{"id":114310,"date":"2011-03-16T00:00:00","date_gmt":"2011-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayant-vs-vadodara-on-16-march-2011"},"modified":"2015-09-07T11:12:31","modified_gmt":"2015-09-07T05:42:31","slug":"jayant-vs-vadodara-on-16-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayant-vs-vadodara-on-16-march-2011","title":{"rendered":"Jayant vs Vadodara on 16 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Jayant vs Vadodara on 16 March, 2011<\/div>\n
Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice K.A.Puj,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/12867\/2007\t 25\/ 25\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 12867 of 2007\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 10105 of 2007\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.H.WAGHELA  \nHONOURABLE\nMR.JUSTICE K.A.PUJ\n \n \n=========================================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To
\n\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=========================================================<\/p>\n
JAYANT
\nSHANTILAL SANGHVI & 2 – Petitioner(s)<\/p>\n
Versus<\/p>\n
VADODARA
\nMUNICIPAL CORPORATION & 1 – Respondent(s)<\/p>\n
=========================================================<\/p>\n
Appearance
\n:\n<\/p>\n
MR
\nSHALIN N MEHTA for Petitioners.\n<\/p>\n
MR PRANAV G DESAI for
\nRespondents.\n<\/p>\n
=========================================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE D.H.WAGHELA<\/p>\n
and<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE K.A.PUJ<\/p>\n
Date
\n: 16\/03\/2011  <\/p>\n
COMMON
\nCAV JUDGMENT <\/p>\n
(Per
\n: HONOURABLE MR.JUSTICE K.A.PUJ)<\/p>\n
\tSince
\n\tcommon issue is involved in both these petitions, the same are heard
\n\ttogether and are being disposed of by this common judgment and
\n\torder.\n<\/p>\n
\tSpecial
\n\tCivil Application No.10105 of 2007 is filed by the petitioner,
\n\tnamely, Star Infrastructure requesting this Court to allow the
\n\tpetitioner to rescind and repudiate its original contract with the
\n\tCorporation concerning the sale to it of Final Plot Nos.98 & 162
\n\tby holding that the Corporation has unilaterally altered the
\n\toriginal terms of the auction sale vide order dated 23.03.2007, and
\n\tthat has resulted in a material variation of the original auction
\n\tterms.  The petitioner has also prayed for the direction to the
\n\tCorporation to refund the Earnest Money Deposit (EMD) of a sum of
\n\tRs.10 Lacs given by the petitioner on 07.02.2007 to the respondent
\n\tCorporation.  The petitioner has further prayed for the direction
\n\tcommanding the Corporation not to forfeit the EMD of a sum of Rs.10
\n\tLacs deposited by the petitioner with the respondent Corporation.
\n\tThe petitioner has further made alternative prayer for quashing and
\n\tsetting aside the impugned condition requiring the petitioner to pay
\n\tpremium of an amount equal to 20% of the sale price of the Final
\n\tPlot in case of a further sale, which is inserted \/ added by the
\n\trespondent Corporation after the auction held and conducted on
\n\t08.02.2007.  Lastly, the petitioner has prayed for the declaration
\n\tfrom this Court that the auction of the respondent Corporation of
\n\tinserting \/ adding the impugned condition as being inconsistent and
\n\tincompatible with the provisions of the Indian Contract Act, 1872,
\n\tis violative of constitutional provisions like Articles 14, 19 &
\n\t21 of the Constitution of India and illegal and null and void.\n<\/p>\n
\tSpecial
\n\tCivil Application No.12867 of 2007 is filed by Triveni Developers
\n\tmaking more or less similar prayers as that of the petitioner in
\n\tSpecial Civil Application No.10105 of 2007, in connection with the
\n\tFinal Plot Nos.24, 142 & 143.  Over and above the said prayers,
\n\tthe petitioner has also prayed for the direction to the respondent
\n\tCorporation to refund 10% of the initial payment made for Final Plot
\n\tNos.24, 142 and 143 aggregating to a sum of Rs.1,70,75,500\/-.\n<\/p>\n
\tIn
\n\tSpecial Civil Application No.10105 of 2007, notice was issued by
