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Allahabad High Court · body

2006 DIGILAW 483 (ALL)

MOHD. ATIQ ULLAH v. STATE OF UTTAR PRADESH

2006-02-16

R.K.AGRAWAL, SAROJ BALA

body2006
JUDGMENT Hon’ble Mrs. Saroj Bala, J.—By means of the present writ petition, under Article 226 of the Constitution of India, the petitioner seeks a writ, order or direction in the nature of certiorari for quashing the impugned order dated 3.8.1995 (Annexure-XI to the writ petition) passed by the Additional District Magistrate (Nazul), Allahabad, respondent No. 3. The petitioner also seeks a writ, order or direction in the nature of mandamus commanding the respondents to convert the lease hold rights into free hold rights and to refund the excess amount of Rs. 2,94,225/-. 2. The back up facts leading to the writ petition are these : The U.P. State Government issued a Government Order dated 23.5.1992 (Annexure-I to the writ petition) announcing a policy for conversion of lease hold rights into free hold rights on depositing the assessed amount at the rates and manner prescribed therein. The petitioner moved an application on 16.1.1993 (Annexure-II to the writ petition) for conversion of the lease hold rights in Nazul land measuring 8001.41 sq. meter land situate at Bungalow No. 28/20, Sarojani Naidu Marg, Allahabad into free hold rights for the purpose of Group Housing Scheme. According to the petitioner there was no restriction for conversion of lease hold rights into free hold rights but the Nazul Department insisted for renewal of the lease. The petitioner applied for and the lease was renewed on 7.4.1994. The Government Order dated 23.5.1992 was amended by an order dated 2.12.1992 and the conversion charges were reduced to 75% of the circle rate for Group Housing Scheme. The Government Order dated 2.12.1992 (Annexure-III to the writ petition) provided that in case the amount assessed for conversion exceeded Rs. 30,00,000/- the lease holder would be permitted to deposit the same in four equal half yearly instalments with interest at the rate of 15% on the remaining amount. The permission to deposit the amount assessed was to be granted on the application of the leaseholder. According to the petitioner there was no condition for payment of stamp duty on the amount assessed for conversion of lease hold rights. The amount assessed for securing free hold rights being Rs. 67,25,380/- the’petitioner applied for and was permitted to deposit the said amount in four equal half yearly ‘ instalments with 15% interest vide letter dated 30.9.1994 (Annexure-V to the writ petition). The petitioner deposited the amount of Rs. The amount assessed for securing free hold rights being Rs. 67,25,380/- the’petitioner applied for and was permitted to deposit the said amount in four equal half yearly ‘ instalments with 15% interest vide letter dated 30.9.1994 (Annexure-V to the writ petition). The petitioner deposited the amount of Rs. 16,81,034/- on 29.3.1994, Rs.20,59,648/- on 20.10.1994 and Rs. 19,33,547/- on 27.5.1995 towards the first, second and third instalments through challans (Annexures-VI, VIA and VIB to the writ petition). The State Government vide Government Order dated 3.10.1994 (Annexure-VII to the writ petition) again amended and modified the earlier Government order dated 2.12.1992 and announced the rebate of 20% for conversion in case the amount was deposited in lump sum within 90 days of demand. The free hold certificate was to be a duly registered document and stamp duty was payable on the amount of conversion. The petitioner moved an application on 15.9.1994 seeking rebate of 20% as he had deposited Rs. 16,81,034/- and was ready and willing to pay the remaining amount in lump sum. The respondent No. 2 vide letter 7.10.1994 (Annexure-IX to the writ petition) communicated to the petitioner that he had no information about the government order and directed the petitioner to make payment of the remaining amount. The petitioner deposited the remaining amount of second and third instalments on 20.10.1994 and 27.5.1995. After publication of Government Order dated 3.10.1994 the petitioner made a request vide letter dated 5.10.1994 expressing his willingness to deposit the entire balance amount in accordance with the terms and conditions of the Government Order dated 3.10.1994. The respondents slept over the matter for quite some time and on 3.8.1995 sent the impugned demand notice (Annexure-XI to the writ petition) calling upon the petitioner to deposit the last instalment of Rs. 18,07,446/- with interest at the rate of 15%. The contention of the petitioner is that the impugned order refers to a Government Order dated 23.11.1994. According to the petitioner the order dated 23.11.1994 is not a Government order but clarification of Government Order dated 3.10.1994. The petitioner