respect of the proposed
B.O.T. Project, premium as well as 15 years’ lease
rent had already been deposited. On the basis of the
above, the IDA indicated that there shall be no
8
Page 9 objection, if land in question is mortgaged with any
bank, financial institution or the Government.
14.In the meanwhile, there was a move by the State
Government for closure of the MPRTC. In this
context, the Government of India granted no
objection to the State Government on 23
rd
March,
2005, subject to the condition that the State
Government shall ensure and be fully responsible for
ensuring compliance of any existing/future order(s)
passed by various Courts, including Tribunals, in
any/all matters relating to MPRTC.
15.The Appellant filed Writ Petition No. 636 of 2005 in
the High Court seeking a direction to the MPRTC to
immediately hand over possession of the land in
question to the Appellant and grant permission to
demolish the existing structure. On 5
th
August, 2005,
the Writ Petition No. 636 of 2005 was disposed of by
the High Court with the following directions:
9
Page 10 i.“That petitioner shall deposit the entire
balance amount within a period of one month
alongwith interest @ 18% per annum, w.e.f.
July 2004 when the 2
nd
installment became
due
ii. Upon 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
1
Page 11 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 order.
Thereafter, again, the Appellant requested the
Respondents herein to hand over the possession of the
proposed site to the appellant. A Notice was issued by
the appellant to the MPRTC dated 12
th
September, 2005,
requesting to hand over possession of the land, in terms
1
Page 12 of the directions of the High Court dated 5
th
August,
2005.
16.At that stage, the Principal Secretary, Transport
Department/Respondent No. 2 herein, recorded a
note dated 15
th
September, 2005, questioning the
justification for constructing bus stand and observed
that the construction was not in public interest
particularly when a decision had been taken by the
State Government to wind up the MPRTC. Soon
thereafter, the MPRTC filed Special Leave Petition No.
20038 of 2005 before this Court challenging the
order dated 5
th
August, 2005 passed by the High
Court. This SLP was dismissed by this Court vide
order dated 7
th
October, 2005.
17.Possession of the proposed site still not having been
delivered, the Appellant filed Contempt Petition No.
466 of 2005 (renumbered as Contempt Petition No.
469 of 2008) before the High Court of Madhya
1
Page 13 Pradesh. In this Contempt Petition, the Appellant
moved an application for injunction on 11
th
November, 2005 (I.A. No. 1060 of 2005) restraining
the MPRTC from handing over the possession of the
proposed site to the State Government for
establishing the Regional Transport Office. The High
Court on 14
th
November, 2005, directed MPRTC to
maintain status quo and not to handover the
possession of the proposed site or to create any 3
rd
party interest. In spite of the aforesaid order, the
possession of the proposed site was handed over by
the MPRTC to the Transport Department on 16
th
November, 2005, for opening the R.T.O. A test
centre for driving licences has been established on
the land meant for the commercial complex.
18.In the meantime, State of Madhya Pradesh moved
an application, MCC No. 1072 of 2005 , before the
High Court, seeking recall of the order dated 5
th
August, 2005 passed in Writ Petition No. 636 of 2005.
1
Page 14 The MPRTC also filed MCC No. 5 of 2006, seeking
identical relief, i.e. recall of order dated 5
th
August,
2005. It was claimed that a decision had been taken
by the M.P. State Government to wind up MPRTC. On
23
rd
March, 2005, MPRTC had been issued a notice of
demand for recovery of Rs.2387/- crores as Tax dues.
The property earmarked for the commercial complex,
was one of the properties seized by the State
Authorities on 19
th
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 5
th
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.
1
Page 15 This I.A. was allowed by the High Court by order
dated 6
th
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 acquisition of property/land
was sent by RTO, Indore to the State
Government (Original Letters, original
dispatch register). And on what date, by
which the inward number this information
was received.”
1
Page 16 According to the Appellant, the respondents could
not furnish the said information to the Court, despite
having sought a number of opportunities in that regard.
20.Meanwhile on 2
nd
November, 2007, the IDA
cancelled the lease of the MPRTC for violation of the
lease terms by running the RTO. Cancellation of the
lease was challenged by the MPRTC through Writ
Petition No. 6770 of 2007 in the High Court of
Madhya Pradesh. On 11
th
December, 2007, the
High Court without issuing notice to the Appellant,
who was impleaded as Respondent No.3, disposed of
the Writ Petition with the following observations:-
“When two instrumentalities of the State,
such as in the present case, choose to bring
their disputes in open court, the loss is of the
general public. The public confidence in the
credibility of the State Govt. and its various
wings/functionaries and its instrumentalities
comes at stake.
