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2000 DIGILAW 83 (RAJ)

Mana Ram v. State of Rajasthan

2000-01-24

BHAGABATI PRASAD BANERJEE, SHIVARAJ V.PATIL

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Honble PRASAD, J.–The present batch of special appeals arise out of a common judgment of the learned Single Judge of this Court dated 17.2.1999, made in writ petitions. In all these appeals a common question of law arises for consideration on similar facts. Therefore, all of these special appeals are disposed of by this common judgment. (2). A joint writ petition was filed under the name and style of Mana Ram, joined by 100 other persons which was registered as S.B. Civil Writ Petition No. 1451/97. In this writ petition, the petitioners challenged the challans dated 13.3.1997. By virtue of these challans a demand was raised against the petitioners for paying interest on the instalments which were paid by the petitioners in lieu of the land allotted to them under Rule 13-A of the Rajasthan Colonisation (Allotment and Sale of the Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 (hereinafter referred to as `the Rules of 1975). Rule 13-A of the Rules of 1975 provides for sale by special allotment of the land to the applicants. (3). Considering the joint writ petition filed by Mana Ram and others, the learned Single Judge of this Court ordered that all those who have joined as the petitioners in the writ petition are required to pay separate court fees. On such orders being passed by the learned Single Judge of this Court on 23.4.1997, separate court fees was paid by the appellants. After payment of the court fees, notices of the writ petition were ordered to be issued to the respondents. (4). While issuing notice this Court ordered that the petitioners should deposit the amount of instalments as ordered in S.B. Civil Writ Petition No. 1130/89 decided on 14.1.1997. By this order the respondents were required to accept the amount of instalments by which time the respondents had not raised any demand towards interest. It is the admitted case of the parties that such amount was paid by the appellants. (5). The respondents appeared in response to the notices and filed reply to the writ petition. An objection regarding the maintainability of the writ petition was raised by the respondents. It was to the effect that no joint writ petition was maintainable. In the face of the preliminary objection of the respondent State, the petitioners sought time and preferred separate writ petitions for and on behalf of all the petitioners. (6). An objection regarding the maintainability of the writ petition was raised by the respondents. It was to the effect that no joint writ petition was maintainable. In the face of the preliminary objection of the respondent State, the petitioners sought time and preferred separate writ petitions for and on behalf of all the petitioners. (6). In the first instance such separately preferred writ petitions were not accompanied by the required court fees stamp. The contention of the appellants was that they have already paid the court fees pursuant to the orders of the court vide order dated 23.4.1997. Office placed these writ petitions in the defective category as no court fees was paid on individual writ petition. (7). It was found that the defect of court fee was not liable to be condoned. Therefore, counsel for the appellants affixed the requisite court fees stamp on each of the writ petitions. The writ petitions were regularly registered. (8). Learned Single Judge in his judgment held that the manner in which the joint writ petition has been filed and subsequently separate writ petitions have been filed and court fees has been paid, did not absolve the petitioners from the preliminary objection. The respondents objection regarding maintainability of the joint writ petition was upheld. Learned Single Judge observed that there is not of force in the preliminary objection raised by the learned counsel appearing for the State. Learned Single Judge observed that under Rule 13-A (5) (iii), which has been upheld by this Court, the respondents can charge interest at the rate of 18%. In this view of the matter, the learned Single Judge dismissed the writ petitions. Hence, these appeals. (9). Learned counsel for the appellants submitted that the manner in which the petitions were dealt with by the learned Single Judge, as to the maintainability, they could not have been dismissed on that ground when under the orders of the Court the petitioner-appellants submitted the court fees at the initial stage and then at the subsequent stage of hearing separate writ petitions were preferred and separate court fees was paid. (10). Learned counsel for the appellants, urging on the merits of the case, submitted that Rule 13A of the Rules of 1975 is an independent provision. In this, there is no conferment of powers on the authorities to charge any interest from the appellant. (10). Learned counsel for the appellants, urging on the merits of the case, submitted that Rule 13A of the Rules of 1975 is an independent provision. In this, there is no conferment of powers on the authorities to charge any interest from the appellant. The only provision available for charging interest in Rule 13A is on the basis of clause (viii) of sub-rule (5). This was added by an amendment dated 16.3.1996. This clause provides that as and when an allotment