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1995 DIGILAW 831 (ALL)

Shiva Continental (P. ) Ltd. v. U. P. Financial Corporation

1995-08-11

A.P.MISRA, C.A.RAHIM

body1995
JUDGMENT : A.P. Misra, J. We are disposing of all the aforesaid writ petitions finally at the stage of admission in view of exchange of affidavits in accordance with the Rules of Court and also as agreed to by learned Counsel for the parties. in fact the Petitioner and Its directors have preferred all the aforesaid writ petitions. We are referring hereunder short facts which are relevant for the disposal of these writ petitions. 2. Learned Counsel for the Respondent Uttar Pradesh Financial Corporation (hereinafter referred as the Corporation) has stated that proceeding for recovery as against the Petitioner in pursuance to the notice u/s 29 of the Uttar Pradesh Financial Corporation Act has since been withdrawn, all the aforesaid writ petitions except writ petition No. 17868 of 1987 have become infructuous which is denied by the Petitioners' counsel. We having heard learned Counsel do not find any of the aforesaid writ petitions having become infructuous except part of Writ Petition No. 9404 of 1987, hence we proceed to decide them on merit. 3. Short facts, according to the Petitioners, are that the Petitioner filed a map before the Development Authority for sanction u/s 15 of the Uttar Pradesh Urban Planning and Development Act, 1973 after completing all the formalities, certain objections were raised for removing the defects. Thereafter, on 10.10.1985 the map was sanctioned for the construction of a Hotel building. On 13.12.1985, engineers of the Development Authority inspected the site where certain construction was going on. However, on 12.12.1985, the map was cancelled by the Development Authority without giving any reason. This led to the filing of writ petition No. 577 of 1986 by the Petitioner and by means of an interim order this order was stayed with a direction that the Petitioner shall not make any further construction. Thereafter a notice was served on the Petitioner under sections 27 and 28 of the aforesaid Act, for stopping further constructions which was replied. Then the Vice-Chairman of the Development Authority made an oral suggestion that in case the Petitioner withdraws the aforesaid writ petition and files a revised plan, the matter may be reconsidered which the Petitioner submitted in writing to the authority concerned. Then the Vice-Chairman of the Development Authority made an oral suggestion that in case the Petitioner withdraws the aforesaid writ petition and files a revised plan, the matter may be reconsidered which the Petitioner submitted in writing to the authority concerned. However, certain report of an engineer led Into passing an order by the Development Authority for demolition of the construction as against which also the Petitioner filed another writ petition No. 5779 of 1987 in which also the impugned order, as aforesaid, was stayed. All this precipitated and on 13.5.1988 the map was compounded by the Development Authority and the Petitioner deposited the compounding fee to the tune of Rs. 1,15.000.00. 4. It is in this background, we spell out facts which are relevant for the disposal of these petitions. On 10.7.1986, the Petitioner filed an application before the Corporation for granting loan of Rs. 40 lacs for the construction of a building for starting Hotel industry. On 3.10.1986, the said Corporation sanctioned the loan after making requisite enquiry. Thereafter, on 16.10.1986 and 17.12.1986, it advanced part of the aforesaid loan amounting to Rs.4.66 lacs and Rs.5 lacs respectively. Thereafter, another Internal conflict arose, the details of which are also stated hereunder. 5. The Regional Manager of the Corporation, Shri K.K. Singh served a show cause notice upon the Petitioner for cancellation of the aforesaid sanctioned loan on the ground that the Petitioner concealed cancellation of this map by the Development Authority. Thereafter on 24.1.1987, he filed a reply that cancellation of his map was stayed by this Court and this fact was also discussed with the Regional Manager. The fact about the stay order dated 6.3.1987 passed in his favour as against cancelling his map in writ petition No. 5779 of 1987 was communicated to the Corporation which was received in their office on 18.3.1987. Thereafter the Petitioner sent a request letter for paying undisbursed loan since the balance loan was not paid to which the Corporation paid no heed. This led into filing another writ petition, being Civil Misc. Writ petition No. 5394 of 1987 for a direction to release the balance loan. This Court in it directed the Corporation to consider the reply of the Petitioner and pass suitable orders. This led into filing another writ petition, being Civil Misc. Writ petition No. 5394 of 1987 for a direction to release the balance loan. This Court in it directed the Corporation to consider the reply of the Petitioner and pass suitable orders. Further case is that the aforesaid officer Sri K.K. Singh made some illegal demand and under the compelling circumstances, a trap was laid and ultimately it led Into his arrest and departmental proceeding. It is not A.W.C. 25 necessary to refer to its detail for the purpose of disposing of these writ petitions. However, the aforesaid incidence led into passing of an order, not permitting Petitioner to enter in the Corporation (Annexure 16 to the writ petition), which is also subject-matter of challenge in the writ petition No. 9404 of 1987. However, Petitioner received information of the cancellation of the undisbursed loan, which is the cause of filing writ petition No. 9404 of 1987. On 18.5.1987, this Court stayed the order prohibiting entry of the Director of the Petitioner's company in the Corporation and also stayed recovery proceedings. 