1
Page 17 In these circumstances, I do not find that this
Court should continue with the proceedings in
the present Petition. I deem it appropriate to
request the Chief Secretary, State of Madhya
Pradesh, to take up the matter at his level
and after holding a meeting with the Principal
Secretary, Transport Department, Principal
Secretary, Housing and Environment
Department and the Managing Director of the
M.P. Road Transport Corporation Ltd. take
such further action, as may be deemed
appropriate, in the facts and circumstances
of the case. However, the Chief Secretary
shall ensure that the officers of the State
Government and various other
instrumentalities of the State Government
are not allowed to bring out their inter se
disputes in public in future”.
21.On 17
th
November, 2008, the Central Government,
Department of Transport & Highways informed the
State Government of Madhya Pradesh that the
request for permission for closure of MPRTC under
the provisions of the Road Transport Corporation Act,
for which earlier no-objection had been given, was
1
Page 18 being declined keeping in view the decision of
Ministry of Labour & Employment, and that it would
now have to continue its current operations.
22. The Appellant submitted representation
dated 20
th
February, 2009, wherein attention of 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 4
th
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.
1
Page 19 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 Madhya
Pradesh. It was inter alia contended that the
directions in aforesaid clauses were in violation of
order dated 5
th
August, 2005 of the High Court and in
violation of the principles of natural justice.
1
Page 20 25.The High Court disposed of the Writ Petition
on 27
th
September, 2012 with the following
observations:-
“15.The order dated 5.8.2005 passed in Writ
Petition No. 636/2005 directing the corpora-
tion to deliver possession of site to the peti-
tioner cannot be implemented after the lease
deed was cancelled by the IDA. It is this can-
cellation which became the subject matter of
writ petition No.6770/2007 and the writ peti-
tion was decided vide order dated
11.12.2007 by another Single Judge Bench di-
recting the Chief Secretary for resolving the
dispute. As already mentioned above, the
petitioner did not challenge the order dated
11.12.2007 and submitted a detailed repre -
sentation dated 20.02.2009 to the Chief Sec-
retary. The impugned decision taken by the
Chief Secretary is in pursuance of the direc-
tions given by the High Court in Writ petition
No. 6770/2007 in which the petitioner was
also a party. There is, thus, no violation of
the principles of natural justice. The decision
reached by the Chief Secretary directs that
the entire amount paid by the petitioner be
returned to it with interest. The decision
does not fix the rate of interest but we feel
that 9% will be the proper interest having re-
gard to all the circumstances. In view of the
direction to return the amount with interest,
as decided by us, there would be apparently
no loss to the petitioner. The respondents
are directed to return the amount with inter-
est within four months from today. If the pe-
2
Page 21 titioner still feels that there has been a
breach of contract, it can pursue the remedy
of specific performance or damages before a
competent civil court. We, therefore, decline
to interfere with the decision of the Chief Sec-
retary except fixing the rate of interest, as in-
dicated above.”
26.In view of the aforesaid directions, the High Court
also disposed of the Contempt Petition No. 469 of
2008, Review Application Nos. MCC No. 99 of 2009
and MCC No. 893 of 2008 without any further
directions.
27.We have heard the learned counsel for the parties.
28.Mr. R.F. Nariman and Mr. P.S. Patwalia, learned
senior counsel, appearing for the appellant submitted
that the reasoning adopted by the High Court 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 5
th
August, 2005 in Writ
Petition No. 636 of 2005 can not be implemented
2
Page 22 after cancellation of lease deed by the IDA. This,
according to the learned senior counsel, is without
any basis as by the order dated 22
nd
February, 2009,
the Chief Secretary had cancelled the lease deed.
Therefore, the order dated 2
nd
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
11
th
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 merely left it for the Chief
Secretary to decide the issue. Therefore, no cause
2
Page 23 had arisen to the appellant to challenge the order
dated 11
th
December, 2007. It is further pointed out
that the Chief Secretary in fact decided the
substance of the writ petition. Substance of the
grievance raised in the writ petition was decided in
favour of MPRTC by setting aside the order of
cancellation of the lease by the IDA. It is pointed out
by the learned senior counsel that IDA has not
challenged the order of the Chief Secretary
cancelling the direction of IDA with regard to the
cancellation of the lease.
