Rajasthan High Court - Jodhpur
M/S.Climpex vs Kuldeep Ranka & Ors on 8 December, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
..
:: O R D E R ::
(1) M/s Climpex
Vs.
The Rajasthan State Industrial Development &
Investment Corporation Limited & Anr.
S.B.CIVIL WRIT PETITION NO.3582/2000
(2) M/s Climpex Vs. Kuldeep Ranka & Ors.
S.B.CIVIL WRIT CONTEMPT PETITION NO.38/2008
Date of Order :: 8th December 2009
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. N.S. Acharya ]
Mr. N.R. Budania ], for the petitioner.
Mr. N.M. Lodha ]
Mr. Ravi Bhansali ]
Mr. M.S. Singhvi ]
Mr. Manish Patel ], for the respondents.
Mr. B.D.Purohit ]
.....
BY THE COURT
These two matters, S.B. Civil Writ Petition No.3582/2000 and S.B. Civil Contempt Petition No.38/2008, being inter-connected and 2 co-related with the dispute about allotment of an industrial plot bearing number E-185 at Mandore Industrial Area, Jodhpur, have been heard at length together; and are taken up for disposal by this common order.
The relevant facts and background aspects are as follows: On 12.12.1997, the petitioner M/s Climpex, through its proprietor Smt.Lalita Jain, made an application to the respondent Corporation, the Rajasthan State Industrial Development and Investment Corporation Ltd. ('the RIICO'), for allotment of 6000 square metres of land as an industrial plot at Mandore Industrial Area, Jodhpur while remitting an amount of Rs.2,25,000/-with the application. A copy of the application with its enclosures has been placed on record as Annexure-1 and it appears that though the applicant suggested herself to be falling in the category of a woman entrepreneur but did not attach any document in that regard with the application.
The application so made by the petitioner was considered and accepted by the respondent RIICO in the fashion that the plot in question bearing number E-185 admeasuring 2500 square metres was allotted to her for setting up an industry for handicraft items, on the terms and conditions as spelt out in the allotment letter dated 19.01.1998 (Annex.2) whereby the petitioner was required, inter alia, to deposit the balance 75% of development charges calculated at the rate of Rs.150/- per sq.m. amounting to Rs.1,53,750/- within 90 days of the date of issue of the letter. It was also stated in 3 paragraph 14 of such terms and conditions that in case of the petitioner's failure to deposit the amount so required or to commence construction/production within the prescribed time, or in case of breach of any of the conditions, the allotment would be treated as cancelled automatically. It was also stated that the plot was being allotted to the petitioner as per choice on as is where is basis; and that the site had been measured in the presence of the petitioner.
In response to the aforesaid allotment letter dated 19.01.1998 (Annex.2), the petitioner stated, under the communication dated 20.04.1998 (Annex.3), that being a lady entrepreneur, the said plot be allotted to her on the concessional rate; and, while enclosing the copies of the certificates towards Import-Export code number, RBI code number and so also the copies of the balance-sheets for the preceding 3 years, the petitioner remitted an amount of Rs.1,16,250/-, allegedly the amount payable after availing 10% concession as admissible to a lady entrepreneur. Upon the communication so sent by the petitioner, the respondent RIICO, under the communication dated 06.05.1998 (Annex.4), asked her to submit the documents towards experience as active working partner/manager or training in entrepreneurial development electronic data processing or technical professional qualifications so as to consider her eligibility for such a concession. The petitioner, in turn, replied on 14.05.1998 (Annex.5) that the audited balance- sheets with the related documents had already been supplied. It 4 appears that the petitioner received yet another communication dated 04.06.1998 from the RIICO that was responded by her with the letter dated 22.06.1998 (Annex.6) to the effect that the documents and the cheque had been delivered in the office of the respondent on 20.04.1998.
The respondent RIICO, however, by the communication dated 04.07.1998 (Annex.7) stated that the documents as required by the letter dated 06.05.1998 had not been filed; and, while returning the cheque as sent by the petitioner in the sum of Rs.1,16,250/-, warned that the entire amount as per the allotment letter dated 19.01.1998 be deposited within a month and else, the allotment would stand cancelled and the plot would be allotted to someone else.
According to the petitioner, thereafter, the communication dated 03.07.1999 (Annex.8) was received from the respondent RIICO, this time conveying that her prayer for grant of 10% concession in the development charges had been accepted by the Corporation but then, she was directed to deposit the balance development charges alongwith interest within 30 days. The contents of the said communication dated 03.07.1999 are reproduced hereunder for ready reference:-
"उपर क व षय न र लख ह क आप भ.स.ई-185 व स
शल र शश म# महहल उदम& छट 10% न*रम द र
स & र ज & ह, अ : आप ब य व श शल र शश
न*म* प र स मय बय ज जम इस पत ज र5 ह * 30
ह6 स म# न*श8 9र पर जम र :-
5
1- व श शल 1,16,250.00
2- बय ज ह6* 31.7.99 26,887.00
-----------------
यर 1,43,137.00
-----------------
उक र शश स थ आरथ क रय र शश मय बय ज
भ& जम र ।"
Upon receiving the aforesaid communication dated
03.07.1999, the petitioner felt aggrieved by the demand of amount of Rs.26,887/- towards interest and represented against such demand under the representation dated 07.07.1999 (Annex.9). The petitioner submitted that while she was grateful for the RIICO accepting her prayer for grant of concession, the demand of interest was not justified because the cheque towards payment of requisite development charges had already been given by her and she was not at fault if the office did not accept the same. It appears that the respondent RIICO was not convinced with such representation and by the letter dated 08.07.1999 asked the petitioner to deposit the amount as per the requirements of the communication dated 03.07.1999. The RIICO repeated such demand under its communication dated 26.10.1999 and asked the petitioner to deposit the amount within a month and else, the allotment would be cancelled.