6. Thereafter, since the Respondents were compelling the Petitioner to make the payment and were not releasing the undisbursed loan, the Petitioner filed another writ petition, being writ petition No. 17179 of 1987 for the release of the loan by the Corporation. The Court by an order dated 7.7.1988 directed the Petitioner to approach the Corporation with a representation and appraise the subsequent development, viz., the regularisation of the construction by the Development Authority. The Petitioner made a representation before the Respondent No. 1 who on 17.8.1988 rejected the representation on the same ground that it concealed the fact relating to cancellation of his map and also the pendency of litigation with the adjoining Hotel Company M/s Hotel Darpan. On 1.9.1988, this Court also stayed recovery in writ petition No. 17174 of 1987. 7. Apart from these, the Petitioner's further grievance is that the State District Level Committee in its meeting held on 11th December, 1986, sanctioned capital subsidy of Rs. 11,25,000/- which it did not receive to which he made representations for its release. Finding no response, the Petitioner filed another writ petition No.17850 of 1989 for releasing this subsidy. 8. The aforesaid facts make it clear that in Writ Petition No. 9404 of 1987, the main challenge is cancellation of loan, apart from other Incidental reliefs. 11,25,000/- which it did not receive to which he made representations for its release. Finding no response, the Petitioner filed another writ petition No.17850 of 1989 for releasing this subsidy. 8. The aforesaid facts make it clear that in Writ Petition No. 9404 of 1987, the main challenge is cancellation of loan, apart from other Incidental reliefs. While Writ Petition No. 5394 of 1987 and 17179 of 1987 are for release of the balance loan and Writ Petition No. 17174 of 1987 is against rejection of the representation which the Petitioner made on account of the order passed by this Court and consequential recovery thereafter while Writ Petition No. 17850 of 1989 is for the release of subsidy and Writ Petition No. 17868 of 1989 is for quashing of the first information report dated 24.12.1988 by the Corporation u/s 420/467/468/471, I.P.C. and for the stay of arrest of the Petitioner. 9. Aforesaid facts crucify into one main point. All the impugned Respondents' actions are founded on account of concealment by the Petitioner of the fact of cancellation of map by the Development Authority. Repelling this, learned Counsel for the Petitioner referred to paragraph 14 of the writ petition No. 9404 of 1987 which is quoted hereto as under: That on 31.7.1986, the Petitioner sent a letter to Respondent No. 2 informing about the cancellation of map and the stay order granted by this Hon'ble Court. The Petitioner also sent the copy of cancellation order and stay order along with the aforesaid letter. All these papers were received by the office of Respondent No. 2. The photostat copy of the letter is filed herewith as Annexure 4 to this writ petition. 10. To this specific averment, we do not find any denial in the counter-affidavit filed by the Corporation. Reply to this is paragraph 14 of the counter-affidavit, which is quoted hereunder: That in reply to the contents of para 14 of the writ petition it is stated that the Corporation sanctioned a term loan of Rs. 39, lacs vide sanction advice dated 3.10.86 on the basis of Information furnished by the Petitioner. 11. We find that there is no denial at all of the specific averment of the Petitioner that he has informed regarding cancellation of the map along with the stay order granted by this Court and also annexing copies of the same. 39, lacs vide sanction advice dated 3.10.86 on the basis of Information furnished by the Petitioner. 11. We find that there is no denial at all of the specific averment of the Petitioner that he has informed regarding cancellation of the map along with the stay order granted by this Court and also annexing copies of the same. in the absence of any denial, there is no alternative but to accept the averment made in paragraph 14 of the writ petition and then only one irresistible conclusion could be drawn is that the Petitioner has not concealed any fact regarding cancellation of the map. He through letter not only intimated the cancellation of the map but annexed with it the cancellation and stay orders in view of this we do not find any Justification for rejecting the representation on the ground of concealment of rejection of map by the Petitioner. These facts could never be construed as concealment. Apart from this, learned Counsel for Respondents could not place any other ground for sustaining the impugned orders. 