29.Learned senior counsel further submitted that the
Chief Secretary was expected to take a decision in
accordance with law, i.e., in accordance with the
order of the High Court that has become final and
binding and not contrary to that. Furthermore, the
order of the Chief Secretary on directions (III), (IV)
and (V), which affect the rights of the appellant was
challenged in the writ petition in which the impugned
2
Page 24 judgment has been passed. According to the
appellant, the decision Nos. (I) and (II) were correct
and, therefore, there were no occasion to challenge
the same. The directions (III), (IV) and (V) are
contrary to Directions (I) and (II) and were beyond
the scope of the controversy raised in Writ Petition
No. 6770 of 2007, which had been referred to the
Chief Secretary by the High Court. The order of the
Secretary has been passed without issuing any
notice to the appellant, even though in the writ
petition, the appellant was impleaded as Respondent
No. 3. It is pointed out by the learned senior counsel
that by way of abundant caution, the appellant has
challenged the order dated 11
th
December, 2007, passed in Writ Petition No. 6770 of
2007 in S.L.P.(C) No. 36887 of 2012.
30.Next it was submitted by the learned senior counsel
that the actions of Madhya Pradesh Road Transport
Corporation (Respondent No.3) are in gross contempt
2
Page 25 of the orders dated 5
th
August, 2005, which have not
been purged till date. The aforesaid order has
become final after the dismissal of SLP (C) No. 20038
of 2005 on 7
th
October, 2005. It is
submitted that the Review Petition MCC No. 99 of
2009 filed on 2
nd
January, 2006 after dismissal of the
aforesaid SLP on 7
th
October, 2005 is an abuse of
process and not maintainable. In support of this
submission, learned senior counsel relies on
Meghmala & Ors. Vs. G. Narasimha Reddy &
Ors.
1
(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
1
(2010) 8 SCC 383
2
Page 26 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. Nariman,
would support the aforesaid submission, i.e. the
lease commences from 26.05.2004. In this context,
learned senior counsel rely upon the following cases:
DDA vs. Durga Chand Kaushish
2
; Ramkishore
2
(1973) 2 SCC 825
2
Page 27 Lal vs. Kamal Narian
3
and Sahebzada
Mohammad Kamgar Shah vs. Jagdish Chandra
Deo Dabhal Deo
4
. These cases reiterate the well
established principles of law relating to the
construction of deeds, which are as follows: first, that
the intention of the parties to a grant must be
ascertained first and foremost from the disposition
clause. Second, clear disposition by an earlier clause
will not be allowed to be cut down by a later clause;
and third, that a deed, being a grantor’s document,
has to be interpreted strictly against him and in the
favour of the grantee.
33.Mr. Nariman also submitted that the Respondents
cannot rely upon Clause 5E of the Agreement to
Lease, after the execution of the Lease Deed.
Substantiating this, it was submitted that the
Renewal Clause in the Agreement to Lease stood
superseded by the express terms of the Lease Deed
3
(1963) Supp (2) SCR 417
4
(1960) 3 SCR 604
2
Page 28 dated 26.05.2004. In this context, he relied upon
Provash Chandra Dalui vs. Biswanath Banerjee
5
and State of U.P. vs. Lalji Tandon.
6
34. Further according to Mr. Nariman, the terms of the
Agreement to Lease cannot be relied upon when a
specific provision has been provided in the Lease
Deed itself, which provides for extension of the lease.
Clause (1) of the Lease enables the IDA to extend the
lease for which neither the renewal nor permission of
the State Government is necessary.
35.The argument of the Respondents that the
Agreement of the MPRTC with the Appellant has been
frustrated was sought to be countered by Mr.
Nariman. It was submitted that self induced
frustration cannot be a basis to frustrate a valid
agreement. In this context, it was contended that the
submission of the Respondents that MPRTC is being
5
(1989) Supp (1) SCC 487(Para14)
6
(2004) 1 SCC 1 (Para 13).
2
Page 29 wound up is not tenable since such winding up is the
result of an act of the Party itself. Reliance placed
upon Boothlinga Agencies vs. V.T.C.