The respondent RIICO thereafter proceeded to issue the impugned communication dated 22.12.1999 (Annex.10) cancelling 6 the allotment made in favour of the petitioner with forfeiture of the amount on the ground that the petitioner failed to deposit the remaining amount towards the development charges. The impugned communication dated 22.12.1999 reads as under:-
"उपर क व षय न र आप धय * इस य लय पत
5628 ह6* 26.10.99 ए म ? 3228 ह6* 8.7.99 ओर
आ A वष र लख ह क आप द र ब य व श शल
र शश जम *ह5 र * पर भखणC सखय ई-185 औ. कत
आ ट* न*रस क य ज ह, ए म ? न*यम *स र र शश जब
ज & ह ।"
While stating grievance against such communication dated 22.12.1999, the petitioner filed this writ petition on 20.09.2000 with the following prayers:-
''i. the letter/order dated 22.12.1999 (An.10) may kindly be quashed and set aside and respondents may kindly be directed re-allot Plot No. E-185 in Industrial Area, Mandore, Jodhpur on the concessional rate and in the alternative to allot any other alternative plot in the said area measuring 6000 Sq. mt. as applied for by the petitioner or of atleast of the same measurement as was allotted to the petitioner vide letter An.2;
ii. without prejudice to the relief prayer for in clause
(i) in the alternative it is prayed that respondents be directed to refund the entire amount of Rs.2,25,000/-
alongwith the interest thereon from the date of its deposit with the respondents till the date of actual payment;
iii. any other appropriate relief(s) which this Hon'ble High Court deems just and proper in the facts and circumstances of the case may be passed in favour of the petitioner;
iv. writ petition of the petitioner may kindly be allowed with costs.'' 7 In this petition, while asserting her right on the claim of concessional rates, the petitioner has submitted essentially the grounds that the RIICO earlier attempted to take the excuse of unavailability of the requisite documents whereas such documents were, in fact, available with them as forwarded by the petitioner; and it had been on the basis of such documents only that the respondent RIICO accepted, albeit belatedly, the prayer of the petitioner for charge of concessional rates. According to the petitioner, she had already deposited the requisite amount with the application and then, remitted further requisite amount with the communication dated 20.04.1998; and delay, whatever, that occurred in the matter had been on account of the faults and mistakes referable to the respondent RIICO alone. It is submitted that the petitioner could not have been asked to make any payment towards interest more particularly when the amount as payable had indeed been remitted on 20.04.1998. It is further submitted that the stand of the respondent in cancelling the allotment of land and deducting huge amount is wholly illegal, arbitrary and contrary to law and violates the constitutional rights of the petitioner.
In relation to the amount remitted by the RIICO with the communication dated 22.12.1999, the petitioner has made the averments that are reproduced hereunder for being relevant in relation to one limb of the submissions made in this matter: 8
''11. That however, the request made by the petitioner vide her representation An.9 was not accepted and respondent No.2 vide its letter dated 22.12.1999 informed the petitioner that since it has failed to deposit the remaining development charges therefore, allotment of plot No.E-185 made in its favour is cancelled and deducted Rs.30,000/- against the cheque of Rs.2,25,000/- deposited by the petitioner as 25% application money and made the payment of remaining amount. A photostat copy of the letter dated 22.12.1999 is submitted herewith and marked as ANNEXURE/10.'' This writ petition, filed on 20.9.2000, was considered by this Court on 26.09.2009 when show cause notices were ordered to be issued. The petition, thereafter, came up for consideration on 28.11.2001 when this Court, after hearing the counsel for the petitioner and the counsel for the respondent RIICO, passed the following order:-
''Heard.
Admit. Notice need not be issued as parties are represented. In the meanwhile, the plot in question will not be allotted to any other person.'' Thereafter, on 26.03.2002, the aforesaid stay order was confirmed until final decision of the writ petition.
On behalf of the respondent RIICO, the reply to the petition was filed on 14.11.2002. While the essential facts about the petitioner having made the application and having made the payment of Rs.2,25,000/- have not been disputed, it has been emphasised that the certificate as required for considering the case 9 as that of woman entrepreneur was not attached with the application. The facts about allotment of the land to the petitioner by the allotment order dated 19.01.1998 and the petitioner having been asked to pay the balance 75% of the development charges calculated at the rate of Rs.150/- per sq.m. amounting to Rs.1,53,750/- have also not been disputed. However, it has been averred that the plot was allotted as per the choice of the petitioner on as is where is basis. The respondents have further averred that the petitioner's letter dated 20.04.1998 was received on 22.04.1998 alongwith a cheque for Rs.1,16,250/- and, according to the respondents, neither the said cheque was in full payment of the amount required to be paid by the petitioner nor was sent within the requisite period and thus, the condition of 18% per annum interest was attracted. While not denying the fact of having asked the petitioner to submit the necessary certificate for the claim of 10% rebate, the respondents submit that having not enclosed the requisite certificate for the purpose of entitlement to rebate, the amount sent by the petitioner while deducting 10% at her own discretion was neither proper nor insufficient.
So far the communication dated 04.07.1998 is concerned, the respondents submit that the petitioner was warned thereby to deposit the remaining amount within one month failing which the allotment was to be cancelled. According to the respondents, the said communication was sent in view of the fact that the petitioner, 10 despite repeated requests, failed to produce the necessary document regarding the claim of rebate. It is also pointed out that, admittedly, under the communication dated 04.07.1998, the cheque for Rs.1,16,250/- as delivered by the petitioner was returned.
In relation to the communication dated 03.07.1999, while admitting the facts that thereby the request for concession to the extent of 10% in development charges was accepted and the petitioner was directed to deposit development charges alongwith interest to the tune of Rs.1,43,137/-, the respondents submit that the petitioner had been asked to deposit the amount as per the allotment letter dated 19.01.1998 but she failed to deposit the required amount and instead deposited only a sum of Rs.1,16,250/- without any justification; and, while reiterating the fact that the petitioner did not submit the requisite certificate for her claim of concession as a woman entreprenure, the respondents have, however, stated that she was allowed 10% rebate in the rate of development charges under the communication dated 03.07.1999 after viewing her case sympathetically and then, she was asked to deposit development charges alongwith interest because balance 75% were not deposited within 90 days. To put in a nutshell, the stand of the respondents on the point in dispute could be noticed in the following averments in paragraph-10 of the reply:- 11
''However, by taking a lenient view, the concession was allowed to the petitioner but nevertheless the petitioner is liable to make payment of interest for the delayed payment made by her.'' So far the impugned communication dated 22.12.1999 is concerned, the averments as taken by the petitioner in paragraph- 11 of the writ petition have already been reproduced above and apposite it shall be to notice the averments in reply thereof by the respondent RIICO that read as under:-
''That averments contained in para 11 of the writ petition are not disputed so far as it is in conformity with the communication dt.22.12.1999 is concerned whereby the petitioner was informed that since they failed to deposit remaining development charges, the allotment of plot no.E-185 in the Industrial Area is cancelled. After deducting the amount as per rules, remaining amount was sent to the petitioner. In fact, despite allowing rebate to the petitioner in the rates of development charges, they did not deposit the amount alongwith interest and consequently the allotment of plot was cancelled and after issuing order of cancellation, amount to the tune of Rs.30,540/- was deducted.'' In relation to the grounds as taken by the petitioner, the respondents have reiterated the fact that the petitioner did not supply the necessary documents for the purpose of claim of rebate and it is maintained that there has not been any arbitrariness or unfairness on the part of the respondents. It is also submitted that the petitioner has filed this writ petition challenging the cancellation after nearly one year and the petition, according to the respondents, deserve to be dismissed on this count too.12
With the passing of the orders by this Court of admission and stay; and with filing of reply by the respondents, the writ petition remained pending for hearing. However, certain significant events and developments took place before the matter came up for hearing; and such events and developments deserve to be noticed at this juncture.