states that the total conversion charges payable being Rs. 67,25,380/- out of which after deduction of 20% rebate as per Government Order dated 3-10-1994, the petitioner is liable to deposit Rs. 53,80,004/-. The petitioner states that he having already deposited Rs. 56,74,229/- is entitled to the refund of excess amount. The petitioner states that the total conversion charges payable being Rs. 67,25,380/- out of which after deduction of 20% rebate as per Government Order dated 3-10-1994, the petitioner is liable to deposit Rs. 53,80,004/-. The petitioner states that he having already deposited Rs. 56,74,229/- is entitled to the refund of excess amount. The contention of the petitioner is that the demand notice dated 3.8.1995 is illegal, arbitrary and against the notification dated 3.10.1994. 3. On behalf of the respondents counter affidavit of Praveen Kumar, Sub-Divisional Magistrate, Sadar, Allahabad, has been filed stating that the petitioner submitted an application for renewal of lease on 24.5.1993 as per the directions of the judgment and order dated 8.1.1990 passed in Writ Petition No. 18555 of 1989. The respondents have admitted that the petitioner submitted an application on 16.1.1993 for conversion of lease hold rights into free hold rights under the terms and conditions of Government Orders dated 23.5.1992 and 2.12.1992. The contention of the respondents is that the stamp duty is charged in accordance with the nature of the document under which the rights are being transferred and in case free hold rights are granted to the petitioner he would be liable to pay the stamp duty on the free hold document which would be a registered deed. The contention of the respondents is that the petitioner is not entitled to 20% rebate. The contention of the respondents is that the amount of second and third instalment was deposited by the petitioner after coming into force of the Government Order dated 3.10.1994. The respondents have stated that the petitioner having applied for in pursuance of the Government Orders dated 23.5.1992 and 2.12.1992 and having deposited the amount in instalments, he is not entitled to get the benefit of Government Order dated 3.10.1994. The respondents have stated that the petitioner is liable to deposit the amount demanded by the impugned order dated 3.8.1995. 4. The petitioner has filed rejoinder affidavit reiterating the facts stated in the writ petition. According to the petitioner the payment of conversion charges in instalments relates to the period prior to the coming into force of Government Order dated 3.10.1994. The petitioner states that all the instalments were deposited by him within the period granted by the respondents and payment of due instalment was made prior to coming into force the Government Order dated 3.10.1994. The petitioner states that all the instalments were deposited by him within the period granted by the respondents and payment of due instalment was made prior to coming into force the Government Order dated 3.10.1994. The contention of the petitioner is that all the citizens have to be dealt with by the State without any discrimination. The lease holders who deposited the conversion charges in compliance of the earlier Government Order cannot be denied the concession and benefit sanctioned under the Government Order dated 3.10.1994. According to the petitioner he deposited the amount due as per the demand notices and the last deposit was made after notification-dated 3-10-1994. The petitioner states that all the lease holders are to be treated at equal footing in the matter of conversion of lease hold rights into free hold rights. The petitioner has contended that the lease holders who deposited the conversion charges under the earlier Government Order cannot be deprived of the concession admissible under the subsequent Government Order dated 3.10.1994. According to the petitioner the concession and benefit cannot be granted to the lease holders who had not deposited any amount under the earlier notification. The petitioner asserts that the impugned order is against the principles of natural justice and the principles enshrined under Chapter III of the Constitution of India relating to equality before law. The petitioner claims refund of the excess amount deposited by him. 5. We have heard Sri K.L. Grover, learned senior counsel on behalf of the petitioner and Sri C.S. Singh, learned Chief Standing Counsel on behalf of the State and respondents and have examined the record in minute details. 