\n\tthis Court on 16.04.2007.  On 12.06.2007, this Court passed order
\n\tdirecting the respondents not to forfeit the EMD.  On 10.12.2007,
\n\tthe petition was admitted and the stay granted against forfeiture of
\n\tthe EMD was continued with a clarification that in the meantime, the
\n\tpetitioner would make a representation to the respondents for refund
\n\tof the EMD within one week from the date of the said order and the
\n\trespondents would thereafter decide the representation by
\n\t31.01.2008.  The Court has also made it clear that the petition was
\n\tnow confining to the prayer for refund of the EMD and the petitioner
\n\twould not claim any right in respect of the land in question.\n<\/p>\n
\tSimilarly,
\n\tin Special Civil Application No.12867 of 2007, notice was issued on
\n\t10.05.2007 and ad-interim relief was granted in terms of paragraph 7
\n\t(E).  It was ordered to be heard along with Special Civil
\n\tApplication No.10105 of 2007.  This petition is also admitted on
\n\t10.12.2007 and Court has passed detailed order directing the
\n\trespondent Corporation to refund the amount of Rs.1,70,75,500\/- to
\n\tthe petitioner within one week from the date of the said order and
\n\twith regard to the EMD of Rs.10 Lacs, the petitioner was directed to
\n\tmake a representation to the respondent Corporation on the same line
\n\tas indicated in the order passed in Special Civil Application
\n\tNo.10105 of 2007. The Court has also made it clear that the petition
\n\twas confining to the prayer for refund of EMD of Rs.10 Lacs and for
\n\tthe interest on the amount of Rs.1,76,75,500\/- for the period from
\n\t13.02.2007 till the date of refund.\n<\/p>\n
\tPursuant
\n\tto the aforesaid order, the petitioners made representation on
\n\t17.12.2007 which came to be rejected by the respondent Corporation
\n\ton 21.02.2008.  Both the petitions have thereafter come up for
\n\thearing on 19.01.2011 and after hearing the parties to some extent,
\n\tthe Court has passed a common order on that day observing therein
\n\tthat in order to take last chance for an amicable and reasonable
\n\tsettlement, the petitioners have agreed to make, within two days, a
\n\tconcise and precise representation clearly stating their claim and
\n\tthe amounts proposed to be waived in consideration of immediate
\n\tpayment and end of the litigation; and it is agreed on behalf of the
\n\trespondent that such representation shall be duly considered and
\n\tdecided in writing by the Commissioner of respondent- Corporation
\n\twithin a period of ten days of receipt of the representation,
\n\twithout being influenced by the earlier decision and proceedings.\n<\/p>\n
\tPursuant
\n\tto the said order, the petitioners again made representation on
\n\t21.01.2011 which came to be rejected by the Commissioner vide his
\n\torder dated 08.02.2011 which is placed on record by the respondent
\n\tCorporation along with affidavit filed on 10.02.2011.\n<\/p>\n
\tIn
\n\tthe above background of the matter, both these petitions are heard
\n\tat length.  Mr. Shalin Mehta, learned advocate appearing for the
\n\tpetitioners in both these petitions has made the following
\n\tsubmissions for their prayer of refund of EMD with interest @ 9%
\n\tp.a. from 08.02.2007 till the date of payment. Mr.Mehta has,
\n\thowever, waived on instruction, the claim regarding interest on
\n\tRs.1,70,75,500\/- for the period from 13.2.2007 to 21.2.2008.\n<\/p>\n
\tA
\n\tmaterial alteration in terms and conditions of the auction sale
\n\tcannot be done without consent of the bidder.  In the present case,
\n\tthe respondent Corporation has imposed additional conditions over
\n\tand above the original terms and conditions of the auction sale by
\n\torder dated 23.03.2007 without consent of the petitioners.\n<\/p>\n
\t20%
\n\tpremium condition never existed before the auction sale held on
\n\t08.02.2007.  it also did not find any mention in the original terms
\n\tand conditions of the auction sale supplied to the petitioner.  A
\n\tcondition that did not exist at the time the auction sale was held
\n\tcannot be incorporated subsequently without notice to the bidder.