Poriaswami Nadar
7
, wherein it was inter alia held
that “the doctrine of frustration of contract cannot
apply where the event which is alleged to have
frustrated the contract arises from the act or election
of a party.” It was also contended that commercial
exigencies can never lead to frustration. Reliance
was placed upon Pollock and Mulla, 14
th
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
7
(1969) 1 SCR 65, at Page79
2
Page 30 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 5
th
Respondent - Indore Development Authority
has submitted that by an agreement dated 2
nd
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
land was handed over on 22
nd
January, 1982. The
first installment of the premium and leased rent was
deposited on 3
rd
October, 1980. The
3
Page 31 lease was to be for a period of 30 years subject to
renewal. The lease was to subsist in the first
instance upto 21
st
January, 2012 but was terminated
on 2
nd
July, 2007, i.e., before the expiry of the period
of 30 years from the date of possession. MPRTC had
challenged the aforesaid decision in Writ Petition No.
6770 of 2007. Since the appellant had no privity of
contract with IDA, it could not have challenged the
termination of the lease on 2
nd
July, 2007 and did not
do so. Since the dispute was between two
Government organizations, the High Court rightly
remitted the matter to the Chief Secretary of the
State of Madhya Pradesh for resolution. Even
though, the appellant was not a party to the
aforesaid writ petition filed by MPRTC, it had
submitted a representation on 22
nd
February, 2009.
The directions issued by the Chief Secretary were
challenged in Writ Petition No. 2937 of 2009 in which
the impugned judgment has been passed. The
submissions of Mr. Cama in brief are:-
3
Page 32 (i)That there was no privity of contract between
IDA and Sri Ram Builders, i.e., the appellant.
Therefore, the High court has rightly granted
liberty to the appellant to file a Civil Suit, if so
advised.
(ii)The cancellation of the lease by IDA has
become final. This has not been challenged
by the appellant. Therefore, no Mandamus
can be issued to IDA, to permit the appellant
to construct the Bus Stand and commercial-
cum-residential complex. Mr. Cama further
submitted that the lease commences
from 22
nd
January, 1982 when possession was
handed over and expired on 21
st
January,
2012 upon completion of 30 years period of
the lease. It is further submitted that MPRTC
can not claim automatic renewal of the lease.
It would be subject to the consent of IDA and
the State Government. No application had
3
Page 33 been filed for such extension. In any event,
the lease has come to an end by the efflux of
time. Mr. Cama further submitted that IDA
had given a lease in favour of MPRTC. Under
the said lease, MPRTC had no authority to
create further third party rights. Wrongly,
according to Mr. Cama, MPRTC under the
tender conditions / contract entered into with
the appellant had given it the right to sell
proposed commercial premises, and to
collect premium on such 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
3
Page 34 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 5
th
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 that they are now
willing to repay Sri Ram and hence
3
Page 35 prayed for recall of order dated. 5.8.05 –
which was also pending;
(v)Where SLP is dismissed without giving
reasons, there is no merger of the
judgment of the HC with the order of SC.
Hence judgment of HC can be reviewed,
even after dismissal of SLP. Reliance
was placed upon Gangadhara Palo vs.
The Revenue Divisional Officer & Anr.
[2011 (4) SCC 602]
39.It is submitted that construction of bus terminal on
B.O.T. basis was a commercial transaction between
MPRTC and the appellant. Even if the cancellation is
not legal, this Court will not interfere in this decision
as it was purely contractual in nature. He relies on
the judgments of this Court in the case of Rajasthan
Housing Board & Anr. vs. G.S. Investments &
Anr.
8
and Ramchandra Murarilal Bhattad & Ors.
vs. State of Maharashtra & Ors.
9
8
(2007) 1 SCC 477
9
(2007) 2 SCC 588
3
Page 36 40.It is submitted that the arguments of the appellant
that the lease, which was granted in the first
instance for 30 years was intended to continue
(automatically) for a further period of 30 years in
terms of clause 1 of the aforesaid lease deed is
untenable. Even otherwise the submission can not
be considered as there were no pleadings to this
effect either in the original petition or in the grounds
of SLP. In any event, according to the respondents,
the initial period of the lease was for 30 years.
Furthermore, Paragraph/Clause 5(E) of the
agreement to lease makes it clear that after
termination of the lease period, it can be extended
after renewal; that too only with the consent of
MPRTC and IDA and further obtaining sanction of the
State Government. According to Mr. Cama, two short
questions would arise namely:-
(i)From what date, the period of 30 years is to
be counted?
3
Page 37 (ii)Whether there is an automatic extension of
lease?