has been cancelled for non-payment or the allotment or comes within the category of deemed cancellation, on an application being made by the allottee, within the specified time, under this rule the allotment can be restored. Provided, the allottee pays instalment and interest at the rate of 18%. The only provision for charging of interest is provided in clause (viii) of sub-rule (5) of Rule 13-A. As such interest can be charged only after an order of cancellation or deemed cancellation has been passed. (11). The case of the appellant is that there was never any order of cancellation in existence. The provision regarding deemed cancellation has been held by this Court to be violative of the principles of natural justice and, therefore, struck down. In this back-ground it was not permissible for the respondents to have raised any demand of interest from the petitioners. (12). Learned counsel has submitted that apart from Rule 13-A of the Rules of 1975 there are provisions in Rules 14 and 17 of the Rules of 1975 to charge interest. Those are entirely different kinds of situations and cannot be enforced in relation to an allotment under Rule 13A of the Rules of 1975. The provisions as provided in Rules 14 and 17 of the Rules of 1975 cannot be imported to charge interest on the due instalment for allotment made under Rule 13A of the Rules of 1975. (13). It has also been urged by the learned counsel for the appellants that allotment was made in or around April 1987. The first instalment became payable in or about January 1988. On that day there was no provision for charging of interest. The provision of the Rules do not make any of the charging provisions retrospective. Thus, there is no provision for charging interest on the day when the allotment was effected in favour of the petitioners. The first instalment became payable in or about January 1988. On that day there was no provision for charging of interest. The provision of the Rules do not make any of the charging provisions retrospective. Thus, there is no provision for charging interest on the day when the allotment was effected in favour of the petitioners. The subsequent amendment does not cover the case of the appellants. There is no indication in the rules that such rules have been made applicable retrospectively. (14). The appellants further case is that charging of interest under the rules could only be made by a competent authority. The challans have been issued by the Tehsildar and the Tehsildar is not competent authority under the rules to raise any such demand. Therefore, the demand raised by the Tehsildar is per se illegal and without jurisdiction. (15). Lastly, learned counsel for the appellant has urged that by order dated 14.1.1997 when this Court ordered the appellant to make payment of the demand raised against him, at that time no orders were passed regarding payment of interest. The Court having not given any direction regarding payment of the interest, it should be deemed that the Court has not allowed interest to the respondents. (16). Learned counsel for the appellants has placed reliance on a decision of the Supreme Court rendered in India Carbon Ltd. etc. vs. State of Assam (1), wherein it was observed as under:- ``There being no substantive provision in the Central Act requiring the payment of interest on Central Sales Tax, the States sales tax authorities cannot, for the purpose of collecting and enforcing payment of Central Sales Tax, charge interest thereon. Therefore, the requirement of the sales tax authorities that the assessee should pay interest at the rate of 24% p.a. on delayed payment of Central Sales Tax under the provisions of the States Act must, be held to be bad in law. (17). Learned counsel for the respondents controverting the arguments of the learned counsel for the appellants stated that the appellants when they filled in the form for allotment under Rule 13-A have undertaken to follow the law. (17). Learned counsel for the respondents controverting the arguments of the learned counsel for the appellants stated that the appellants when they filled in the form for allotment under Rule 13-A have undertaken to follow the law. The undertaking given by the appellants in their application form in Clause 9 reads as under:- ``The applicant hereby agrees to abide by the provisions of (i) Rajasthan Colonisation Act; (ii) Rajasthan Colonisation (General Colony) Conditions, 1955 and (iii) the Rajasthan Colonisation (Allotment and Sell of Government Land in Indira Gandhi Canal Colony Area) Rules, 1975 and further undertakes to pay the price of Government land fixed by the Government and land development charges, if any, under rule 17 of the aforesaid Rules. (18). Learned counsel for the respondents further contended that the appellants knew right from the beginning that they are supposed to pay the price as has been notified. The litigation was initiated by the appellants and in this process the appellants have been illegally depriving the respondents of the amount which the appellants were required to pay, under the orders, which were passed in favour of the appellants, for allotment of the land. The appellants by this litigation created a situation which resulted in the deferment of payment of the instalments. The appellants cannot be permitted to take advantage of the situation and say that the respondents are not entitled to pay interest on such delayed