It is borne out from the material placed on record that despite the stay order having been passed by this Court in this writ petition prohibiting alienation of the plot in question, the respondent RIICO proceeded to advertise this very plot bearing number E-185 for auction sale under the advertisement dated 09.12.2003 alongwith several other plots; and such an auction in relation to the plot in question was allegedly held on 23.12.2003. It is the case of the respondents that the private respondent Shri Ajay Jain (joined as respondent No.3 in the writ petition) participated in such auction and was declared a successful bidder; and who proceeded to deposit requisite amount on different dates.
Before coming to the aspects relating to the respondent No.3 and his stand in the matter, relevant it is to notice that the petitioner moved a contempt petition on 18.02.2008 to this Court while arraying the Managing Director and the Regional Manager of RIICO and so also the auction purchaser as the contemners; and, while pointing out the subject matter of the writ petition and the order passed by this Court, submitted that she came to know, only in 13 second week of February 2008, the fact that RIICO had alienated the plot in question to a third person and such third person was likely to commence construction thereat. According to the petitioner, she made enquiries from the authorities and even submitted application under the Right to Information Act and also got served a notice of contempt proceedings through the lawyer on 13.02.2008.
The petitioner has averred in the contempt petition that despite passing of the stay order on 28.11.2001 and its confirmation on 26.06.2002 specifically in the presence of their counsel, the RIICO had acted in complete defiance and has shown scant regard to the orders and though they were given the opportunity to purge the contempt by cancelling the allotment but failed to avail of the opportunity. The petitioner has submitted that only in response to the application filed on 14.02.2008 that a copy of allotment order dated 30.12.2003 was made available wherefrom it appeared that the non-applicant Ajay Jain had been allotted the plot in question pursuant to the auction conducted on 23.12.2003. While assailing the said auction proceedings being in total disregard and disobedience of the orders of this Court, the petitioner submits that a serious view of the matter is required to be taken and the respondents deserve to be punished severely.
The petition for contempt so filed by the petitioner bearing number 38/2008 was considered by this Court on 22.02.2008 and 14 notices were ordered to be issued to the respondents to show cause as to why the proceedings be not initiated against them.
It appears that with the petitioner having moved this Court in contempt and notice having been issued, the respondent RIICO realised the wrong committed in auctioning the plot despite the stay order of the Court and proceeded to issue an order dated 15.03.2008 cancelling the allotment of the plot in question as made in favour of the said private respondent Ajay Jain. The private respondent, with service of such an order of cancellation, approached this Court by way of an application seeking impleadment as party respondent in the writ petition. The application so moved was considered by this Court and was allowed on 02.05.2008 on the considerations, inter alia, that cancellation of auction has affected the rights of the applicant and he would be further effected by the final outcome of the writ petition. This Court said,-
''Considering the arguments made by the counsel for the parties, I find that due to interim order passed by this Court, the auction was cancelled. The applicants had participated in the auction, thus cancellation of the auction has affected the rights of the applicants and would further be effected by the final outcome of the writ petition in view of the development made during the pendency of the writ petition.
Looking to the aforesaid discussion, in my opinion, the application moved by the applicants deserves to be allowed. The applicants named in the application are allowed to be impleaded as respondents. Amended cause title be filed by the petitioner within a week.'' 15 With the above order, the auction purchaser came to be joined as respondent No.3 in the writ petition. It may, in the passing, be observed that on 14.10.2008, a request for interim order was made on behalf of the added respondent No.3 with the submissions that some third party was trying to interfere with the land in dispute and it was clarified by this Court that pendency of the writ petition or any previous order passed therein would not be of any impediment for the respondent No.3 to take recourse to the appropriate remedies in accordance with law against such alleged interference. The matter was, thereafter, considered on 22.01.2009 when the prayer as made for vacating the interim order was declined by this Court; however, the petition was ordered to be listed for hearing in priority.
It would be appropriate at this stage to point out that so far the contempt petition is concerned, the non-applicant No.1, the Managing Director, RIICO Ltd. has filed a reply on 11.04.2008 essentially with the submissions that the concerned matter was not placed before him until receipt of the notice dated 13.02.2008 as sent by the lawyer of the petitioner and that after receiving such notice and collecting all the facts, the communication was issued to the Jodhpur Office and the order dated 12.03.2008 was also issued for cancellation of allotment of plot as made in favour of the private respondent and accordingly, the order was issued cancelling such 16 allotment on 15.03.2008 while refunding the amount deposited by the private respondent alongwith interest through cheque bearing number 094622 dated 15.03.2008. It has also been stated that the answering non-applicant had passed an order for detailed enquiry against the concerned delinquent. It has been the submission of the non-applicant No.1 that he never made any attempt to disobey or disrespect the orders of the Court and has not committed any disobedience much less willful disobedience.
The non-applicant No.2, the then Regional Manager, RIICO Ltd. Jodhpur, has filed a separate reply in the contempt petition. It has been submitted that after service of notices of the writ petition, the panel lawyer was engaged to act and plead on behalf of the RIICO Ltd. It has been averred that as per the regular practice, review of the vacant plots and other affairs was made and the concerned Assistant Regional Manager in his note dated 20.10.2003 informed that the plot in question was lying vacant and as such, the answering non-applicant passed an order to the effect that the said plot No.E-185 be also included in the list of vacant plots and be put to auction alongwith other plots. Thereafter, according to the reply averments, the auction notice dated 08.12.2003 was published in the newspaper fixing the date of auction including the plot in question on 23.12.2003; and the highest bid as given by the respondent No.4 was accepted and then, the lease deed was executed in his favour. Further, according to the reply averments, upon receipt of the notice 17 dated 14.02.2008 the answering non-applicant came to know that an interim order was passed by this Court on 28.11.2001 in the writ petition filed by the petitioner and the said interim order was confirmed on 26.03.2002.
It has been submitted that prior to such notice dated 14.02.2008, the non-applicant No.2 was not aware about the stay granted by this Court, and according to the submissions, the enquiries were made from the concerned lawyer about the proceedings and status of the case and then, the non-applicant was informed of the said order passed by this Court on 28.11.2001, which has been confirmed on 26.03.2002. According to the non- applicant, the higher authorities were immediately apprised of the facts and request was made for cancellation of allotment as made in favour of the private respondent and thereupon, the directions were immediately issued for cancellation and hence, the cancellation order was issued on 15.03.2008. The answering non-applicant would submit that the private respondent had paid an amount of Rs.5,33,783/- towards allotment and the deposited amount with interest to the tune of Rs.6,62,758/- have been refunded to him. On the question of fault, submission has been made in the following terms:-
''11. That it is also noteworthy that on account of communication gap, the Department was not knowing in the year 2003 that there was/is stay order passed by Hon'ble Court against further allotment of the plot in question. In such circumstances, there was a bonafide 18 error and the same has been rectified, hence it is clear that there was neither any willful disobedience nor any willful disrespect towards the order of this Hon'ble Court.'' Another reply has been filed in the contempt petition on behalf of the non-applicant No.3, the Senior Regional Manager, RIICO Ltd. on 11.04.2008 stating, inter alia, that no application was made by the petitioner seeking copy of the allotment order as made in favour of the private respondent and that the said non-applicant had been working as Senior Regional Manager at Jodhpur since 06.08.2007. It has further been suggested in this reply that the petitioner was in know of the allotment but remained silent; and only with a view to avoid the objection of limitation, the petitioner has made averments as taken in paragraph-12 of the petition. In any case, the said answering non-applicant submits, there are no allegations of willful disobedience as against him.