6. The learned counsel for the petitioner argued that the earlier Government Order dated 2.12.1992 having been amended and modified by subsequent Government Order dated 3.10.1994, the petitioner was entitled to remission and rebate admissible under the later Government Order dated 3.10.1994 in view of Section 63 of the Indian Contract Act. It was vehemently argued that the conversion of lease hold rights into free hold rights is to be done in accordance with the terms and conditions of the latest Government Order dated 3.10.1994. It was vehemently argued that the conversion of lease hold rights into free hold rights is to be done in accordance with the terms and conditions of the latest Government Order dated 3.10.1994. The submission raised on behalf of the petitioner is that the lease holders who had not deposited any amount under earlier Government Order dated 2.12.1992 have been granted 20% rebate on conversion charges in case of lump sum payment whereas the petitioner who had deposited the amount in pursuance of the earlier Government Order dated 2.12.1992 is being deprived of the concession and remission granted under the Government Order dated 3.10.1994. The learned counsel for the petitioner strenuously argued that all the lease holders are to be treated at par and the action of the authority concerned in not allowing the remission to the petitioner under the latest Government policy speaks of their discriminatory and arbitrary attitude. The learned counsel for the petitioner urged that there cannot be any discrimination to the detriment of the lease holders who had applied earlier than those applying for conversion subsequently. The learned counsel placing reliance on the decisions in the case of M/s. Hari Chand Madan Gopal & Co. and others v. State of Punjab, AIR 1973 SC 381 ; Mahabir Auto Stores v. Indian Oil Corporation and others, AIR 1990 SC 1031 and Krishnan Kakkanth v. Government of Kerala and others, AIR 1997 SC 128 , submitted that the decision of a public authority can be impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution of India and a particular group of persons cannot be treated with different standard or norms. The learned counsel urged that under Section 63 of the Indian Contract Act it is not necessary that the remission should be supported by consideration and the Government having granted remission to the extent of 20% on conversion charges, the public authority concerned cannot recover the assessed amount more than that calculated under Para (1) (ka) of Government Order dated 3.10.1994. 7. On the contrary, the learned counsel for the respondents argued that the petitioner applied for conversion of lease hold rights under Government Order dated 2.12.1992 and prayed for depositing the assessed amount in instalments with interest. The learned counsel submitted that the petitioner deposited the first instalment on the due date. 7. On the contrary, the learned counsel for the respondents argued that the petitioner applied for conversion of lease hold rights under Government Order dated 2.12.1992 and prayed for depositing the assessed amount in instalments with interest. The learned counsel submitted that the petitioner deposited the first instalment on the due date. The second instalment became due on 29.9.1994, i.e. prior to coming into force of the Government Order dated 3.10.1994 which the petitioner failed to pay on the due date and a demand notice was sent. The petitioner deposited the amount of second instalment on 20.10.1994. The learned counsel urged that the petitioner having not paid the amount in lump sum under the earlier Government Order dated 2.12.1992 and deposited the conversion charges in instalment she is not entitled to rebate of 20%. The contention of the learned counsel for the respondents was that the petitioner having not deposited the amount in lump sum, the Government Order dated 3.10.1994 is inapplicable and he is not entitled to any remission. The submission of the learned counsel for the respondents was that the petitioner opted for depositing the conversion amount in instalments and he deposited the said amount in instalments even after the coming into force of the Government Order dated 3.10.1994, the concession admissible to the lease holders depositing the entire amount at one time in lump sum is not admissible. 8. Indubitably the petitioner applied for conversion of lease hold rights into free hold rights in Nazul land measuring 8001.41 sq. meter in Bungalow No. 28/20, Sarojani Naidu Marg, Allahabad, under Government Order No. 1562/9-Aa-4-92-293 N/90 dated 23.5.1992 and Government Order No. 3632/9-Aa-4-92-392 N/90 dated 2.12.1992. The Government Order dated 23.5.1992 prescribed rates and basis for calculation of amount payable for conversion of lease hold rights of Nazul land into free hold rights. There was no stipulation in the said Government Order as to the mode and manner of depositing the conversion amount. Consequently, the Government Order 23.5.1992 was amended by Government Order No. 3632/9-Aa-4-92-392 N/90 dated 2.12.1992. The rates prescribed for conversion and basis of assessment of