\n\tIn other words, such imposition of a new condition cannot be
\n\tunilateral.  Otherwise, it would be contrary to the basic notions of
\n\tfair play and good faith.  The respondent Corporation has
\n\tunilaterally incorporated the 20% premium condition to form a part
\n\tof the original terms and conditions of the auction sale by order
\n\tdated 23.03.2007.  This is absolutely contrary to all notions of
\n\tfair play and good faith.\n<\/p>\n
\tUnder
\n\tSection 7 of the Indian Contract Act, 1872, acceptance of an offer
\n\tmust be absolute and unqualified.  A conditional acceptance is no
\n\tacceptance at all.  The petitioners’ offer of price for the plots
\n\twas governed by the original terms and conditions of the auction
\n\tsale.  This offer of the petitioners was required to be accepted or
\n\trejected by the respondent Corporation under the same terms and
\n\tconditions of the auction sale. However, the respondent
\n\tCorporation’s acceptance by order dated 23.03.2007 is a conditional
\n\tacceptance in as much as totally new condition which does not form
\n\tpart of the original terms and conditions of the auction sale, was
\n\tinserted.  This makes the respondent Corporation’s acceptance
\n\tconditional acceptance and, therefore, no acceptance under Section 7
\n\tof the Indian Contract Act, 1872.  In support of this submission,
\n\treliance is placed on the decision of the Orissa High Court in the
\n\tcase of Vishwa Industrial Co. Limited V\/s. Mahanandi Coal Fields
\n\tLimited and others, AIR 2007 Orissa 71.\n<\/p>\n
\tUnilateral
\n\tvariation by Vadodara Municipal Corporation of the original terms
\n\tand conditions of the auction sale is arbitrary and capricious and
\n\tviolative of Article 14 of the Constitution of India. If the
\n\tpetitioner had been informed in advance of the 20% premium
\n\tcondition, he would have never made any bid.  The 20% premium
\n\tcondition is a fundamental variation as it creates additional
\n\tliabilities and obligations on the petitioners. Under Section 108\n<\/p>\n
\t(j) of the Transfer of Property Act, 1882, a right of further
\n\ttransfer to a sub-lessee in absence of a written contract to the
\n\tcontrary is recognized.  Thus, under the terms and conditions of the
\n\tauction sale, the petitioner had a right under Section 108 (j) to
\n\teffect a further transfer without any condition of qualification.
\n\tHowever, the 20% premium condition imposed unilaterally by the
\n\trespondent Corporation takes away or appropriates the petitioners’
\n\tstatutory right under Section 108 (j) to effect a further transfer
\n\tof the property without any condition or qualification.  Severe
\n\tprejudice is caused to the petitioners.\n<\/p>\n
\tThe
\n\tpetitioners are entitled to withdraw its offer as the 20% premium
\n\tcondition imposed unilaterally by the respondent Corporation amounts
\n\tto a counter offer, and which counter offer, is not accepted by the
\n\tpetitioners.\n<\/p>\n
\tThe
\n\trespondent Corporation’s contention that 20% premium condition is
\n\tbinding on the petitioners as the same was made known to the bidders
\n\torally on the day of the auction, is not required to be taken into
\n\tconsideration, for the simple reason that once the contractual terms
\n\tare reduced in writing, no oral evidence can be adduced to prove
\n\tthat a term that is not reduced to writing did form a part of the
\n\tcontract.  The respondent Corporation is, therefore, wrong in
\n\tcontending that since the 20% premium condition was made known
\n\torally to the bidders at the time of auction, it now forms part of
\n\tthe original terms and conditions of the auction sale.\n<\/p>\n
\tThe
\n\trespondent Corporation is an agency and instrumentality of the
\n\tState.  It is bound by Part-III of the Constitution of India.
