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Rajasthan High Court · body

2001 DIGILAW 1695 (RAJ)

Mohan Kalra v. J. D. A.

2001-10-12

S.K.KESHOTE

body2001
Honble KESHOTE, J.–This petition, on the face of it, is not only a misconceived, misplaced, frivolous and ill-advised but also an attempt on the part of the petitioner to abuse the process of the court. (2). This is a case where it comes out from its facts as to how the unscrupulous litigants are frustrating the very purpose and object of sale of the plots by the Jaipur Development Authority. By this way they are creating hurdles in development work which the Jaipur Development Authority wants to undertake by receiving the money by way of sale of plots in auction. This petition is an attempt on the part of the petitioner to act contrary to the public interest or to make an attempt to deprive the public of the Jaipur City to get the amenities which are being provided by the J.D.A. (3). The facts of the case are that in a daily newspaper ``Rajasthan Patrika dated 5.8.1989 the Jaipur Development Authority issued a notice for auction of the plots both residential and commercial in its different schemes including the plot in question (Plot No. A-10, Govind Marg, Janta Colony, Jaipur). This is a residential plot measuring 420 square meters. The auction of this plot was fixed on 7th of August, 1989 at 10.30 A.M. In response to that notice of auction, the petitioner raised a bid and his bid of Rs. 2050/- per square meter was being the highest, it was knock down. As per the terms and conditions of the auction on which there is not any dispute the petitioner, on finalization of the auction in his favour of the plot in question, he was required to deposit on the spot 5% of the amount of sale and 20% of the sale amount within next twentyfour hours. The rest seventyfive percent of the amount was to be deposited by the petitioner within thirty days of the notice. It is not in dispute that the petitioner has not deposited 5% of the required amount of auction on the spot and 20% of the amount of auction within next twentyfour hours. The total cost of the plot which was finalized in favour of the petitioner in auction comes to Rs. 8,61,000/-; five percent of which is Rs. 43050/- and 20% of the same comes to Rs. 1,72,200/-. (4). The total cost of the plot which was finalized in favour of the petitioner in auction comes to Rs. 8,61,000/-; five percent of which is Rs. 43050/- and 20% of the same comes to Rs. 1,72,200/-. (4). The amount which had to be deposited by the petitioner may be a pity amount for him but it is a handsome amount for the Jaipur Development Authority. (5). In stead of depositing this amount of costs of the plot, the petitioner sent a notice to the Chief Revenue Officer of the Jaipur Development Authority on 9th of August, 1989 through the Advocate. In this notice the explanation furnished for not depositing this amount is that on 7th of August, 1989 at the spot of auction one Smt. Tara Devi wife of Shri Ladu Ram, Resident of Laxmi Narayan, Near Dharamshala Barafkhana Ka Rasta, Jaipur informed to the petitioner that she has got a stay for maintaining status quo regarding the plot in dispute. Due to this stay order, the petitioner in stead of depositing this amount, gave a telegram to the Chief Revenue Officer, Jaipur Development Authority on 7th of August, 1989 itself. He further stated that he is ready to deposit the amount on the clarification of the position. (6). In para No. 5 of this Notice it is stated that the petitioner is ready to deposit the amount as per the terms and conditions but due to the stay order in favour of Smt. Tara Devi the position is not clear regarding the plot in dispute. It is prayed that the position may be clarified to the petitioner within a period of two days so that he may be able to deposit the amount. (7). After this notice the Jaipur Development Authority has taken a decision to cancel this auction of the plot and further ordered for forfeiture of Rs. 1000/- deposited by the petitioner as earnest money. (8). Against this order, the petitioner filed an appeal before the Jaipur Development Authority Appellate Tribunal, Jaipur. As per his own case the petitioner filed the appeal on 30.08.1989. The appeal was admitted on 31.8.1989 and the notices were issued to the respondents of appeal on 9th of September, 1989. The petitioner applied for preponding the date in the appeal as the Jaipur Development Authority fixed the auction of the plot in dispute on 11th of September, 1989 at 10.30 AM. The appeal was admitted on 31.8.1989 and the notices were issued to the respondents of appeal on 9th of September, 1989. The petitioner applied for preponding the date in the appeal as the Jaipur Development Authority fixed the auction of the plot in dispute on 11th of September, 1989 at 10.30 AM. Accordingly, the Jaipur Development Authority Appellate Tribunal, Jaipur has considered the application filed by the petitioner for stay and vide its order dated 8.09.1989 rejected the application of the petitioner. Hence this writ petition. (9). In this petition the petitioner has prayed for quashing and setting aside the order dated 25.8.1989 (Annexure-6) and the order of the Tribunal dated 8.9.1989. The further prayer is made for a direction to the Jaipur Development Authority not to auction the plot No.A-10, Govind Marg, Janta Colony, Jaipur on 11.09.1989 at 10.30 AM. Further direction prayed for is that the Jaipur Development Authority may be directed to clarify the exact position of the plot and to accept the amount to be deposited with penalty and interest. (10). This petition has come up for preliminary hearing in the Court on 11.09.1989. The matter was admitted. On stay application this Court has ordered that till further orders the auction of the plot No. A-10 may not be confirmed. This auction of the plot was made or proposed to be made on 11th of September, 1989 and though we are in the year 2001, none of the counsel for the parties has brought to the notice