market value for conversion was modified by the said Government Order to the extent that the circle rate prevailing on 30.11.1991 would be the determining factor for the assessment of market value. Consequently, the Government Order 23.5.1992 was amended by Government Order No. 3632/9-Aa-4-92-392 N/90 dated 2.12.1992. The rates prescribed for conversion and basis of assessment of market value for conversion was modified by the said Government Order to the extent that the circle rate prevailing on 30.11.1991 would be the determining factor for the assessment of market value. Para (3) of the Government Order dated 2.12.1992 provided that in case the amount for conversion charges payable by the lease holder was more than Rs. 30,00,000/- and lease holder unable to make one time payment would make an application to deposit the said amount in instalment and on making such an application permission to deposit in four equal half yearly instalments with interest at the rate of 15% would be granted. Admittedly, the petitioner opted for payment of assessed market value for conversion in instalments as the total amount payable was Rs. 67,25,280/-. The prayer of the petitioner for payment in instalments was granted by an order dated 8.3.1994 and the petitioner deposited the amount of first instalment of Rs. 16,81,385/- on the due date, i.e., 29.3.1994. The amount of second instalment of Rs. 20,59,648/- was to be paid on 29.9.1994. The said amount was not deposited by the petitioner on the due date, i.e. 29.9.1994. The amount payable under the second instalment became due prior to coming into force of Government Order No. 2093/9-Aa-4-94-293 N/90 dated 3.10.1994. The said Government Order dated 3.10.1994 provided for rebate of 20% on the amount assessed for conversion of lease hold rights in case of lump sum one time payment of the entire assessed amount. It was further provided that the lease holders unable to deposit the assessed amount in lump sum will deposit initially 25% of the assessed value and the remaining amount in six half yearly instalments with interest at the rate of 15%.The earlier Government Order dated 2.12.1992 also provided for depositing the assessed market value for conversion of lease hold rights in lump sum and in case the amount assessed was more than Rs. 30,00,000/- the lease holder with the permission of the authority concerned had the option to deposit in four equal half yearly instalments with interest at the rate-of 15%. The conversion of lease hold rights into free hold rights from its existing character of Nazul land was subject to petitioner’s payment of Rs. 30,00,000/- the lease holder with the permission of the authority concerned had the option to deposit in four equal half yearly instalments with interest at the rate-of 15%. The conversion of lease hold rights into free hold rights from its existing character of Nazul land was subject to petitioner’s payment of Rs. 67,25,367/- which the petitioner opted to deposit in instalments. The contention of the petitioner that payment of instalments due on the date of Government Order dated 3-10-1994 was made prior to coming into force of the said Government Order is fallacious. The petitioner deposited the amount of second instalment on 20.10.1994 which was due for payment on 29.9.1994. The petitioner having selected the mode for payment in four equal half yearly instalments with interest at the rate of 15% and he having made payment of the assessed amount in instalments with interest, he cannot claim and be awarded remission of 20% under the Government Order dated 3.10.1994. Even after coming into force of the Government Order dated 3.10.1994 the amount of two instalments was deposited by the petitioner on 20.10.1994 and 17.5.1995.The lease holders applying for conversion under Government Order dated 2.12.1992 as well as Government Order dated 3.10.1994 had to pay 15% interest on instalment amount. The petitioner having not deposited the market value assessed for conversion of lease hold rights in lump sum, he is not entitled to get 20% rebate on the amount payable for conversion of lease hold rights into free hold rights. 