The the auction purchaser, joined as the non-applicant No.4 in the contempt petition, has filed a separate reply essentially with the submissions that he was not at all aware of the stay order passed by the Court and he participated in the auction conducted by the respondents, the authorities of RIICO, on 23.12.2003 alongwith other participants and his bid was accepted and the allotment letter was issued in his favour. The auction purchaser has also pointed out in the reply about the RIICO having issued the cancellation order 19 dated 15.03.2008 with the refund cheque and submitted that he would be initiating separate proceedings in that regard.
As noticed above, the auction purchaser did move an application for impleadment in the writ petition that was allowed by the order dated 02.05.2008 and he came to be joined as respondent No.3 in the writ petition. The private respondent, thereafter, proceeded to submit what has been referred as ''Reply to the writ petition & counter writ petition on behalf of the respondent No.3'. With reference to the facts already noticed above about the plot in question having put to auction by advertisement in newspaper, the auction proceedings as held on 23.12.2003, and the allotment letter having been issued in his favour on 30.12.2003, the private respondent has averred that possession of the plot in question was handed over to him, that the requisite amount was deposited by him, and that a lease deed was executed in his favour that was duly registered. It has also been averred that the plot in question was situated at a low-lying area and, therefore, the answering respondent had to invest huge amount of money in levelling the same and in particular a sum of Rs.10 lacs had been spent by him in the process. According to these submissions, the added respondent was about to commence the construction on the plot in question when the allotment came to be cancelled under the communication dated 15.03.2008. While reiterating the fact that he was not aware of the writ petition, the private respondent has averred that the 20 communication dated 15.03.2008 came to be issued by the RIICO particularly in view of the filing of the contempt petition.
It has been averred by the private respondent that the husband of the proprietor of the petitioner firm is having an industrial unit at the Mandore Industrial Area situated adjoining the auction site and that he was present at the site on 23.12.2003 i.e., during the auction proceedings. According to the respondent, neither at the time of publication of the advertisement nor at the time of conduct of the auction did the husband of the proprietor of the petitioner point out the factum of the interim order passed by this Court nor any objection was raised by him; and though the auction took place in the year 2003, the contempt petition came to be filed only in the year 2008. While asserting his own rights, the private respondent has averred that he has been a bona fide purchaser of the plot in question and was unaware of the order passed by this Court; that his auction bid was accepted by the RIICO and allotment order for the plot in question was issued in his favour and possession of the plot was also handed over to him and valuable rights have accrued in his favour that cannot be taken away. It is submitted that had he been aware of the interim order by this Court, he would not have participated in the auction for the plot in question.
According to the private respondent, only on account of the fault on the part of the petitioner and the RIICO, he was made to participate in the auction where, for his bid being the highest, he 21 parted with huge amount for the plot in question and thereafter, made huge investment in levelling the plot; and not only the writ petition deserves to be dismissed but the cancellation order dated
15.03.2008 also deserves to be quashed in these proceedings.
The private respondent has also averred that the writ petition suffers from delay and laches inasmuch as the impugned order of cancellation of allotment was passed on 22.12.1999 but the petitioner filed this writ petition after about 10-11 months from such cancellation without any satisfactory explanation for such an inordinate delay. The answering respondent has also attempted to join issue on the claim of rebate as made by the petitioner and has even questioned the assertion of the petitioner of running an industrial unit. It has been averred that the petitioner did not enclose any certificate for the purpose of claim of concession as a woman entrepreneur though such certificate was requisite in view of the requirements of the RIICO's Disposal of Land Rules of 1979. It has also been contended that such concessional allotment could have been for 2000 sq.m. size plot and, therefore, the petitioner was not entitled for concession as woman entrepreneur in relation to the plot in question. While disputing the claim of the petitioner for being allowed the concessional rate, the answering respondent has averred that the so-called audited balance-sheets as submitted by the petitioner did not fulfill the requirements of the certificate for the purpose of such concession and it is submitted that such balance- 22 sheets could not be treated to be of any certification towards experience as active working partner/manager or having training in the entrepreneurial development electronic data processing or having technical qualification. According to the respondent, the balance-sheets, rather, show only trading activity having been conducted in the name of the petitioner.
The private respondent has further averred that the officers of the RIICO committed serious error in accepting the request of the petitioner for grant of concession in the amount of development charges and the communication dated 03.07.1999 was contrary to the Rules and was wholly without jurisdiction. This apart, the answering respondent points out, even under the said communication, the petitioner was granted one month's time to deposit the development charges and for the reasons best known to RIICO, the order of cancellation was not passed after the expiry of this period of one month. According to the private respondent, even at the initial stage, the amount was tendered by the petitioner after the expiry of the period of 90 days as prescribed by the Rules of 1979 and in any case, the claim of the petitioner for waiver of interest was ill-founded and baseless. It has also been submitted that even if the claim of the petitioner regarding concession was to be admitted, then too, the amount tendered by the petitioner did not constitute 90% of the amount of development charges as communicated to her by the letter dated 19.01.1998. Thus, 23 according to the respondent, taking the matter from any angle, the allotment of the petitioner ought to have been cancelled but the authorities of the RIICO proceeded to extend rather undue indulgence to the petitioner. With the submissions aforesaid, the grounds as taken in the writ petition have been put to contention.
Apart from the submissions aforesaid, the private the respondent has also come out with the averments under the caption ''Counter Writ Petition'' with the submissions that the communication dated 03.07.1999 granting benefit of rebate in the amount of development charges to the petitioner was wholly illegal and beyond the powers of the respondents for the reasons, as noticed supra. It has further been averred that the plot in question was auctioned in the year 2003 and the answering respondent has been a bona fide purchaser who made a deposit of the huge amount of Rs.5,35,095/- and then, had to invest an amount of Rs.10 lacs for the purpose of levelling the plot. It is submitted that the petitioner has not explained as to why she got up from slumber after about four years of the allotment of plot to the answering respondent and on these submissions, it is contended that the order of cancellation of plot dated 15.03.2008 as made by the RIICO is liable to be quashed.
From the foregoing assimilation of the basic facts, the relevant background aspects, and the stand of the contesting parties, the following broader issues appear requiring determination in these matters:-
24
1. (a)As to whether the writ petitioner is guilty of delay and laches in filing the writ petition and exercise of writ jurisdiction in her favour deserves to be declined on this count itself?
