East India Publication Ltd. v. Assam Industrial Development Corporation Ltd. and Ors.
1998-02-17
D.BISWAS, M.RAMAKRISHNA
body1998
DigiLaw.ai
D. Biswas, J.- The writ appellant namely, M/s East India Publication Ltd, for short ‘the company’, filed an application under Article 226 of the Constitution, registered as Civil Rule No.706 of 1995, challenging the judgment and order dated 16.9.97 passed by the learned Single Judge dismissing the aforesaid writ application. 2. The appellant-company applied for a loan of Rs.67,000,00/- (Rs. sixty seven lakhs) under IDBI Re-finance Scheme and Rs.3.50 Lakhs under the State Govt. Equity Participation Scheme for setting up a photo printing press at Silchar. The respondent No. 1, Assam Industrial Development Corporation Ltd, for short ‘Corporation’ vide letter dated 9.3.89 sanctioned a term loan of Rs.49 lakhs. The appellant-company executed necessary documents as per terms of the contract in flavour of the Corporation. The company invested 50% of the promoters contribution of Rs. 18.25 lakhs to meet the pre-conditions of disbursement of loan from the Corporation. The Corporation, in turn, disbursed Rs.5 lakhs to the appellant-company for development of land and also for civil construction. The company also spent further sum of Rs. 11 lakhs for earth filling and construction of boundary walls. The company requested the Corporation to disburse the 2nd instalment against civil construction and machinery worth Rs.7.14 lakhs. At this stage, the Corporation refused to disburse the 2nd instalment on the ground that there was no approach road to the project site and that the machine for which orders have been placed in favour of Bob Weber Inc, USA were second hand machines. The Corporation not only dishonoured the letter of credit for the above sum of Rs. 7.14 lakhs, but also terminated the agreement vide letter dated 1.12.90. 3. The company then approached this High Court by filing an application ; registered as Civil Rule No.2943 of 1991 with a prayer for quashing the decision of the Board of Directors as mentioned above. The learned Single Judge by order and judgment dated 24.2.94 dismissed the aforesaid civil rule. Being aggrieved, the company preferred Writ Appeal No. 140 of 1994. The aforesaid writ appeal was dismissed by Division Bench of this Court on 15.7.94 with the following direction: "We are of the opinion that it is fit to remand the entire matter to respondent Corporation, namely, Assam Industrial Development Corporation Ltd. Accordingly, we direct that the Corporation shall reconsider the entire matter after perusing the documents to be supplied by the appellant-company.
For that purpose, the appellant company may furnish all necessary documents and the respondent-Corporation may ask the appellant-company to explain the position regarding the machineries imported and at present lying at the Calcutta Airport and also the approach road to the site of the industry. This shall be done within a period of one month from today. The appellant-company after obtaining a certified copy of this order shall present it to the Managing Director of the respondent-Corporation and the Managing Director shall fix a date within which the appellant shall file necessary documents and thereafter if the respondent-Corporation is not satisfied with the documents filed and also regarding any other points, the Corporation shall fix a date for presence of the representatives of the appellant-company to explain the position. In case the respondent-Corporation withdrawn the impugned order and agrees to help the petitioner-company with financial assistance as per earlier agreement, the problem raised by Mr. Goswami regarding re-finance from IDBI may not be a problem as the sanctioning of the loan may be re-scheduled to enable assistance from IDBI. Final order shall be passed by the Corporation within one month as stated above." 4. After remand, the matter was taken up for consideration by the Board of Directors. But the respondent-Corporation reiterated the earlier decision dated 1.12.1990 and intimated the appellant-company their unwillingness to revive the loan agreement vide letter dated 28.9.94, 5. This order dated 28.9.94 has been challenged by the writ appellant in the instant writ petition i.e. Civil Rule No.706 of 1995. The writ application having been dismissed, the writ appellant has preferred this appeal on various grounds incorporated in the Memorandum of Appeal. 6. We have heard learned counsel for the appellant as well as the respondents and also perused the grounds taken in appeal to assail the judgment of the learned Single Judge. 7. In this appeal, on the context referred to above, this Court is to examine whether the decision making process undertaken by the Corporation as per observation of the Division Bench has been in keeping with the principles of audi alteram partem and is consistent with the norms of all fairness. 8. Mr.
7. In this appeal, on the context referred to above, this Court is to examine whether the decision making process undertaken by the Corporation as per observation of the Division Bench has been in keeping with the principles of audi alteram partem and is consistent with the norms of all fairness. 8. Mr. M. Singh, the learned counsel for the appellant, argued that the Corporation committed serious error in taking a decision about the non-existence of the approach road simply on the basis of the report of the Additional Deputy Commissioner and thereby also ignoring the fact that the mutation could not be effected by the appellant company as mutation works were kept in abeyance because of the ongoing Revenue Settlement Operation in Silchar Revenue Town. The learned Single Judge has considered this matter in details and found no reason to interfere with the decision of the Corporation arrived at after consideration of spot verification report submitted by the Additional Deputy Commissioner. Mr. PC Deka, the learned Advocate for the Corporation, produced original record relating to spot verification before this Court and pointed out that the Additional Deputy Commissioner, Cachar had visited the site and, on physical verification, found no approach road. According to him, the land revenue records further show that the concerned land is yet to be mutated in the name of the Managing Director of the appellant-company, and the map available in the land records shows that there is no provision for any approach road. The report further shows that the Managing Director of the company is in debt to other financial institutions and Bakijai case and a title suit are pending against him. 9. We have perused the report and other documents submitted by Additional Deputy Commissioner about non-existence of the approach road. Mr. Singh, the learned counsel for the company, controverted the credibility of this report on the basis of letter, Annexure 9B (in the writ petition) written by the concerned Settlement Officer on 3rd September, 1994 to the Managing Director of the company wherein it is stated that the area is currently under 3rd Revenue Settlement Operation, and road, drains etc will be plotted in the cedastral map in due course. It is further mentioned in this letter that a half constructed approach road has been shown in orange colour in the trace map and this road, if constructed, will connect the project site.