9. The Government Order dated 3.10.1994 does not waive any part of the conversion money. The concession of 20% is granted to the lease holders depositing entire assessed amount for free hold rights in lump sum. The lease holders depositing the said amount in instalments have to pay interest at the rate of 15%. The provisions of lease holders depositing the amount in instalments are almost analogous in both the Government Orders dated 2.12.1992 and 3.10.1994. The Government Order dated 3.10.1994 does not provide that the lease holders who deposited the conversion money in instalments shall be entitled to 20% rebate. The Government vide clarification letter dated 23.2.1994 (Annexure-lV to the writ petition) has specifically provided that the lease holders depositing the assessed money for free hold rights in instalments under the earlier Government Order dated 2.12.1992 will not be entitled to 20% rebate. The Government vide clarification letter dated 23.2.1994 (Annexure-lV to the writ petition) has specifically provided that the lease holders depositing the assessed money for free hold rights in instalments under the earlier Government Order dated 2.12.1992 will not be entitled to 20% rebate. The Governments decision to grant rebate of 20% to the lease holders making one time payment does not amount to remittance of any part of the money to be paid by the petitioner or other lease holders placed equally. 10. The submission of the learned counsel for the petitioner that a lease holder depositing the amount in instalments under the earlier Government Order dated 2.12.1992 cannot be discriminated and deprived of the concession admissible under the subsequent Government Order dated 3.10.1994 is untenable as at no point of time the petitioner deposited the assessed amount in lump sum. On the date of coming into force of the Government Order dated 3.10.1994 the entire amount assessed and payable for conversion of lease hold rights not being due and the petitioner having chosen to pay the assessed amount in instalments though there was a provision under the earlier Government Order dated 2.12.1992 for lump sum payment, the petitioner is not entitle to seek 20% rebate. The condition precedent for securing 20% rebate being one time deposit of the total amount assessed for conversion and the petitioner having not made lump sum payment of the said amount he was not entitled to the rebate of 20% on the assessed market value. 11. The provisions of Section 63 of the Contract Act contemplate that the promisee may dispense with or remit wholly or in part the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. The essential element of satisfaction is that the promisee may accept unequivocally. If a promisor tenders one time amount in full satisfaction to the promisee but the promisee does not accept it or accepts in part performance, such satisfaction will not fall within the ambit of Section 63 of the Contract Act. The essential element of satisfaction is that the promisee may accept unequivocally. If a promisor tenders one time amount in full satisfaction to the promisee but the promisee does not accept it or accepts in part performance, such satisfaction will not fall within the ambit of Section 63 of the Contract Act. In the instant case the petitioner opted for payment of conversion charges in instalments and paid the amount of three instalments, the payment of fourth instalment remaining due, the respondent declined to grant rebate of 20% for the reason that the amount assessed for conversion was not paid in lump sum. For the above reason the respondents having not accepted the offer of the petitioner for payment of remaining amount in lump sum. the petitioner is not entitled to get remission under the provisions of Section 63 of the Contract Act. 12. The submission of the learned counsel for the petitioner that the impugned order is visited with the vires of inequality and discrimination has no legs to stand. 13. In the case of M/s Hari Chand Madan Gopal & Co. (supra) the Government had decided to recover only 40% of the total liability under the contract. It was held that the decision amounts to remitting a part of the debt and, therefore, the Government cannot seek to recover more than 40% of the liability. In the instant case, the Government has granted remission of 20% to the lease holders depositing the assessed conversion money in lump sum. 14. In the case of Mahabir Auto Stores and others (supra) the firm (petitioner) was carrying a business of sale and distribution of lubricants for 18 years and there was abrupt stoppage of supply of lubricants to firm by Indian Oil Corporation due to change of the policy without notice or intimation. On the face of these facts it was held that it is necessary that relevant persons concerned or to be affected, should be taken into confidence. Such transaction should continue as an administrative decision with the organ of the State. On the face of these facts it was held that it is necessary that relevant persons concerned or to be affected, should be taken into confidence. Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory but in a situation of transaction between the parties for nearly two decades, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted to be followed by an organ of the State and that process must be conscious and all those affected should be taken into confidence. It may not be necessary to give reasons but, in the field of this nature fairness must be there to the parties concerned, and having regard to the large number or the long period and the nature of the dealings between the parties, the firm should have been taken into confidence. Equality and fairness at least demands this much from an instrumentality of the State dealing with a right of the State not to treat the contract as subsisting. 