of the court as to what happened ultimately in the matter on the date aforestated. (11). The reply to the writ petition has been filed by the Jaipur Development Authority on 6th of July, 2001 and very conveniently the Jaipur Development Authority has not given out the details of auction dated 11.9.1989. This writ petition, in fact, is a composite writ petition wherein the petitioner made three-fold grievances and three-fold prayers. (12). The first prayer is for quashing and setting aside the order dated 25.8.1989 (Annexure-6). This prayer technically may not be available to the petitioner but I will decide the matter on merits regarding the validity of this order to close the chapter finally, as this order is not only appealable but the appeal has been filed and same may be pending as on day. (13). This prayer technically may not be available to the petitioner but I will decide the matter on merits regarding the validity of this order to close the chapter finally, as this order is not only appealable but the appeal has been filed and same may be pending as on day. (13). The second prayer made for quashing and setting aside the order of the Tribunal passed on 8th of September, 1989. This order is an interlocutory order under which the prayer made by the petitioner for stay of the auction of the plot in dispute has been declined. (14). The third prayer has been made for a direction to the respondents to clarify the exact position of the plot and to accept the remaining amount to be deposited with the penalty and interest. (15). It is no more res integra that in a case where against the order impugned in the writ petition if appeal or revision is provided under the statute, that remedy has to be availed of first. In a better way, when alternative remedy is available this Court has to discourage those litigants who directly come to this Court circumventing that remedy available to them. In such matters the court should ask the litigant first to avail the alternative efficacious remedy available. But in this case not only this remedy is available but the petitioner has availed of the same and this petition against the order dated 25.8.1989 is not maintainable. If any reference is required on this point the reference may have to the decision of the Apex Court in the case of Bombay Metropolitan Region Development Authority vs. Gokak Patel Volkart Limited and Others (1), wherein their Lordship of the Supreme Court held as under:- ``We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ-petitioners appeal before the Statutory Authority was pending. In that view of the matter this writ petition should not have been entertained. (16). This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ-petitioners appeal before the Statutory Authority was pending. In that view of the matter this writ petition should not have been entertained. (16). So far the second relief claimed regarding quashing and setting aside of the order of the Tribunal passed on the application filed by the petitioner for stay, it is suffice to say that it is an interlocutory order and in rarest of the rare case this Court under Article 227 of the Constitution of India interferes therewith. An interlocutory order or stay cannot be claimed as a rule or right. In a given case the Court after considering the facts of the matter may decline to grant interim relief or stay. It is the discretion of the Authority. However, it has to be exercised judiciously. (17). In the case in hand after going through the order of the Tribunal I am satisfied that it has not committed any illegality what to say any material irregularity in exercise of its jurisdiction to decline to grant interim relief or stay in favour of the petitioner. (18). In the facts of this case the learned Tribunal has not committed any mistake or error in holding that the petitioner has no prima facie case. When the petitioner was not found to have any prima facie case no question does arise to exercise its discretion to grant any interim relief as prayed for. It is a different matter that the petitioner was not satisfied with the impugned order and this petition is filed but there is no error or illegality or any jurisdictional error in the order of the Tribunal and the prayer made by the petitioner in this petition for quashing and setting aside the same is wholly untenable. (19). In the next prayer made by the petitioner for direction to the respondent Jaipur Development Authority to clear the position and to accept the balance money with penalty and interest, it is suffice to say that this also cannot be granted. A copy of the stay order granted by the Civil Court on the application filed by Smt. Tara Devi is there at page No. 26 as Annexure-23 of this petition. A copy of the stay order granted by the Civil Court on the application filed by Smt. Tara Devi is there at page No. 26 as Annexure-23 of this petition. This interim relief granted by the Civil Court was to remain in force till 5th of October, 1988. It is not the case of the petitioner that this interim relief or stay granted by the Munsif Magistrate (Bast) Jaipur City, Jaipur in the suit filed by Tara Devi was extended after 5th of October, 1988. So whatever difficulty or impediment was there in the way of the petitioner in depositing the amount in pursuance of the auction was not there on or after 6th of October, 1988. In case the petitioner would have really been interested or willing to purchase this plot and to show his bona fide after 5th of October, 1988 there was no occasion for him to seek any instruction or clarification from the Jaipur Development Authority. In stated of filing the appeal in the Tribunal, firstly he should have sent 25% of the auction amount by Demand Draft to the Jaipur Development Authority immediately after 5th of October, 1988. This has not been done. This shows that this petition is nothing but an attempt on the part of the petitioner to keep continue a dispute in the matter by this methodology adopted. (20). In the proceedings under