\n\tFairness and reasonableness must pervade all actions that the
\n\trespondent corporation takes.  The conduct of the respondent
\n\tCorporation of forcing 20% premium condition upon the innocent
\n\tbidders without a proper, full and fair disclosure strikes at
\n\tfairness and reasonableness.\n<\/p>\n
\tIn
\n\tsupport of the above submissions, Mr. Mehta relied on the decision
\n\tof the Apex Court in the case of Polymat India (P) Limited and
\n\tanother V\/s. National Insurance Company Limited and others, (2005) 9
\n\tSCC 174 wherein it is held that when terms of contract have been
\n\treduced to writing, it cannot be changed without mutual agreements
\n\tof both the parties.\n<\/p>\n
\tHe
\n\tfurther relied on the decision of the Apex Court in the case of
\n\tDelhi Development Authority and another V\/s. Joint Action
\n\tCommittee, Allottee of SFS Flats and others, (2008) 2 SCC 672
\n\twherein it is held that a party to the contract cannot at a later
\n\tstage, while a contract was being performed, impose terms and
\n\tconditions which were not part of the offer and which were based
\n\tupon unilateral issuance of office orders, but not communicated to
\n\tthe other party to the contract and which were not even a subject
\n\tmatter of the public notice.  Moreover, when a contract has been
\n\tworked out a fresh liability cannot be thrust upon a contracting
\n\tparty.  Any such act is impermissible in the eye of law.\n<\/p>\n
\tHe
\n\tfurther relied on the decision of the Patna High Court in the case
\n\tof M\/s. Scorpian Express Private Limited V\/s. Union of India and
\n\tothers, AIR 2009 PATNA 106 wherein it is held that unilateral
\n\taction of one contracting party to the prejudice of other party is
\n\tnot only dehors contractual obligation, but is also contrary to the
\n\tspecific provision of contract itself.  Such action was held to be
\n\tarbitrary and violative of Article 14 of the Constitution of India.\n<\/p>\n
\tLastly,
\n\tMr. Mehta relied on the decision of the Apex Court in the case of
\n\tSyed Israr Masood v\/s. State of Madhya Pradesh, AIR 1981 SC 2010
\n\twherein it is held that when the State Government has
\n\tsubstantially altered the contract, it was open to the plaintiff to
\n\trepudiate the contract and claim a refund of the first installment
\n\tof sale price.\n<\/p>\n
\tBased
\n\ton the above facts and circumstances of the case and the decided
\n\tcase law on the subject, Mr. Mehta has strongly urged that the
\n\trespondent Corporation be directed to refund the EMD with interest @
\n\t9% p.a. forthwith.\n<\/p>\n
\tMr.\n<\/p>\n
\tPranav G. Desai, learned advocate appearing for the respondent
\n\tCorporation, on the other hand and while opposing the petitions, has
\n\tsubmitted that there is no change of condition as alleged by the
\n\tpetitioners. The respondent Corporation has not inserted any new
\n\tcondition in the auction terms.  From the averments and documents
\n\tfurnished by the petitioners along with the petitions, it is very
\n\tclear that the condition was already there much prior to the auction
\n\tby resolution passed by the Standing Committee of the respondent
\n\tCorporation.  He further submitted that the petitioners were aware
\n\tabout this condition at the time of auction which was conveyed to
\n\tall the participants for all the plots as can be seen from the
\n\taffidavit filed on behalf of the respondent Corporation as well as
\n\tthe reasoned order passed by the Commissioner of the respondent
\n\tCorporation along with the affidavit filed on 10.02.2011.  He
\n\tfurther submitted that the auction is held on 08.02.2007 and prior
\n\tto the auction, public advertisement as well as the newspaper report
\n\twas given in the leading vernacular newspaper in the city of
\n\tVadodara dated 17.01.2007 regarding condition of 20% premium in the
\n\tevent of sub-lease of the property.  The auction was held on
\n\t08.02.2007.  Information was given much prior to the date of auction
\n\tand the petitioners wrote letters on 13.02.2007 i.e. within 5 days
\n\tfrom the date of auction.  The petitioners’ correspondence referred
\n\tto in the petitions are vague and uncertain about the exact date on
\n\twhich the alleged information came to the knowledge of the
\n\tpetitioners.  He further submitted that the petitioners were aware
\n\tabout the newspaper information of 17.01.2007 as well as about the
\n\tsaid condition.  There was a newspaper report of the same date of
\n\t17.01.2007 which clearly indicates the said condition.  Thus, it can
\n\tcertainly be proved that the petitioners were aware about the said
\n\tcondition even prior to the date of publication as well as from the
\n\tdate of public auction.  He has, therefore, submitted that the
\n\tdecision of the respondent Corporation produced on the record of
\n\tthis Court is just, legal, proper and in public interest and for
\n\tnon-payment of the auction bid price and\/or failure to fulfill the
\n\tterms and conditions of the auction terms, the respondent
\n\tCorporation is justified in forfeiting the EMD and the same is in
\n\tconsonance with the terms and conditions of the auction.  He further
\n\tsubmitted that the condition to levy 20% non-refundable premium in
\n\tthe case of further sub-lease is in public interest and the
\n\trespondent Corporation is justified in forfeiting the amount of EMD.