41.It is according to Mr. Cama, admittedly possession
of the property was given to MPRTC on 21
st
January,
1982. This premium, as well as the first lease rent
had been deposited on 3
rd
October, 1980. It is also
an admitted position that the lease rent for the entire
period of 1982 onwards has in fact been paid by
deposit of premium plus 15 years lease rent. It is
reiterated by Mr. Cama that admitted date of actual
possession by the lesser is 22
nd
January, 1982.
Therefore, the first period of lease expired by efflux
of time on 21
st
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. Vs.
3
Page 38 Hede and Company
10
(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 5
th
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 & Ors. vs. State of Kerala &
Anr.
11
and Gangadhara Palo vs. Revenue
Divisional Officer & Anr.
12
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
10
(2007) 5 SCC 614
11
(2000) 6 SCC 359
12
(2011) 4 SCC 602(Para 7)
3
Page 39 the order in toto. If the complete order is accepted,
the termination of the lease is set aside, the property
would return to IDA with compensation to the
appellant. In the event, the order is completely set
aside, the termination of the lease remains in force
and the property returns to the IDA. In either case,
the land returns to the IDA. Mr. Cama submits that
the order passed by the Chief Secretary is a
comprehensive order and can not be permitted to be
challenged in a truncated manner.
43.We have considered the submissions made by the
learned counsel for the parties.
44.Before we proceed to examine the submission
made by Mr. Nariman, it would be appropriate to cull
out the bare essential facts for the determination of
the controversy herein. A lease deed dated 2
nd
November, 1981 was entered into between MPRTC
and IDA. The possession of the land was handed over
3
Page 40 to MPRTC on 22
nd
January, 1982. Initially, the lease
was taken by the MPRTC for the purpose of a bus
stand. It appears that no final decision was taken till
8
th
November, 2001 when the Council of Ministers of
the State Government authorized the construction of
a commercial complex on the land under BOT
Scheme. A tender notice was issued on 13
th
April,
2002. On 7
th
July, 2003, the bid of the appellant was
found to be the highest. The amount as mentioned in
Para 6 earlier, was duly paid by the appellant. A
separate agreement was entered into between
MPRTC and the appellant on 4
th
February, 2004 which
read alongwith the tender document provided as
under:
“The successful promoters/builders will
have the right to market the saleable
space made available to him on
different floors in the commercial
complex, collect premium on such
allotment from prospective buyers.”
45. On 25
th
May, 2004, MPRTC deposited the lease
rental with IDA. A formal lease was executed on
4
Page 41 26
th
May, 2004. As noticed earlier, the lease was for
30 years. The leased land (plot) was to be used only
for the bus terminal. It was specifically provided that
the plot cannot be divided. The possession of the plot
had been received on 22
nd
January, 1982. The lease
also provided that the Rules published in the gazette
on 16
th
December, 1977 shall be binding on the
lessee. Rule 40 of the aforesaid Niyam/Rules read as
under :
“The lessee may take possession of the
plot on the date fixed or notified to him
for taking over possession of the 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 24
th
June, 2004, IDA gave its no objection for bus
terminal-cum-commercial complex to be constructed
under the BOT Scheme. On 18
th
December, 2005, the
State Government decided to wind up the MPRTC.
The proposal of the State Government was not
4
Page 42 approved by the Ministry of Shipping and Road
Transport, Government of India. On 17
th
November,
2008, a letter was issued informing the State
Government that the Ministry of Labour had declined
to grant permission for closure under Section 25-O of
the Industrial Disputes Act, 1947. On 5
th
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 7
th
October, 2005. In the contempt petition filed
by the appellant for non compliance of the directions
of the High Court dated 5
th
August, 2005, MPRTC
was restrained from handing over the possession of
the property or to create third party interest/rights.
On 2
nd
November, 2007, the lease was cancelled by
IDA on the ground that MPRTC had violated the
prescribed conditions by handing over the possession
to RTO. As noticed earlier, the cancellation of the
lease was challenged by MPRTC, by way of a writ
petition, which was disposed of by the High Court on
4
Page 43 11
th
December, 2007 by referring the entire issue to
the Chief Secretary. The appellant did not challenge
the order dated 2
nd
November, 2007 but submitted to
the jurisdiction of the Chief Secretary by filing a
comprehensive representation. Even in the writ
petition in which the impugned order had been
passed, the appellant had only challenged Clauses III,
IV and V of the order of the Chief Secretary.