(b) As to whether the writ petitioner is not entitled to any relief for having received the amount under the refund cheque sent by RIICO with the cancellation order?
2. If the case of the writ petitioner is considered on merits, as to whether the respondent RIICO has acted illegally and unfairly in cancelling the allotment of the plot in question and/or in forfeiting a part of the amount deposited by the petitioner?
3. If the answers to the questions involved in points Nos. 1(a) and 1
(b) are in the negative and those involved in point No. 2 are in the affirmative, what relief the petitioner is entitled to?
4. As regards the contempt petition, as to whether the non- applicants Nos. 1 to 3, the persons holding different managerial positions in the RIICO have, or any of them has, committed contempt particularly for advertising the plot in question for auction sale and transferring the same to the non-applicant No. 4 despite specific prohibitory order of this Court that was passed and confirmed in the presence of the counsel for RIICO?
25
5. As to whether the private respondent has been a bonafide purchaser for value who has invested money over the plot in question and the allotment made in his favour has wrongly been cancelled by the respondent RIICO by the communication dated 15.03.2008; and as to whether the private respondent is entitled to question the said communication in these proceedings by way of the so-called 'Counter Writ Petition'?
6. If the answers to the questions involved in point No. 5 are in the affirmative, as to what relief the private respondent is entitled to? Point No.1 (a):
It has been argued on behalf of the respondents that the petitioner is guilty of delay and laches and for this count alone, deserves to be declined any relief in the writ jurisdiction. This Court is unable to agree. The facts of the case, as noticed, make it clear that in this matter relating to the allotment of industrial plot to the petitioner, her application was indeed accepted and she had deposited an amount of Rs.2,25,000/- with the application itself. After receipt of the allotment letter dated 19.01.1998 (Annex.2), the only question raised by the petitioner was of charging concessional rate for herself being a lady entrepreneur. Though the RIICO 26 proceeded to reject the petitioner's request in the first instance but then, and ultimately, accepted this request under the communication dated 03.07.1999 (Annex.8). Thereafter, the only dispute remaining was about the claim of interest that was resisted by the petitioner on the stand that the cheque towards payment had already been sent by her earlier and she was not at fault. The respondent RIICO proceeded to issue the impugned communication on 22.12.1999 purportedly cancelling the allotment made in favour of the petitioner with forfeiture of a part of the deposited amount. The petitioner has, of course, taken some time in approaching this Court and filed this writ petition only on 20.09.2000 but then, until filing of the writ petition by the petitioner, nothing else had happened in relation to the plot in question and there had not been any other development between the period of the impugned communication and filing of the writ petition. Nothing happened qua the plot in question even until admission of this writ petition. The present petition cannot be said to be suffering from any such laches and delay that the writ jurisdiction of this Court be declined to the petitioner on this count alone.
The learned counsel for the private respondent has referred to the decisions in State of Maharashtra Vs. Digambar: (1995) 4 SCC 683 and Karnataka Power Corpn. Ltd. Vs. K.Thangappan and Anr.:
(2006) 4 SCC 322 in support of the submissions that the relief in this petition deserves to be declined for delay. The learned counsel for the respondent RIICO also contended that under the Disposal Rules 27 of 1979 the petitioner could have questioned the cancellation of allotment within 30 days but neither any such challenge was made within 30 days nor there is any explanation as to why the petitioner permitted such time to expire and then approached the Court very late. The learned counsel for the petitioner has referred to the decision in M/s Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur & Ors.: (1992) 2 SCC 598. The basic principle from such and other cases remains that in appropriate cases, the High Court may refuse to invoke its extra-ordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with lapse of time and other circumstances, causes prejudice to the opposite party; but mere physical running of time cannot be considered decisive. As noticed, in the present case, there is no such aspect of any third party right having been created before filing of the writ petition nor any other factor appears operating wherefor the petition be declined altogether only on the ground of delay.
Point No.1 (b):
On the aspects of acquiescence, waiver and conduct, the learned counsel for the respondents have laid great emphasis. It has been argued with reference to the pleadings as taken in the petition that the petitioner chose to project the things as if the amount has been detained by the RIICO instead of coming out forthright that the RIICO in fact refunded an amount of Rs.1,94,000/- 28 on 22.12.1999 and she accepted such refund on 28.04.2000. It has been submitted that the fact of acceptance of refund is conspicuously missing in the writ petition and want of bona fides in the intention of the petitioner is explicit. It has also been argued that the prayer clause as framed in this writ petition seeking refund of the entire amount with interest clearly fortifies the objection that the petitioner has suppressed the material fact of refund of the amount and acceptance of such refund without protest. It has, thus, been contended that the petition deserves to be dismissed on the conduct of the petitioner and on the principles of acquiescence. The learned counsel for the respondents have referred to the cases of Vijay Syal and Anr. Vs. State of Punjab and Ors.: (2003) 9 SCC 401, Kanhaiyalal Vs. Indian Oil Corporation Ltd. & Anr.: 1986 WLN (UC) 52, Punjab & Sind Bank and Anr. Vs. S.Ranveer Singh Bawa & Anr.:
(2004) 4 SCC 484, Bank of India & Ors. Vs. Pale Ram Dhania: (2004) 9 SCC 36, Bank of India and Ors. Vs. O.P.Swarnakar & Ors.: (2003) 2 SCC 721, Joseph Carlos Xavier Louis Anthony Benedict Aldo Costa Vs. Stanislaus Costa and Ors.: AIR 1968 Madras 161, Bhutoria Trading Co. Ltd. Vs. Allahabad Bank Ltd. & Ors.: AIR 1977 Calcutta 363 and Narendra Bahadur Tandon Vs. Shanker Lal: AIR 1980 SC 575.
The counsel for the petitioner, per contra, has referred to the pleadings in the petition, particularly paragraph-11, and submitted that on a proper construction it is but apparent that the petitioner 29 has not concealed any fact and has rather pointed out that the respondent had deducted Rs.30,000/- against the cheque of Rs.2,25,000/- as deposited by her; and that relief has also been sought, in the alternative, for refund of the ''entire amount'' alongwith interest. The learned counsel submitted that mere deficiency of words or use of particular phraseology cannot be decisive and it is substance of the matter that is required to be looked at.
Though the learned counsel for the respondents have relied upon several of the decisions, as noticed above, wherein the underlying principle remains that if a person is found guilty of suppression of material facts, writ jurisdiction may not be available to him but then, in the comprehension of the pleadings,this Court is unable to find the present one to be a case of concealment or suppression of material facts so as to decline writ jurisdiction to the petitioner altogether.