\n\t He further submitted that the petitioners’ claim for refund of EMD
\n\talong with interest is not tenable in law.  Even as per the interim
\n\torder, the petitions were kept pending only for consideration of
\n\trefund of EMD and nothing is indicated in the said order to consider
\n\tthe issue regarding interest on the EMD.  The relief prayed for by
\n\tthe petitioners in these two petitions is also in respect of the
\n\trefund of the EMD and there is no prayer with regard to claim of any
\n\tinterest amount.\n<\/p>\n
\tMr.\n<\/p>\n
\tDesai further submitted that 20% premium in case of sub-lease cannot
\n\tbe made ground for non-payment of tender amount as per the tender
\n\tterms and conditions.  The petitioners cannot take shelter of the
\n\tsame for the purpose of non-payment of the agreed tender price as
\n\tper the tender terms and conditions.  If the petitioners could
\n\tconvince and establish their case concerning the said condition, the
\n\tsame can be agitated so far as execution of sale deed in pursuance
\n\tof full payment of tender amount is concerned, but shelter of the
\n\tsame cannot be taken for the purpose of non-fulfillment of the terms
\n\tand conditions of the tender and, therefore, the respondent
\n\tCorporation is justified in not refunding the EMD.  He has,
\n\ttherefore, submitted that the action of the respondent Corporation
\n\tis just, legal and proper and in public interest and the petitioners
\n\tare not entitled to the relief of refund of EMD as well as the
\n\tinterest on such EMD, in view of the fact that the condition was not
\n\tintroduced subsequently and it was well within the knowledge of the
\n\tpetitioners.  The said condition was widely published.  It was
\n\timposed much prior to the auction date and the petitioners were
\n\taware about this condition which is made abundantly clear while
\n\tperusing the documents furnished along with the petitions.  He has,
\n\ttherefore, submitted that both the petitions deserve to be
\n\tdismissed.\n<\/p>\n
\t  Having
\n\theard learned counsel appearing for the parties and having
\n\tconsidered their rival submissions in light of the facts and
\n\tcircumstances of the case and terms and conditions of the tender –
\n\toriginal as well as revised, the Court is of the view that the
\n\trespondent Corporation is not justified in withholding the amount of
\n\tearnest money deposited by the petitioners and the said amount is
\n\tliable to be refunded with interest. At the out set, the Court makes
\n\tit clear that the amount of Rs.1,70,75,500\/- paid by the petitioner
\n\tof Special Civil Application No.12867 of 2007 being first
\n\tinstallment is already refunded to the petitioner pursuant to an
\n\tinterim order passed by this Court on 10.12.2007. Mr.Shalin Mehta,
\n\tlearned advocate appearing for the petitioner has waived the claim
\n\tof interest on this amount and hence the Court is not concerned with
\n\tthis point. The Court is, therefore, concerned only with the refund
\n\tof EMD with or without interest and, if any interest is to be
\n\tawarded, at what rate. It is borne out from the fact that only after
\n\taccepting the tender of the petitioners they were communicated that
\n\tany further sale of final plots by them would invite payment of
\n\tpremium of an amount equivalent to 20% of sale value of the
\n\trespective plot. Such a condition did not form part of public
\n\tadvertisement which was issued by the respondent Corporation on
\n\t13.1.2007, published in the vernacular newspaper known as “Gujarat
\n\tSamachar” on 14.1.2007. Such a condition also did not form