12. This apart, Respondents' action in the alternative may be Judged from another angle. Every authority wielding power, while keeping within the sphere of law, has to be guided for exercising discretionary power to the spirit of law. Within the span of discretion, one which constitutes the spirit should be preferred, as that is the very purpose for which the law is made. It is the spirit which infuses life to the letters of the law. There cannot be law without spirit, without it, It would be like dead letters. Even procedural law is only in aid to deliver Justice to one. That is why any interpretation to such law which denies Justice has been time and again rejected by the courts. A law which is to the benefit of subject, has to be interpreted as such and any stringent law, leak proof from escapement from an offence has to be strictly Interpreted as that is the spirit of law. 13. Coming back to the present case, the Corporation has been created and law made to help various subjects financially for establishing their industry or other enterprise, ultimately benefiting industries and the State and in turn, to the growth of that State. This is the spirit behind it. 13. Coming back to the present case, the Corporation has been created and law made to help various subjects financially for establishing their industry or other enterprise, ultimately benefiting industries and the State and in turn, to the growth of that State. This is the spirit behind it. Of course, no benefit could be given to one who makes false declaration, conceals material particulars or makes misrepresentation, which but for concealment or misrepresentation would have been entitled for it. in the present case, sanction of map is an essential condition for grant of loan as it is that construction for which loan is sought. However, if a law permits condonement of any act, viz., construction as in the present case by compounding it, refusal by the Corporation of advancement of balance loan on the basis of fact preceding compounding could not be in aid of the spirit of that law. This goes against very spirit of law. Thus refusal of loan in such conditions would be exercise of discretion against the very spirit of law. 14. Learned Counsel for the Respondents then submitted, as the matter is of the year 1927, on account of the changed circumstances, it may require reappraisal afresh for releasing the balance loan out of loan already sanctioned. We think this would be proper. 15. Apart from this, the Petitioner has challenged Annexure 16 to the writ petition No. 9404 of 1987 by which entry of the Petitioner in the Corporation was stopped. This Court stayed that order by means of the interim order dated 18.5.1987. There could be no justification to sustain such an order. No one can be refused entry into any public office except as a regulatory measure of law and order situation which is not there in the present case. We quash Annexure 16 to the writ petition. So far as Annexure 17 is concerned, it is regarding non-disbursement of the balance loan. All these require reappraisal, in view of the changed circumstances, stated hereinbefore. Accordingly, the order so far as it seeks recovery against the Petitioner, which is under challenge in Writ Petition No. 17174 of 1987, in view of the statement made by the learned Counsel for the Corporation Sri V. M. Sahai, that the recovery as u/s 29 of the Uttar Pradesh State Financial Corporation Act has since been withdrawn, the writ petition to that extent has become infructuous. The other relief for disbursement of the balance amount of loan shall be reconsidered by the said Corporation in the light of observation made above. Thus various relief sought through the aforesaid writ petitions for quashing the order of cancellation of loan is also quashed and for the release of balance loan is disposed of in terms of the observations made above. Recovery stands withdrawn, hence no order is necessary. Further order rejecting the aforesaid representations made by the Petitioner earlier is also quashed. 16. Coming back to the writ petition No. 17668 of 1989 which is for quashing of the first information report, we find the allegations made therein is again the same which is the foundation of various impugned orders, namely, concealment regarding cancellation of the map. This part since we have not accepted in view of the finding recorded above, we do not find there is anything also left in the said first information report to permit the prosecution against the Petitioner. We accordingly quash the first information report dated 24.12.1988 which is Annexure VIII to the writ petition. Similarly in view of the aforesaid findings, the Respondent authority will now pass orders in accordance with law about the claim of subsidy by the Petitioner as made in writ petition No. 17850 of 1989. 17. Thus all the aforesaid writ petitions stand disposed of in terms of the findings and observations made by us above. We further direct the Corporation and the concerned Respondent to reappraise the question for granting balance loan, including subsidy, keeping in mind the findings recorded by us above after giving an opportunity to the Petitioner. The Petitioner will again approach the Corporation for reconsideration of the matter with a certified copy of the order passed today within a period of three weeks from today and the said authority will dispose of the same after giving an opportunity to the Petitioner in accordance with law, preferably within a period of six weeks thereafter. With the aforesaid observations, all the aforesaid writ petitions stand disposed of. Costs on the parties.