47. We shall now consider the submission of
Mr. Nariman, seriatim. Can the order dated
5
th
August, 2005 be implemented and should the
appellant be permitted to go ahead with the
construction of commercial complex-cum-bus stand.
Undoubtedly, the SLP filed by MPRTC against the
order dated 5
th
August, 2005 in Writ
Petition No.363 of 2005 has been dismissed by this
Court, but it was a dismissal in limine without
recording any reason. Therefore, the judgment of the
High Court cannot be said to have merged with the
4
Page 44 order of this Court. In Kunhayammed (supra), this
Court considered the effect of the dismissal of the
SLP in limine. This Court reiterated the ratio laid
down by this Court in Indian Oil Corporation Ltd.
vs. State of Bihar & Ors.
13
which considered the
impact of the order dismissing the SLP with the
following expression:
“The special leave petition is dismissed.”
Considering the aforesaid order of this Court in
Indian Oil Corporation Ltd. (supra), it has been
observed as follows:
“The effect of a non-speaking order of
dismissal of a special leave petition
without anything more indicating the
grounds or reasons of its dismissal
must, by necessary implication, be
taken to be that this Court had decided
only that it was not a fit case where spe-
cial leave should be granted. This con-
clusion may have been reached by this
Court due to several reasons. When the
order passed by this Court was not a
speaking one, it is not correct to assume
that this Court had necessarily decided
implicitly all the questions in relation to
13
(1986) 4 SCC 146
4
Page 45 the merits of the award, which was un-
der challenge before this Court in the
special leave petition. A writ proceeding
is a wholly different and distinct pro-
ceeding. Questions which can be said to
have been decided by this Court ex -
pressly, implicitly or even constructively
while dismissing the special leave peti-
tion 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 pro-
ceeding namely, the writ proceeding be-
fore the High Court merely on the basis
of an uncertain assumption that the is-
sues 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., it does not assign
reasons for dismissing the special leave
petition, it would neither attract the doc-
trine of merger so as to stand substi-
4
Page 46 tuted in place of the order put in issue
before it nor would it be a declaration of
law by the Supreme Court under Article
141 of the Constitution for there is no
law which has been declared.”
49.The aforesaid ratio in Kunhayamed (supra) is
reiterated by this Court in Gangadhara Palo
(supra):
“7. The situation is totally different
where a special leave petition is dis-
missed without giving any reasons what-
soever. It is well settled that special
leave under Article 136 of the Constitu-
tion of India is a discretionary remedy,
and hence a special leave petition can
be dismissed for a variety of reasons
and not necessarily on merits. We can-
not say what was in the mind of the
Court while dismissing the special leave
petition without giving any reasons.
Hence, when a special leave petition is
dismissed without giving any reasons,
there is no merger of the judgment of
the High Court with the order of this
Court.”
50.Even though the order of the High Court had not
merged with the order passed by this Court in
dismissing the SLP, can the appellant be deprived of
the benefit of the order passed by the High Court on
4
Page 47 5
th
August, 2005? Mr. Nariman has submitted that
the order passed by the Chief Secretary on 11
th
December, 2007 even though on directions issued by
the High Court in Writ Petition No.6770 of 2007
cannot nullify the directions given by the High Court
earlier. The order passed by the Chief Secretary in its
executive capacity cannot have the effect of
nullifying the order passed by the High Court on
5
th
August, 2005. On first blush, the submission made
by Mr. Nariman seems to be very attractive, but
factually it has to be noticed that much more water
has flown under the bridge since the passing of the
order dated 5
th
August, 2005. Subsequently, the
lease to MPRTC was cancelled on 2
nd
November,
2007 by the IDA. The appellant did not challenge the
order dated 2
nd
November, 2007 passed
by the IDA. The aforesaid order was challenged by
MPRTC in Writ Petition No.6770 of 2007. On 11
th
December, 2007, the High Court without issuing
notice to the appellant, who was impleaded as
4
Page 48 respondent No.3, disposed of the writ petition. The
High Court noticed that two instrumentalities of the
State have chosen to bring their disputes 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 20
th
February, 2009. The Chief Secretary in the meeting
held on 4
th
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 2
nd
November, 2007 and notice
dated 30
th
June, 2007 cancelling the lease of land
4
Page 49 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 Court of Madhya
Pradesh. It was, inter alia, contended that the
directions in the aforesaid clauses were in violation
of the order dated 5
th
August, 2005. It is noteworthy
that even in this writ petition, challenging the
direction Nos. III, IV and V issued by the Chief
Secretary, the appellant had not challenged the
competence of the Chief Secretary to decide the
issues. The appellant cannot now be permitted to
state that the aforesaid directions are without
jurisdiction. Under the orders of the Chief Secretary
dated 4
th
March, 2009, the possession of the land has
already been delivered to IDA. Therefore, it would
not be possible at this stage to direct that the
4
Page 50 mandamus granted on 4
th
August, 2005 in Writ
Petition No.636 of 2005 shall be enforced.