\n\tpart of the 21 terms and conditions of the auction sale. It is the
\n\tcase of the petitioners that they were never made aware of this
\n\tcondition of payment of premium equivalent to an amount of 20% of
\n\tthe sale value of the plot in case of a further sale, till the
\n\tauction was held, conducted and concluded by the respondent
\n\tCorporation. As against this the case of the respondent Corporation
\n\tis that, the auction in question was for lease of the concerned
\n\tfinal plot for a period of 99 years and not for sale of the plots or
\n\tsale of the plots on lease basis. The condition No.16(a) inserted
\n\tvide order dated 23.3.2007 requires the petitioners to pay premium
\n\tof an amount equivalent to 20% of the amount of bid of the
\n\tpetitioners, in case they decide to sub-lease the said final plots.
\n\tIt is also the case of the respondent that neither the said
\n\tcondition amounts to materially altering the original terms given to
\n\tthe bidders prior to the auction, nor does it amount to novation as
\n\talleged by the petitioners. According to the respondent Corporation
\n\tthis condition would only come into existence in contingency, if the
\n\tpetitioners were to sub-lease the property at a later stage. It is
\n\talso their case that it is not after the auction, but was prior to
\n\tauction that the concerned officers of the Corporation had informed
\n\tall the bidders regarding such a condition. The stand of the
\n\trespondent Corporation is that in past when the Corporation had
\n\tconducted auctions to lease out plots, very few parties participated
\n\tbecause of the reason that the Corporation did not permit the
\n\tsuccessful bidders to further lease the said plots. The Corporation,
\n\tvide a proposal dated 14.11.2006 by the Municipal Commissioner to
\n\tthe Secretary of the Corporation had, inter alia,
\n\tproposed to permit lease-holder to further sub-lease the property on
\n\tpayment of premium amounting to 20% of the value deposited by the
\n\tparty with the Corporation.\n<\/p>\n
\tThis proposal came to be adopted by way of Resolution dated
\n\t23.11.2006 by the Standing Committee of the respondent Corporation,
\n\twhereby it was decided to permit the lease-holder to sub-lease the
\n\tproperty on payment of premium equivalent to 20% of the amount
\n\tdeposited with the Corporation. The said Resolution by the Standing
\n\tCommittee of the respondent Corporation came to be approved by the
\n\tgeneral body of the respondent Corporation vide Resolution dated
\n\t2.1.2007. The said change brought about had also been reported in
\n\tvernacular various newspapers. It is also the stand of the
\n\trespondent Corporation that the petitioners could not claim to have
\n\tbeen taken by surprise nor could they claim that such a condition is
\n\talien to the whole process.\n<\/p>\n
\t The
\n\tabove contentions of the respondent Corporation were taken into
\n\tconsideration even while passing interim order on  10.12.2007 and
\n\tthe Court observed that even as per Municipal Corporation, though
\n\tthe Resolution was passed for imposing 20% premium upon
\n\tsub-lease of the land in question as far back on 23.11.2006 by the
\n\tStanding Committee, the same was neither incorporated in the terms
\n\tand conditions of the public auction issued in February, 2007 nor
\n\twas it contained in any written communication and hence the Court
\n\thas granted interim relief to the extent of paying back the amount
\n\tof the first installment to the petitioner. This observation holds
\n\tgood even for the purpose of refunding the EMD to the petitioners.
