NAGINA PALACE CINEMA HALL v. STATE OF UTTAR PRADESH
2001-11-08
G.P.MATHUR, R.P.MISRA
body2001
DigiLaw.ai
G. P. MATHUR, J. ( 1 ) THIS writ petition under Article 226 of the Constitution has been filed praying that the citation dated 20. 5. 2001 issued by the Tehsildar, Jamanta, district Ghazipur, and also the attachment of properties made on 20. 7. 2001 be quashed and a direction be issued to the respondents not to auction the properties of the petitioner. ( 2 ) WE have heard the learned counsel for the petitioners, Sri A. K. Singh for respondent No. 3 and learned standing counsel for respondent Nos. 1 and 2. ( 3 ) THE petitioners took a loan of Rs. five lakhs from Urban Cooperative Bank Ltd. , Ghazipur, which was sanctioned on 21. 7. 1990. A citation dated 20. 5. 2001 has been issued by the Tehsildar, jamanla, Ghazipur, for recovery of Rs. 17,97,345. In paragraphs 8 and 12 of the writ petition, it is averred that the petitioners had filed two writ petitions earlier, but the copies of orders passed in the aforesaid writ petitions were not filed. We accordingly passed an order for filing of the copies of the orders passed in the said writ petitions. The petitioner thereafter filed a supplementary-affidavit which reveals the following facts. ( 4 ) ON 11. 4. 1991. a citation for recovery of Rs. 6,39,498 was issued against petitioner No. 1. The petitioner No. 1 then filed C. M. Writ Petition No. 15461 of 1991 challenging the said citation which was finally disposed of on 18. 11. 1991 and the operative portion of the order reads as follows : "after hearing the learned counsel for the petitioner, we are not inclined to go into the merits of the case as the counsel for the petitioner at the very outset has given an undertaking on behalf of the petitioner that the petitioner is ready to pay the entire dues plus uptodate interest and half of the recovery charge in case the petitioner is permitted to repay the same in four equal instalments. To this, the counsel for the respondent has no objection. The petitioner has further given an undertaking that he has not filed any other writ petition against the recovery. We. therefore, stay the recovery proceedings initiated against him for realisation of outstanding dues provided the petitioner deposits the entire dues in four equal instalments plus uptodate interest and half of the recovery charges.
The petitioner has further given an undertaking that he has not filed any other writ petition against the recovery. We. therefore, stay the recovery proceedings initiated against him for realisation of outstanding dues provided the petitioner deposits the entire dues in four equal instalments plus uptodate interest and half of the recovery charges. The first instalment shall be payable by 18. 1. 1992, second instalment by 18. 3. 1992, third instalment by 18. 5. 1992 and the fourth instalment by 18. 7. 1992. in case of default in deposit of any of the instalments, within stipulated period, the order staying the recovery proceedings shall stand automatically vacated and it will be open to the respondents to realise the entire amount as arrears of land revenue. " ( 5 ) THE petitioners did not comply with the undertaking given to the Court and did not deposit the instalments as directed by the order of this Court. It appears that after sometime fresh citation was issued against the petitioners and proceedings for recovering the amount were initiated. The petitioner No. 1 then filed C. M. Writ Petition No. 24451 of 1995 challenging the aforesaid citation. In this writ petition, an interim order was passed on 1. 9. 1995 staying the recovery proceedings. This writ petition was dismissed on 29. 2. 1996 and the order of the Court reads as follows : "by means of this petition, the petitioners have challenged the impugned recovery issued by the respondent No. 4 in respect of loan taken by the petitioners. The petitioners earlier filed a Writ Petition No. 15461 of 1991, which was dismissed by a Bench of this Court on 18. 11. 1991 with. some conditions. The second writ petition is not maintainable particularly since no mention about first writ petition has been made by the petitioners in this petition. The writ petition is dismissed. Interim order if any, is vacated. " ( 6 ) THE facts mentioned above show that the petitioners filed C. M. Writ Petition No. 15461 of 1991 challenging the citation issued against them and in the said writ petition, an undertaking was given that the entire amount shall be deposited in 4 equal instalments, which were payable by 18. 1. 1992, 18. 3. 1992, 18. 5. 1992 and 18. 7. 1992, and the proceedings for recovery of the amount were stayed.
1. 1992, 18. 3. 1992, 18. 5. 1992 and 18. 7. 1992, and the proceedings for recovery of the amount were stayed. After securing the stay order, the petitioner did not bother to comply with the undertaking given by them and did not deposit any amount as directed by this Court. It is not disputed from the side of the petitioners that till 18. 7. 1992, the last date fixed by this Court for depositing the last and final instalment, nothing was deposited by them. There was a total non-compliance of the orders passed by this Court, though the proceedings for recovery of the amount as arrears of land revenue had been stayed. When the authorities again initiated proceedings for recovery of the amount by issuing a fresh citation, the petitioners filed another writ petition, being C. M. Writ Petition No. 24451 of 1995. concealing the fact of filing of the earlier writ petition. In this latter writ petition, again, a stay order was obtained on 1. 9. 1995 staying the recovery proceedings. This petition was ultimately dismissed on 29. 2. 1996. The present writ petition is, thus, a third writ petition filed by the petitioners to forestall the recovery proceedings. ( 7 ) LEARNED counsel for the petitioners submitted that loan taken by them cannot be recovered as arrears of land revenue. The contention of learned counsel for respondent No. 3 (bank), however, is that Urban Cooperative Bank Ltd. , which gave the loan, being a Cooperative Bank, the provisions of Sections 95a and 92 (a) of U. P. Cooperative Societies Act are applicable, which permit the dues of the bank to be recovered as arrears of land revenue. ( 8 ) THE jurisdiction under Article 226 of the Constitution is an equitable jurisdiction. The conduct of the petitioners has not been fair and clean inasmuch as they secured stay of the recovery proceedings at the first instance by giving an undertaking which they did not comply. Then again, they secured a stay order by filing another writ petition concealing the fact of filing of the earlier writ petition. In our opinion, the conduct of the petitioners is such which disentitles them to get any relief from this Court in the present writ petition, which is a third writ petition. ( 9 ) THE writ petition is accordingly dismissed summarily at the admission stage. .