Article 226 or 227 of the Constitution of India the conduct of the litigant is very relevant and it also plays an important role. It is an extra ordinary equitable jurisdiction which this Court exercise under Article 226 and 227 of the Constitution of India and where a litigant does not come with clean hands or the Court finds that he is not a bona fide person or where his conduct is dubious or adopted tactful means, the court may decline to go on merits of the matter and may reject the matter summarily. In the facts of this case it is clear that the petitioner has not come up with clean hands and the bonafides before the Court. His intention is otherwise then what it is tried to be projected in this petition. (21). In the facts of this case it is clear that the petitioner has not come up with clean hands and the bonafides before the Court. His intention is otherwise then what it is tried to be projected in this petition. (21). Prima facie, from the facts of the case, it appears that this petition has been filed by the petitioner with some ulterior motive or the possibility of filing of this petition by the petitioner at instance of Smt. Tara Devi cannot be over ruled. The petitioner, as per his case, was informed by Smt. Tara Devi on 7th of August, 1989 in respect of the stay order obtained by her regarding this plot from the Civil Court. So he came to know about the stay order on the spot. At what time he came to know of the stay order it is not mentioned. The petitioner has not made it clear and it appears to be his deliberate and wilful act. There is all possibility and it can also be reasonably inferred as nothing specifically stated by the petitioner that Smt. Tara Devi would have informed to him or brought to the notice of the petitioner this fact of stay she got from the Civil Court regarding this plot before the auction of the plot started or in the mid of the auction. When the petitioner came to know about the fact of this stay, I failed to see any jurisdiction or ground in his steps to participate in the auction. He should have made it clear to the auctioning authority that in view of the stay order granted by the Civil Court the auction may be postponed or he is not participating any more. Even if it is taken that he came to know about this stay order after the auction was completed, it would have been a bonafide act on the part of the petitioner to have informed this fact to the Officer incharge conducting the auction and he would have prayed for refunding him the amount of earnest money. That has also not been done by the petitioner. That has also not been done by the petitioner. It is not the case of the petitioner, at the cost of repetition it is to be stated, that he did inform this fact regarding stay obtained by Smt. Tara Devi regarding the plot in question from the Civil Court, to the Officer Incharge of the auction of the plot in question. The notice had been given by the petitioner after two days of this auction. If the matter is considered in this factual back ground, it may be a case where all what did by the petitioner has been done at the behest of Smt. Tara Devi. (22). Be that as it may, otherwise also the petitioner has no case on merits so far as it relates to challenge to the order of the Jaipur Development Authority passed on 25.8.1989. (23). The petitioner is bound with the terms and conditions subject to which this auction has been held. The petitioner came to know about this stay order which Smt. Tara Devi obtained in a Civil Suit on the very day of the auction, and still he has participated in the auction. Having known of this fact he has not withdrawn himself from the auction proceedings, which goes to show that he was willing and ready to go for this plot despite of the pendency of litigation in respect thereof. (24). As per the terms and conditions of the auction which have been notified in the auction notice as well as the terms and conditions of the auction given to the petitioner on the spot, the petitioner has to comply with the same. It is a mandatory condition and in case of non compliance thereof the Jaipur Development Authority was perfectly legal and justified to cancel the auction of the plot and forfeit the earnest money. The petitioner, as per the condition, has no deposit five percent of the final bid on the spot and twenty percent thereof within next twenty-four hours. Undisputedly this condition was not fulfilled. When the petitioner has not fulfilled his obligation which has to be discharged as per the terms and conditions subject to which the plot was put to auction, he has no locus standi or accepted to be an aggrieved person in the matter to challenge the order passed by the Jaipur Development Authority to cancel the auction and forfeit the earnest money. The explanation furnished for non deposit of amount is of no substance or value. Despite of knowing the fact of stay etc. the petitioner has not only participated in the auction of plot but has given the highest bid and he had to comply with the conditions subject to which this auction was held and for non-compliance thereof only action to be taken by the Jaipur Development Authority was to cancel this auction and forfeit the earnest money. (25). In the facts of this case the Jaipur Development Authority has not committed any illegality or material irregularity in passing the order dated 25.8.1989. It is unfortunate that the petitioner by this litigation has kept deferred the auction of the plot in dispute for more than eleven years. The action of the Jaipur Development Authority of cancelling the auction proceedings and forfeiting the earnest money is just, reasonable and legal. (26). The third grievance made by the petitioner needs not to be considered and gone into. (27). As a result of the foregoing discussion, this writ petition fails and the same is dismissed with costs, which is quantified to Rs. 2200/- (Rs. two thousand two hundred only). The amount of cost shall be paid by the petitioner to the Jaipur Development Authority.