\n\tThere is nothing on record which establishes that prior to the order
\n\tdated 23.3.2007 the petitioners were ever informed in writing about
\n\tthe payment of premium of amount equivalent to 20% of the amount of
\n\tbid in case the petitioners decide to sub-lease the final plots. The
\n\tchange effected subsequent to the acceptance of the tender would
\n\ttherefore certainly entitle the petitioners to repudiate the
\n\tcontract.\n<\/p>\n
\t The
\n\tCourts have taken the view in similar such circumstances that where
\n\tthe terms of contract have been reduced to writing, it cannot be
\n\tchanged without mutual agreement of both the parties. In   Delhi
\n\tDevelopment Authority and another V\/s. Joint Action
\n\tCommittee (Supra) the
\n\tApex Court took the view that  a party to the contract cannot at a
\n\tlater stage, while contract was being performed, impose terms and
\n\tconditions which were not part of the offer. In  M\/s.
\n\tScorpian Express Private Limited V\/s. Union of India (Supra)
\n\tthe Patna High Court took the view that  unilateral action of one
\n\tcontracting party to the prejudice of other party is not only dehors
\n\tcontractual obligation, but is also contrary to the specific
\n\tprovision of contract itself. In  Syed
\n\tIsrar Masood v\/s. State of Madhya Pradesh (Supra)
\n\tthe Apex Court took the view that when the State Government has
\n\tsubstantially altered the contract, it was open to the plaintiff to
\n\trepudiate the contract and claim refund of the first installment of
\n\tsale price.\n<\/p>\n
\t In
\n\tShah
\n\tand Patel Construction Co. Vs. Baroda Municipal Corporation, 2009(1)
\n\tGLH 663,
\n\tthis Court took the view that the Municipal Commissioner while
\n\tpermitting change of conditions of auction had changed the basic
\n\tcondition of auction without putting other interested persons to
\n\tnotice and without prior approval of General Body. The Court,
\n\ttherefore, held that
\n\tthe action of the Municipal Commissioner is dehors the powers and is
\n\tbad in law.\n<\/p>\n
\t  Considering
\n\tthe above facts and circumstances of the case and the legal
\n\tposition, the Court is of the view that the petitioners are entitled
\n\tto get the refund of their EMD of Rs.10 lacs with interest at the
\n\trate of 7.5% per annum from the date of withdrawal of their offer
\n\ttill the date of payment. The respondent Corporation is, therefore,
\n\tdirected to grant the refund of Rs.10 lacs being amount of EMD with
\n\tinterest at the rate of 7.5% per annum as against their claim of
\n\tinterest @ 9% per annum to each of the petitioners within one month
\n\tfrom the date of receipt of the writ or from the date of receipt of
\n\tcertified copy of this order, whichever is earlier, failing which
\n\tthe Corporation would be liable to pay interest at the rate of 9%
\n\tp.a. for the subsequent period.  The Court has awarded interest to
\n\tthe petitioners, keeping in mind the fact that the amount is lying
\n\twith the respondent Corporation for more than four years, on which
\n\tthe Corporation, must have earned interest or it might have borrowed
\n\tless amount to that extent. Even otherwise, some of the plots in
\n\trelation to which the petitioners have repudiated the contract, were
\n\treauctioned and the Corporation is stated to have received much
\n\thigher amount. Thus, the Corporation has not suffered any monetory
\n\tloss.\n<\/p>\n
\t With
\n\tthese directions and observations, both these petitions are allowed
\n\tand rule is made absolute to the aforesaid extent without any order
\n\tas to costs.\n<\/p>\n
   (D. H. WAGHELA, J.) <\/p>\n
    (K. A. PUJ, J.)<\/p>\n
savariya<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Jayant vs Vadodara on 16 March, 2011 Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice K.A.Puj,&Nbsp; Gujarat High Court Case Information System Print SCA\/12867\/2007 25\/ 25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12867 of 2007 With SPECIAL CIVIL APPLICATION No. 10105 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-114310","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nJayant vs Vadodara on 16 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jayant-vs-vadodara-on-16-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jayant vs Vadodara on 16 March, 2011 - 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