The decisions as relied upon by the learned counsel for the respondent proceed on their own facts so far the aspect relating to conduct of a litigant and so also the aspect of acquiescence are concerned. The decision in Vijay Syal's case (supra) where the appellants made misrepresentation on facts and levelled false allegations of mala fide and bias to gain advantage before the Court and the decision in Kanhaiyalal (supra) where the petitioner concealed the fact of his conviction and deliberately misled his employer in obtaining appointment, stand on entirely different 30 footings and do not appear having direct application to the present case. The decisions in S.Ranveer Singh Bawa, Pale Ram Dhania, and O.P.Swarnakar (supra), essentially representing the position of such employees who earlier opted for VRS and obtained retiral benefits but subsequently were seeking to withdraw from retirement scheme; and who were held disentitled to resile from VRS on the principle of estoppel, are also on the principles that cannot be imported for the present case directly. The decision in Joseph Carlos (supra), again, putting in operation the principles of estoppel where it was found that the plaintiff's father had settled the dispute and received his share of sale proceeds of trust property sold by the trustees and hence the plaintiff was found disentitled to charge the trustee of breach of trust or to follow the alleged trust property; the decision in Bhutoria Trading Co. Ltd. (supra) where, by its conduct the plaintiff-company showed authorisation of a person to encash cheque and was held estopped from challenging his authority; and the decision in Narendra Bahadur Tandon (supra) where after accepting rent the landlord was held estopped from denying the right of the successor-in-interest of the lessee in the suit land, are all proceeding on the principles of estoppel where a person is held disentitled to plead contrary to a fact or set of things which he has specifically asserted by words or conduct, in the opinion, of this Court hardly operate against the claim of the petitioner in the present case merely for having encashed the refund cheque sent by 31 the RIICO to the extent that she be held debarred from raising grievance against cancellation and so also against deduction of the amount deposited by her. Noteworthy it is that even while making the so-called refund, the RIICO proceeded to deduct a part of the amount that was lying in deposit with it for long. It was not the case that the entire deposited amount had been refunded and accepted by the petitioner so as to consider the operation of principles of estoppel against her.
The learned counsel for the respondent has also referred to the decision in Kumud Kumar Vs. Central Bank of India and Anr.:
(2000) 9 SCC 244 to submit that after acquiescence, the contest of case amounts to abuse of process of law. As noticed, it is difficult to find a clear case of acquiescence in the present matter. The decision in Kumud Kumar (supra) was, again, on an entirely different fact situation where a decree for possession and mesne profits as awarded in favour of the landlady was set aside in first appeal for want of notice terminating tenancy under Section 106 of the Transfer of Property Act and the landlady, thereafter, issued notice terminating tenancy and then filed the suit for possession and mesne profits that was decreed. On such facts, the appeal in respect of appellate order in the first suit was held not entertainable and the Hon'ble Court held that two remedies could not be pursued simultaneously. The present one is not a case of petitioner taking recourse to two remedies simultaneously.32
The learned counsel for the respondent has also referred to the decision in P.Chitharanja Menon & Ors. Vs. A.Balakrishnan & Ors.: 1977 (2) SLR 289 to submit that the basic order dated 03.07.1999 has not been challenged and the order dated 22.12.1999 was only the consequential of the requirements of the earlier order; and for want of challenge to the basic order, the writ petition is liable to be dismissed. Again, it is the substance of the matter that is required to be looked at and not the form. The petitioner's claim in this writ petition has precisely been of quashing the order dated 22.12.1999 and for re-allotment of the plot on concessional rates or any other plot at least of the same measurement as was allotted to her under the letter Annexure-2 and in the alternative for refund of the entire amount together with interest.
In this nature case, even if the petitioner has not as such sought a relief of quashing of a part of communication dated 03.07.1999, it cannot, again, be said that the petitioner would not be entitled to any relief at all.
Though this Court has reservations on the pleadings as made by the petitioner where it has not been candidly and forthrightly stated that she has otherwise received the cheque towards refund sent by the RIICO and encashed it too but then, any such shortcoming in the pleadings does not, in the facts and circumstances of this case, lead to the conclusion that the petitioner has intentionally suppressed the material fact. Rather the fact has 33 been indicated in the averments that the respondent RIICO deducted Rs.30,000/- from out of the amount deposited by the petitioner. Relief has also been claimed for refund of the entire amount deposited by the petitioner alongwith interest.
Though the facts relating to encashment of the refund cheque by the petitioner have not been stated in so many words in the petition but and otherwise, the fact of cancellation of allotment and deduction of the amount has been indicated. The effect of the overall fact situation shall, of course, be considered while dealing with the question of grant of relief, but in the totality of circumstances of this case, this Court is unable to agree with the submissions of the respondents that the petitioner be held disentitled to any relief in this writ petition for having encashed the refund cheque sent by the RIICO.
Point No.2:
So far the merits of the case are concerned, though it has been argued on behalf of the respondents that the petitioner did not comply with the allotment conditions and did not comply with requirements of the subsequent communications whereby the concessional rate was allowed; that the petitioner was not even entitled to claim concessional rates for having not adduced the requisite proof in that regard with the application; and that she made the prayer for concessional rate only at the later stage but such submissions, in the opinion of this Court, are effectively nullified by 34 the very fact that the respondent RIICO itself, though it had on the earlier occasions declined to allow concessional rates and alleged want of proper documents in that regard, but, without supplying of any other document and without anything else, proceeded to state, under the communication dated 03.07.1999, acceptance of the prayer of the petitioner for grant of concession. When such a prayer was indeed accepted by the RIICO on 03.07.1999 on the basis of the very record as was available, it bits logic as to why did the RIICO at all decline such a prayer on the earlier occasion particularly under the communication dated 04.07.1998 ? The respondent RIICO appears rather estopped from suggesting that the petitioner was not entitled to the concessional rates on the day the petitioner made a request therefor.
The learned counsel for the private respondent has referred to the decisions in Laxmi Sales Corpn. Vs. Bolangir Trading Co. and Ors.: (2005) 3 SCC 157, Balram Vs. Ilam Singh and Ors: AIR 1996 SC 2781 and Pramila Suman Singh Vs. State of Maharashtra & Ors.:
(2009) 2 SCC 729 to submit that mandatory conditions of allotment ought to have been complied with and for non-compliance, the allotment was required to be cancelled. However, all such suggestions against the claim of the petitioner fall to the ground when it is noticed that even if once upon a time, the RIICO attempted to decline the prayer of the petitioner for concessional rates, the RIICO itself ultimately did accept the same and cancellation of 35 allotment of the petitioner had not been on any other ground except non-deposit of the disputed amount. The learned counsel for the petitioner has rightly referred to the principles in the case of Mohinder Singh Gill and Anr. Vs. The Chief Election Commissioner, New Delhi & Ors.: AIR 1978 SC 851 that validity of an order is to be judged by the reasons mentioned therein and cannot be supplemented by fresh reasons. Moreover, so far the grant of concessional rate is concerned, it remains essentially a matter between the writ petitioner and the RIICO and the private respondent hardly appears having a right to question the entitlement of the petitioner therefor.