15. In the case of Krishnan Kakkanth (supra) the Government of Kerala issued Circular dated 19.2.1995 directing that for distribution of pumpsets to farmers under comprehensive coconut development programme and other similar schemes of the agricultural department and in order to stream line the implementation of the schemes specifying specific roles and responsibilities for different agencies involved, M/s. Kerala Agro Industries Corporation and Regional Agro Industries Development Corporation would arrange supply of pumpsets in the northern districts of Kerala. It was held that the Circular dated 19.5.1995 does not infringe the fundamental right of the dealers in pumpsefsnor is it violative of Article 14. The farmer or agriculturist who has chosen to receive subsidies of financial assistance under the schemes of Government has an obligation to accept the terms and conditions for such assistance. One of such conditions is that in the northern region of the State, pumpset for which financial assistance has been given is to be purchased from the approved dealers of the Government. The private dealer cannot insist that the Government should also enter into contract with any such private dealer to make it an approved dealer. One of such conditions is that in the northern region of the State, pumpset for which financial assistance has been given is to be purchased from the approved dealers of the Government. The private dealer cannot insist that the Government should also enter into contract with any such private dealer to make it an approved dealer. Since the Government has every right to select dealers of its choice for delivery of pumpsets at the price agreed upon and to render after-sales to the purchasers of pumpset covered by its financial assistance scheme, it is not open to challenge such selection of dealers on the score that such selection amounts to unreasonable restriction imposed on the dealers of the State to carry on trading activities in pumpsets. It is nobody’s case that all the farmers and agriculturists have been compulsorily covered under such schemes. On the contrary, it is open to any farmer or agriculturist not to volunteer for taking such assistance. No restriction has been imposed on the trading activity of dealers in pumpsets in the State of Kerala including northern region comprising eight districts. Even in such area, a dealer is free to carry on his business. Such dealer, even in the absence of the said circular, cannot claim as a matter of fundamental right guaranteed under Art. 19 (1) (g) that a farmer or agriculturist must enter into a business deal with such trader in the matter of purchase of pumpsets. Similarly, such trader also cannot claim that the Government should also accept him as an approved dealer of the Government. The trading activities in dealership of pumpsets has not been stopped or even controlled or regulated generally. The dealer can deal with purchasers of pumpsets without any control imposed on it to carry on such business. The obligation to purchase from approved dealer has been fastened only to such farmer or agriculturist who has volunteered to accept financial assistance under the scheme on various terms and conditions. The direction contained in the circular cannot be said to be vitiated being arbitrary, capricious or unreasonable. 16. The decisions relied on behalf of petitioner are remarkably distinguishable. The obligation to purchase from approved dealer has been fastened only to such farmer or agriculturist who has volunteered to accept financial assistance under the scheme on various terms and conditions. The direction contained in the circular cannot be said to be vitiated being arbitrary, capricious or unreasonable. 16. The decisions relied on behalf of petitioner are remarkably distinguishable. The rebate of 20% under the Government order dated 3.10.1994 being admissible to lease holders depositing the total amount for conversion in lump sum and the petitioner having not made one time payment, the impugned order dated 3.8.1995 (Annexure-XI to the writ petition) cannot be said to be arbitrary, irrational, unreasonable and discriminatory. 17. In view of what has been discussed above, we do not find any reason to interfere with the impugned order dated 3.8.1995 (Annexure-XI to the writ petition). Consequently, the writ petition fails and is dismissed without any order as to costs. The stay order dated 11.10.1995 passed by this Court stands vacated. Petition Dismissed. ———