It is further mentioned in this letter that a half constructed approach road has been shown in orange colour in the trace map and this road, if constructed, will connect the project site. The contents of this letter shows that till 1st September, 1994, the project site is not connected by any approach road and this is contrary to the claim of the appellant-company. Even as on today, the company could not produce anything to show that the approach road to the project site has been completed. The contents of this letter, therefore, cannot be said to be in conflict with the report of Additional Deputy Commissioner, and it makes no room for any concession to the appellant-company. 10. Regarding status of machines proposed to be imported from USA, it would appear that the State Bank of India vide letter dated llthJune, 1990 informed the Corporation that the photo-composing machine dispatched by M/s Bob Weber Inc, USA is a second hand machine and it does not conform to the description! of the proforma invoice of their Indian agent i:e. M/s New Tech Machinery Corporation. Calcutta. The said statement of the State Bank of India is based on documents made available by M/s Bob Weber Inc. USA. 11. We consider it imperative to mention here that there are two reports available on record submitted by Chartered Engineers namely, VT Independent Service, USA. In its first report, it has been mentioned that the machine sought to be imported is a conditioned machine. In its second report dated 26th June, 1990, it has been mentioned that the machine was purchased by the present seller namely, Bob Webber Inc. USA in 1989. Apart from these documents, the appellant-company also vide letter dated 30.6.90 informed the State Bank of India that it would not be possible on their part to accept the second hand machine. After considering all these materials on record and after hearing the Managing Director in its meeting dated 8.9.94, the Corporation decided not to revive the loan agreement. 12. Mr. M. Singh, the learned counsel for the appellant emphasized that the company changed its position by investing a good money in pursuance of the assurance given by the Corporation and, therefore, the Corporation cannot now resail from its earlier promise. To reinforce this contention, Mr.
12. Mr. M. Singh, the learned counsel for the appellant emphasized that the company changed its position by investing a good money in pursuance of the assurance given by the Corporation and, therefore, the Corporation cannot now resail from its earlier promise. To reinforce this contention, Mr. Singh also referred to the decisions of the Apex Court reported in (1983) 3 SCC 379 and (1994) 6 SCC 651 . In Gujarat State Financial Corporation vs. M/s Lotus Hotels Pvt. Ltd, reported in (1983) 3 SCC 379 , the Supreme Court laid down the law that the instrumentality of the State which would be ‘other authority’ under Article 12 cannot commit breach of a solemn undertaking to the prejudice of the other party which acted on that undertaking or promise and put itself in a disadvantageous position. It has been further held that in such a situation, it cannot be said that the only remedy for the aggrieved party would be suing for damages for breach and it could not compel the Corporation for specific performance of the contract under Article 226. In Tata Cellular vs. Union of India, reported in (1994) 6 SCC 651 , the Supreme Court held that the principles of judicial review would apply to the exercise of contractual powers by Govt. bodies in order to prevent arbitrariness or favouritism. However, there are inherent limitations in exercise of that power of judicial review. In para 71 of the aforesaid judgment, the Supreme Court further held as follows : "71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review." 13. Here, we may also refer to a decision of the Supreme Court reported in AIR 1987 SC 593 (RS Das vs. Union of India & others) wherein the Supreme Court quoted its earlier judgment reported in AIR 1977 SC 965 (Chairman, Board of Mining Examination vs. Ramjee). It reads as follows : "Natural justice is no unruly horse, no lurking land mine nor a judicial cure-all.
It reads as follows : "Natural justice is no unruly horse, no lurking land mine nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential procedural propriety being conditioned by the facts and circumstances of such situation, no breach of natural justice can be complained of." 14. The law is therefore well settled that in the realm of contract, the I interference by a writ Court will not be proper unless the element of unfairness or arbitrariness is palpable. The requirement of fairness implies that an authority must not act arbitrarily or capriciously and arrive at a perverse conclusion. The powers under Article 226 is merely supervisory and the Court sits in judgment only of the correctness of the decision making process and not of the correctness of the impugned decision. That apart, there is also no difference of opinion mat the principle of promissory estoppel would certainly apply to stop a Corporation from backing out of its obligation arising out of a promise, but the conduct of the appellant-company in the instant case as discussed before is devoid of credibility for which reason alone the respondent-Corporation cannot be compelled to revive the loan agreement Statutory bodies like the respondent-Corporation are the guardians of the public money in their respective fields and the Court should be circumspect to interfere with the decision of such bodies in respect of public finance unless such decision appears to be arbitrary or capricious. After the due consideration of all these aspects, we are of the opinion that there are no sufficient grounds for review of the impugned decision of the Corporation. The learned Single Judge while delivering the judgment under appeal has dealt with all these matters in details and we, after careful consideration, find no reason to differ with the findings of the learned Single judge. The appeal is devoid of merit and cannot be entertained. The appeal is rejected.