TMI Blog2018 (4) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 OF 2018, CIVIL APPEAL NO. 3016 OF 2018, CIVIL APPEAL NOS. 3018-3019 OF 2018, CIVIL APPEAL NO. 2990 OF 2018, CIVIL APPEAL NO. 3017 OF 2018, CIVIL APPEAL NO. 2991 OF 2018, CIVIL APPEAL NO. 2992 OF 2018, AND CIVIL APPEAL NO. 2993 OF 2018 For the Appellant(s) : Mr. Guntur Prabhakar, AOR For the Respondent(s) : Mr. Prashant Chaudhary, AOR, Mr. Rameshwar Prasad Goyal, AOR, Mr. C. S. N. Mohan Rao, AOR, Mr. Annam D. N. Rao, AOR, Mr. Shashi Bhushan Kumar, AOR, Mr. Gaurav Juneja, Adv., Mr. Shikhar Srivastva, Adv.Mr. Sanjeev K. Kapoor, Adv., M/S. Khaitan Co., AOR, Ms. C. K. Sucharita, AOR, Mr. Venkateswara Rao Anumolu, AOR, Mr. K. Subba Rao, Adv., Mr. Aniruddha P. Mayee, AOR, Ms. Anu Gupta, AOR, Mr. Rakesh Dahiya, AOR, Mr. Satya Mitra, AOR, Mrs. Prabha Swami, AOR, Mr. Vikas Singh Jangra, AOR, Ms. Jennifer Rohita Xavier, Adv., Ms. S. Lakshmi, Adv., Mrs. Sudha Gupta, AOR, Mr. Sridhar Potaraju, AOR, Mr. Prabhat Kumar, Adv., Ms. Ankita Sharma, Adv., Mr. Udai Khanna, Adv. And Mrs. Anil Katiyar, AOR JUDGMENT A.K.SIKRI, J. Appellant No.1, Andhra Pradesh Industrial Infrastructure Corporation Limited, is a public sector undertaking incorporated under the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered between the appellant-Corporation and the respondents on different dates between 1997 and 1999. During this period, sale deeds were also executed by the appellant-Corporation in favour of the respondents, after receiving full consideration of the plots in question, thereby transferring the ownership rights in favour of the respondents herein. Almost six years after the execution of the sale deed, show-cause notices were issued to the respondents for cancellation of the plots on the ground that the respondents had failed to establish their industrial units on the said plots within the stipulated period and had kept them idle which was detrimental to the industrial development. The respondents submitted their separate replies to these showcause notices wherein, broadly speaking, the position was taken that the appellant-Corporation did not provide basic infrastructure facilities like roads, water, electricity and, therefore, the plots could not be utilised for the purpose of construction of godowns. 4. Interestingly, the aforesaid facilities were provided in the year 2006 only, i.e. after the issuance of show-cause notices and replies thereto by the respondents. In these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Judge who allowed the writ petitions vide common judgment dated July 16, 2010 accepting the plea of the respondents, namely, once the sale deeds were executed, the appellant-Corporation was denuded of any power to cancel the allotments or to make demand of 50% amount of the prevailing market value of the plots. The appellant- Corporation, feeling aggrieved by the said judgment, preferred writ appeals before the Division Bench, which have also been dismissed vide the impugned judgment, thereby affirming the judgment of the learned Single Judge. Not satisfied with this outcome, the present appeals are preferred. 9. In nutshell, reasoning of the High Court is that the allotment was made to the respondents followed by agreements of sale and thereafter sale deeds were also executed by the appellant- Corporation conveying right, title and interest absolutely, to the respondents. When the contract is concluded and regular sale deed is executed between the vendor and vendee in respect of an immovable property, it cannot be said that the dispute arises in the realm of a statutory contract or non-statutory contract. The dispute is not with regard to the contract. It is in effect the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as was applied in Teri Oat Estates (P) Ltd. v. U.T., Chandigarh Ors. (2004) 2 SCC 130 12. Another dimension which has been highlighted by the High Court is that though initially the decision was taken to cancel the allotment, the appellant-Corporation on its own came forward and decided to compound the alleged contravention by a novel method and decided to condone the so-called default on the part of the respondents by demanding 50% of the prevailing market value in lump sum towards the costs of the plots. In the opinion of the High Court, once the sale deed is registered, the seller has no such enforceable right to demand more money and this demand was not backed by any law. We may also point out that the appellant-Corporation had relied upon the judgment of this Court in Indu Kakkar v. Haryana State Industrial Development Corporation Ltd. Anr. (1999) 2 SCC 37. The High Court, however, took the view that the aforesaid judgment had no application to the facts of these cases at hand. 13. Before us, arguments of Mr. Basava Prabhu Patil, learned senior counsel appearing for the appellant-Corporation, remained the same which were advanced before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, when the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the movable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. 10. Condition restraining alienation Where property is transferred subject to a condition or limitation absolutely restraining the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction within the stipulated time, show-cause notice has been issued as to why the plot be not resumed as per clause 7 of the agreement. In this backdrop, the appellant had challenged the enforceability of clause 7 of the agreement taking aid of Section 11 of the Act. This contention was repelled in the following manner: 16. However, the allottee has contended before the trial court that clause 7 of the agreement is unenforceable in view of Section 11 of the TP Act. But that contention was repelled, according to us, rightly because the deed of conveyance had not created any absolute interest in favour of the allottee in respect of the plot conveyed. For a transferee to deal with interest in the property transferred as if there were no such direction regarding the particular manner of enjoyment of the property, the instrument of transfer should evidence that an absolute interest in favour of the transferee has been created. This is clearly discernible from Section 11 of the TP Act. The section rests on a principle that any condition which is repugnant to the interest created is void and when property is transferred absolutely, it must be done with all its legal incidents. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities (Union of India v. G. Ganayutham, (1997) 7 SCC 463) . De Smith (Judicial Review of Administrative Action (1995) para 13.085, 601-605; see also, Wade, Administrative Law (2009) 157-158, 306-308) also states that proportionality involves balancing test and necessity test . The balancing test permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations. 20. Insofar as the argument that the land is not used for putting a factory building but was used for some other purpose is concerned, no such case was pleaded by the appellant- Corporation in the High Court or even in these appeals. This was not the reason for initially cancelling the allotment or demanding payment of 50% of the prevailing market value. Therefore, this oral argument advanced at the time of hearing cannot be accepted without any mater ..... X X X X Extracts X X X X X X X X Extracts X X X X
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