The petitioner, after receiving the communication dated 03.07.1999, did represent the matter under the representation dated 07.07.1999 particularly questioning the demand of amount of interest and this Court is unable to sustain the action of the respondent RIICO in issuing the impugned communication cancelling the allotment made in favour of the petitioner with forfeiture of a part of deposited amount on the ground that the petitioner failed to deposit the remaining amount towards development charges with interest. Such an action, in the given set of facts and circumstances, suffers from stark unfairness on the part of RIICO. As noticed, the petitioner had deposited an amount of Rs.2,25,000/- with the respondent RIICO even while moving the application for allotment on 12.12.1997. After receiving the allotment 36 letter dated 19.01.1998, the petitioner remitted further an amount of Rs.1,16,250/- through cheque on 20.04.1998 but the RIICO did not accept the same on the dispute regarding claim of concessional rates. However, ultimately the RIICO itself acceded to the claim of concessional rates under its communication dated 03.07.1999 and demanded development charges at Rs.1,16,250/-, that is, the very same amount that the petitioner had remitted on 20.04.1998. This Court is unable to find even a wee bit of justification in demand of interest amount of Rs.26,887/- in the communication dated 03.07.1999. The petitioner had a legitimate grievance against such demand of interest; and insistence of RIICO for payment of such interest is very difficult to be appreciated. However, the question still remains as to what the relief the petitioner is entitled to; and such an aspect shall be considered in point No.3 after dealing with the other questions involved in the matter.
Point No.4:
So far the aspect of dealing with the plot in question by the RIICO during currency of stay order of this Court is concerned, the fact that the plot in question was dealt with absolutely contrary to the stay order of this Court is not and cannot be in dispute. The suggestions as made in the reply to the contempt petition about want of knowledge of the stay order have their own shortcomings particularly when the stay order was, undoubtedly, passed and confirmed in the presence of counsel for the RIICO. However, the 37 question is as to whether the respondents are guilty of contempt of Court on this count?
Having taken into comprehension the overall facts and circumstances, this Court is of opinion that even when the respondents cannot be said to have acted with due diligence and proceeded to do the acts quite contrary to the orders of this Court but and yet, it is difficult to find a case of willful disobedience. The fact of passing of the stay order definitely remains on record but then, the plot was indeed advertised for open auction and then auction proceedings were conducted. There has not been any attempt on the part of any officer to enter into any clandestine deal. It appears that the persons dealing with the matter had definitely been negligent and did not take care to remain vigilant about and adhere to the requirements of the orders passed by this Court but then, an attempt at willful disobedience does not appear in the matter; and even when conduct of the officers of the respondent RIICO cannot be appreciated, this Court is of opinion that a benefit of doubt goes so far the aspect of willful disobedience is concerned. So far the non- applicant No.4, the auction purchaser, is concerned nothing of disobedience could be imputed upon him. He had participated in the auction proceedings conducted by RIICO quite oblivious of pendency of litigation and currency of stay order. In the overall view, the contempt proceedings deserve to be dropped though while expressing dissatisfaction over the manner of dealing with the matter 38 by the concerned officers of RIICO. Though the learned counsel for the non-applicants has made elaborate submissions on the aspect of delay in filing of the contempt petition after more than 4 years of the auction proceedings and has prayed for dropping of the contempt proceedings on this count alone but in the circumstances of the case, it does not appear necessary to enter into such contentions so far the present contempt proceedings are concerned. Point No.5:
So far the private respondent, who is said to have participated in the auction proceedings and purchased the plot in question is concerned, this Court finds that the communication dated 15.03.2008 had been for him a bolt from blue and obviously he was taken unawares. The respondent RIICO even did not put him to any warning and it appears that immediately after noticing the contempt proceedings, they proceeded to cancel the allotment made in his favour. Though such cancellation was definitely required to be ordered for the allotment being directly contrary to the stay order of this Court and to that extent the respondents in RIICO cannot be faulted with but then, the private respondent has his own set of grievances and cannot be said to be unjustified in assailing such communication by way of counter writ petition in these very proceedings.
Though challenge to the communication dated 15.03.2008 by the private respondent in these very proceedings has been put to 39 question but as already noticed, the private respondent was permitted to join this writ petition by the order dated 02.05.2008 by this Court after finding that cancellation of auction has direct effect on his rights and he would be further affected by the final outcome of the petition. As noticed, the RIICO had proceeded in the first place to auction the plot in question, albeit contrary to the stay order of this Court, and allotted the same to the private respondent against consideration. The cancellation had been ordered only in the wake of contempt proceedings. In the given set of facts and circumstances, this Court is satisfied that the private respondent has rightly put the challenge to the said order in these proceedings. As regards the maintainability of a counter writ petition, the order dated 11.12.1992 as passed in S.B.Civil Writ Petition No.2218/1992:
Sharad Chandra and Ors. Vs. Rajasthan High Court & Ors., and so also the principles in the case of Jag Mohan Chawla and Anr. Vs. Dera Radha Swami Satsang & Ors.: AIR 1996 SC 2222 as relied upon by the learned counsel for the private respondent do lend support to the submissions on maintainability of such a counter claim in these proceedings. In the given set of facts and circumstances of the present case where the order dated 15.03.2008 seeking to cancel the allotment made in favour of the private respondent after more than 4 years came to be passed only because of the proceedings in these matters, the private respondent could not have raised grievance against the said order by way of any other 40 proceedings; and even if the private respondent would have attempted such a challenge separately, in the opinion of this Court, such challenge could not have been considered away and apart from these proceedings.
Though the learned counsel for the writ petitioner has referred to the decision in the case of Ravi Rao Gaikwad and Ors. Vs. Rajajinagar Youth Social Welfare Assn. and Ors.: (2006) 5 SCC 62 to submit that the questions involved in the present matters are required to be considered on the basis of material placed by the petitioner and the respondent RIICO and that the private respondent has no role in the matter and hence, cannot be permitted to participate on the dispute but such submissions cannot be accepted particularly in view of the fact that the private respondent has been permitted to be joined as party to the petition by this Court by specific speaking order dated 02.05.2008.
The learned counsel for the writ petitioner has laid emphasis on the submissions that the allotment in favour of the private respondent being contrary to the stay order of this Court and being nothing less than a fraud, such allotment should be treated as nullity and cannot be sustained; and has referred to the decisions in State of A.P. and Anr. Vs. T.Suryachandra Rao: (2005) 6 SCC 149, Union of India & Ors. Vs. M.Bhaskaran: 1995 Supp (4) SCC 100, S.P.Chengalvaraya Naidu by LRs. Vs. Jagannath by LRs and Ors.:
(1994) 1 SCC 1 and Asharfi Lal Vs. Koili (1995) 4 SCC 163. But, as 41 already noticed, it is difficult to find a case of fraud so far the allotment to the private respondent is concerned. It was definitely a matter of gross negligence and want of reasonable care on the part of the officers of RIICO but cannot be held to be fraudulent. As already found above, though the allotment to the private respondent of the plot in question had been contrary to the operating stay order and to that extent is hit by the principles available in the decisions in the State of Bihar Vs. Rani Sonabati Kumari: AIR 1961 SC 221 and Century Flour Mills Ltd. Vs. S.Suppiah and Ors: AIR 1975 Madras 270 that anything done in contravention of the order of stay granted by the Court cannot be recognised but then, the fact situation of the present case is that such was not an act done in willful disobedience, as noticed in point No.4 supra and then, such action was questioned by the petitioner after more than 4 years of the allotment to the private respondent. These peculiar facts and factors, in the overall circumstances of the case, are compelling enough that the private respondent be not put to unnecessary jeopardy.