payment. Even in equity the interest is chargeable on the amount which the allottees were required to pay in terms of the allotment and has not paid. Litigation initiated by the petitioners could not absolve them from the liability of paying interest. The contention of the petitioners that they are not liable to pay aforesaid amount has been seriously contested. It was canvassed that this has resulted in loss to the respondents. The petitioners are liable to make good the loss. (19). The learned counsel for the respondents has relied upon the observations of the Supreme Court made in Kerala State Electricity Board through its Special Officer (Revenue) and another vs. M.R.F. Limited (2), wherein the Honble Supreme Court has observed as under:- ``In deciding appropriate action by way of restitution, the court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the parties. (20). The petitioners earlier had challenged the fixation of price at the rate of Rs. 3,28,125/-per Murabba. Those writ petitions were dismissed. While dismissing the petitions, the learned Single Judge of this Court has observed as under:- ``It may also be stated that the petitioner had deposited money at the rate of Rs. 1,87,500/-per Murabba though he was required to pay at the rate of Rs. 3,28,125/-per Murabba as per order at Annex. 4. The balance amount has not been paid by the petitioner for years together because of the stay obtained by him in this petition. (21). The amount, which has been ordered to be paid by the petitioners, is not the amount computed or awarded by the court. The petitioners knew when they sought the allotment that they were required to pay the price of the Murabba at the rate fixed by the State Government. The petitioner took chance before this Court because two stray allottees got land allotted at the rate of Rs. 1,87,500/-. In this manner, it cannot be said that the amount, which has been ordered by this Court to be paid by the petitioners, is the amount awarded by the court. The amount, which the petitioner is ordered to pay, is the amount fixed by the State Government. This Court, while dismissing the writ petition, has held that the petitioner was liable to pay the amount at the rate which was fixed. At that time since the court was not awarding any amount, no interest was fixed on it. In this perspective, it cannot be said that the court has not awarded any interest on the instalment. Therefore, it is also not correct to say that the petitioners cannot be made liable to pay any interest. (22). The respondent State has levied interest on the petitioners at the rate of 18% per annum from the date instalment became due. On the date when the amount became due there was no legislative enactment to enable the State Government to charge interest on the amount not paid on an allotment made under Rule 13A of the Rules of 1975. Therefore, to that extent this Court feels that the charging of interest cannot be enforced against the petitioners from initial stage. But it cannot be said that the State Government cannot charge interest at all. Therefore, to that extent this Court feels that the charging of interest cannot be enforced against the petitioners from initial stage. But it cannot be said that the State Government cannot charge interest at all. In Rule 13-A of the Rules of 1975, under which the allotment was made in favour of the petitioners, the provision regarding charging of interest was incorporated on 1.3.1996. From this day the State Government had acquired right to levy interest. (23). In the instant case, the delay in payment has occasioned due to the litigation initiated by the petitioners. Had there been no litigation initiated by the petitioners, the State Government could have taken recourse to the provisions of Sub-rule (8) of Rule 13-A of the Rules. In this way the equity demands that the petitioners should pay interest at the rate of 18% per annum on the amount due on 1.3.1996 until the date of deposit of the amount. In awarding so, this Court is keeping in mind the ratio laid down by the Honble Supreme Court in the case of Kerala State Electricity Board (supra). (24). A reference may also be made in this regard to the decision of the Honble Court in the case of Style (Dress Land) vs. Union Territory, Chandigarh and another (3), where it has been observed as under:- ``The High Court was, therefore, not wrong in directing the payment of interest on the amount of arrears of rent for the period when the stay order was obtained till the period the writ petitions were dismissed.............The respondent authority not be equated with private commercial institutions and conferred with an amount of compensation in the form of interest which, in the judicial parlance, may amount to penalty, despite the fact that the persons found to have jeopardised the process of law were rightly held liable to compensate the respondent authority by way of interest. (25). In view of the aforesaid discussion, the demand as raised in not sustainable, However, the petitioners should compensate the State for delayed payment and for this they should pay interest at the rate of 18% per annum from the day the State acquired right after amendment in Rule 13-A of the Rules of 1975 i.e. 1.3.1996 until they made payment of the instalment. The appeals are disposed of accordingly in the terms indicated above modifying the common judgment of the learned Single Judge.