51.In the ultimate analysis, the whole controversy boils
down to a breach of contract by MPRTC entered into
with the appellant. The scope of judicial review is
very limited in contractual matters even where one
of the contracting parties is the State or an
instrumentality of the State. The parameters within
which power of judicial review can be exercised, has
been authoritatively laid down by this Court in a
number of cases.
In Tata Cellular vs. Union of India,
14
this court
upon detailed consideration of the parameters within
which judicial review could be exercised, has culled out
the following principles:
“70. It cannot be denied that the principles of
judicial review would apply to the exercise of
contractual powers by government bodies in
order to prevent arbitrariness or favouritism.
However, it must be clearly stated that there
are inherent limitations in exercise of that
14
(1994) 6 SCC 651
5
Page 51 power of judicial review. The Government is
the guardian of the finances of the State. It is
expected to protect the financial interest of
the State. The right to refuse the lowest or
any other tender is always available to the
Government. But, the principles laid down in
Article 14 of the Constitution have to be kept
in view while accepting or refusing a tender.
There can be no question of infringement of
Article 14 if the Government tries to get the
best person or the best quotation. The right
to choose cannot be considered to be an arbi-
trary power. Of course, if the said power is
exercised for any collateral purpose the exer-
cise of that power will be struck down.
* * *
77. The duty of the court is to confine itself to
the question of legality. Its concern should
be:
(1) Whether a decision-making authority ex-
ceeded 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 deci-
sion 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
5
Page 52 control by judicial review can be classified as
under:
(i) Illegality: This means the decision-maker
must understand correctly the law that regu-
lates his decision-making power and must
give effect to it.
(ii) Irrationality, namely, Wednesbury unrea-
sonableness.
(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 case put forward by the
appellant would not be covered by the aforesaid ratio
of law laid down by this Court. The High Court, in our
opinion, has rightly observed that the appellant can
seek the appropriate relief by way of a civil suit. The
High Court in exercise of its jurisdiction under Article
226 of the Constitution of India would not normally
grant the relief of specific performance of a contract.
This view is supported by Ramchandra Murarilal
Bhattad vs. State of Maharashtra.
15
This Court
relying upon the earlier decision in Noble
15
(2007) 2 SCC 588
5
Page 53 Resources Limited vs. State of Orissa
16
held as
under:
“50. …this Court would not enforce specific
performance of contract where damages
would be adequate remedy. It was also held
that conduct of the parties would also play an
important role.
51. The expansive role of courts in exercising
its power of judicial review is not in dispute.
But as indicated hereinbefore, each case
must be decided on its own facts.”
53. At no stage, the appellant had any privity of
contract with IDA. MPRTC entered into a BOT
contract with the appellant contrary to the terms and
conditions of the lease which provided specifically
that the land shall be used for constructing a bus
stand–cum commercial complex. MPRTC had no legal
right to create any further right in favour of the
appellant with regard to the receiving of the
premium on the constructed units sold to third
party(ies). Even otherwise, the appellant seems to be
flogging a dead horse. Admittedly, the possession of
16
(2006) 10 SCC 236
5
Page 54 the proposed site was delivered to MPRTC on 22
nd
January, 1982. The maximum lease period was for 30
years. By efflux of time the aforesaid lease period
expired on 21
st
January, 2012. We do not accept the
submission of Mr. Nariman that as the entire rent had
been paid, MPRTC would be entitled to automatic
renewal of the lease for 90 years. The renewal clause
in the lease subsequently provides that the renewal
shall be with the consent of IDA. This consent by the
IDA is not a mere formality. We are, therefore, not
inclined to accept the submission of Mr. Nariman that
the term of the lease has to be understood to have
commenced from 26.05.2004.