This Court is of opinion that in the given set of facts and circumstances, the reasonable way to balance the equities is to maintain the allotment as made in favour of the private respondent and at the same time to award monetary relief to the writ petitioner. Points Nos.3 & 6:
This Court finds that while the contempt proceedings deserve 42 to be dropped, the petitioner and the private respondent deserve to be granted necessary reliefs. It is, of course, true that during the course of submissions, upon the query put by this Court, the counsel for the petitioner candidly submitted that the petitioner was ready to make payment of the amount of Rs.5,32,000/- towards allotment of the plot in question that would be representing the present market price but there appears no reason to deprive the private respondent of the plot in question particularly when it is noticed that the petitioner brought to the notice of this Court the fact of such allotment after about 4 years. The suggestion about the petitioner being not aware of the auction proceedings has its own shortcomings when viewed in the light of the fact that the plot was indeed advertised for auction by way of general advertisement. Even if the aspect suggested by the respondents about the presence of the husband of the petitioner at the time of auction is not given much credence for want of documentary proof, the fact that the plot in question was indeed advertised cannot be lost sight of. If the petitioner has not been duly diligent in relation to her professed rights, at this length of time and at this juncture, granting of relief in the fashion that the allotment be restored to the petitioner would be, in the opinion of this Court, not in the balance of equities.
In the overall circumstances of the case, this Court is of opinion that interest of justice shall be served if the petitioner is held entitled to monetary relief and not to any other relief. Because of 43 this reason, it is also appropriate that the communication dated 15.03.2008 be annulled by this Court and the allotment made in favour of the private respondent be permitted to be maintained.
The petitioner and the private respondent both have, one way or the other, suffered losses and harassment for unfair and negligent dealings on the part of the RIICO. While the petitioner is being denied relief of restoration of the plot only because the same has been allotted to the private respondent and such allotment was not questioned by the petitioner for over 4 years but, in the first instance, the RIICO had been unfair in demanding interest from the petitioner and then cancelling the allotment of the petitioner and then, in attempting to forfeit the amount that remained lying with it for long. It appears appropriate that the respondent RIICO be directed to pay interest to the petitioner, for the period the amount remained in deposit with it, at the rate of 18% per annum; further to pay the amount illegally deducted from the deposit made by the petitioner; and yet further to pay compensation to the petitioner in the sum of Rs.1,00,000/-. The petitioner and the private respondent both are further held entitled to the costs of this litigation. Conclusions and observations:
Accordingly, the answers to the questions calling for determination in these matters are as under:-44
1. (a) The petitioner is not guilty of any such delay or laches that exercise of writ jurisdiction be refused altogether;
(b) Mere receipt of the amount by the petitioner under the refund cheque sent by the RIICO with cancellation order does not, in the given set of circumstances, disentitle her to the relief in this petition;
2. The RIICO has definitely acted illegally and unfairly in issuing the impugned order dated 22.12.1999 cancelling the allotment of the plot in question as earlier made in favour of the petitioner and in forfeiting the part of the amount lying in deposit with it.
3. So far the relief is concerned, in the given set of facts and circumstances, the petitioner is held entitled to monetary relief and not to any other relief. In the circumstances of this case, it is considered appropriate and hence directed that to the petitioner the respondent RIICO shall pay interest calculated at the rate of 18% per annum for all the period the amount paid by the petitioner remained in deposit with it; shall further pay the amount allegedly deducted from the deposit made by the petitioner; and shall yet further pay a sum of Rs.1,00,000/- (one lac) as compensation. The petitioner is further held entitled to the costs of this litigation quantified at Rs.25,000/- (twenty five thousand) payable by the respondent RIICO;
45
4. The non-applicants and particularly the non-applicants Nos. 2 and 3 did not act proper in advertising the plot in question for auction sale despite specific stay order of the Court that was passed and confirmed in the presence of the counsel for RIICO; and the suggestion of want of specific information in that regard only depicts want of due diligence and reasonable care on their part. The faults and follies, difficult to be appreciated, though fall short of a case of willful disobedience but the respondent RIICO is definitely liable to compensate the parties for the loss and harassment suffered by them;
5. The private respondent, being totally unaware of the stay order of this Court, had been a bona fide purchaser of the plot in question for value and at least invested money over such purchase; and the exercise of cancellation of allotment under the communication dated 15.03.2008 having been undertaken by the RIICO only in order to purge the disobedience of the orders passed by this Court, even when not illegal, deserves to be annulled in the peculiar facts and circumstances of the case and for this aspect, the private respondent who has been permitted to join as a party to this writ petition cannot be held disentitled to assail the impugned communication dated 15.03.2008 in these proceedings by way of Counter Writ Petition; 46
6. The private respondent is entitled to the relief that the communication dated 15.03.2008 be annulled and allotment in his favour be maintained. This respondent is further held entitled to compensatory costs of this litigation quantified at Rs.25,000/- (twenty five thousand) payable by the respondent RIICO.
The writ petition and so also the counter writ petition stand allowed to the extent indicated above; and the contempt petition is dismissed and notices are discharged.
However, before parting with the matter, this Court would definitely like to make comment, as has already been indicated above, that dealing of the matter of allotments on the part of the respondent RIICO whether qua the petitioner or qua the private respondent has left very many things to be desired and even in relation to the pending litigation, the concerned officer of the RIICO seems to have not taken proper care and caution. While different set of amount as awarded in this case would be payable by the respondent RIICO within 60 days from today but after making such payments, it shall definitely be open for the respondent RIICO to make recoveries, of course, in accordance with law, of such amount from the persons responsible therefor.
(DINESH MAHESHWARI),J.
MK 47 S.B.CIVIL WRIT CONTEMPT PETITION NO.38/2008 M/s Climpex Vs. Kuldeep Ranka & Ors.
Date of Order :: 8th December 2009
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. N.S. Acharya ]
Mr. N.R. Budania ], for the petitioner.
Mr. N.M. Lodha ]
Mr. Ravi Bhansali ]
Mr. M.S. Singhvi ]
Mr. Manish Patel ], for the respondents.
Mr. B.D. Purohit ]
The contempt petition is dismissed and notices are discharged but with the observations vide common order made in S.B. Civil Writ Petition No.3582/2000 : M/s Climpex Vs. The Rajasthan State Industrial Development & Investment Corporation Limited & Anr.
(DINESH MAHESHWARI), J.
MK