54.This apart, there is much substance in the
submission of Mr. Cama that no application has been
filed even for this formal renewal by MPRTC. In any
event, MPRTC would not be in a position 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
5
Page 55 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
5
Page 56 summed up the legal position with regard to
frustration of contract as follows:-
“The doctrine of frustration of contract is re-
ally an aspect or part of the law of discharge
of contract by reason of supervening impossi-
bility or illegality of the act agreed to be done
and hence comes within the purview of Sec -
tion 56 of the Indian Contract Act. It should
be noticed that Section 56 lays down a rule of
positive law and does not leave the matter to
be determined according to the intention of
the parties.
In English law therefore the question of frus-
tration of contract has been treated by courts
as a question of construction depending upon
the true intention of the parties. In contrast,
the statutory provisions contained in Section
56 of the Indian Contract Act lay down a posi-
tive rule of law and English authorities cannot
therefore be of direct assistance, though they
have persuasive value in showing
how English courts have approached and de -
cided cases under similar circumstances.”
We fail to see how the aforesaid observations are
of any relevance in the facts and circumstances of this
case.
56. We are also unable to accept the submission of
Mr. Nariman that the Doctrine of Frustration would
not apply in the facts of this case as it is a self
5
Page 57 induced frustration. The aforesaid expression seems
to have been borrowed from certain observations
made by the Judicial Committee in the case of
Maritime National Fish, Limited vs. Ocean
Trawlers, Limited
17
. The facts of that case, as
narrated in Boothalinga Agencies (supra), would
indicate that in that case, the respondents chartered
to the appellants a steam trawler fitted with an otter
trawl. Both the parties knew at the time of the
contract that it was illegal to use an otter trawl
without a licence from the Canadian government.
Some months later the appellants applied for
licences for five trawlers which they were operating,
including the respondent’s trawler. They were
informed that only three licences would be granted,
and were requested to state for which of the three
trawlers they would like to have the licences. They
named three trawlers other than the respondent’s
trawler, and then claimed that they would not be
17
(1935) A.C. 524
5
Page 58 bound by the trawler of the respondent as it was
frustrated. It was held by the Judicial Committee that
the failure of the contract was the result of the
appellant’s own election, and, therefore, no
frustration of the contract.
57.This Court distinguished the aforesaid judgment and
observed as follows:-
“We think the principle of this case applies to
the Indian law and the provisions of Section
56 of the Indian Contract Act cannot apply to
a case of “self-induced frustration”. In other
words, the doctrine of frustration of contract
cannot apply where the event which is
alleged to have frustrated the contract arises
from the act or election of a party. “
58.In our opinion, these observations are of no
assistance to the appellant as in this case, the lease
has come to an end by efflux of time. This apart,
MPRTC is heavily indebted and had sought
permission of the State and the Union of India to
wind up. Furthermore, there was also a breach of the
terms and conditions of the lease on the basis of
which it has been terminated in accordance with law.
5
Page 59 59.In any event, these are issues which would involve
adjudication of disputed questions of fact which can
only be suitably adjudicated in the civil suit as
directed by the High Court in the impugned
judgment. The appellant shall be at liberty to seek its
remedies against MPRTC for breach of contract. Our
conclusion that the High Court was right in rejecting
the contentions of the Appellant herein is also
supported by the law laid in Rajasthan Housing
Board vs. G.S. Investments (supra) which was
relied upon by Mr. Cama. We may notice here the
following excerpt:
“..the Court should exercise its
discretionary power under Article 226 of
the Constitution with great care and
caution and should exercise it only in
furtherance of public interest. The Court
should always keep the larger public
interest in mind in order to decide
whether it should interfere with the
decision of the authority.”
5
Page 60 60.Also, we are not much impressed by the submission
of Mr. Nariman that the order passed by the High
Court on 11
th
December, 2007 has been challenged
by the companion SLP (C) No 36887 of 2012. The
aforesaid SLP has been filed merely to get over the
earlier lapse of not challenging the order of the High
Court at the appropriate time. Having submitted to
the jurisdiction of the Chief Secretary, it would not be
open to the appellant to challenge the order dated
11
th
December, 2007.
61.For the aforesaid reasons, we see no merit in the
appeals. The civil appeals are, therefore, dismissed.
……………………………… .J.
[Surinder Singh Nijjar]
………………………………..J.
[A.K.Sikri]
New Delhi;
April 25, 2014.
6
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