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Rajasthan High Court · body

2007 DIGILAW 640 (RAJ)

Kumbh Singh v. U. I. T. Bikaner

2007-03-26

GOPAL KRISHAN VYAS

body2007
Gopal Krishan Vyas, J.—By way of filing this writ petition, the petition is challenging the order dt. 30.04.2004 (Annex.-2) and further prayed that the respondent U.I.T. may be directed not to make demand of the balance amount till high tension electricity line is not shifted. Further it is prayed that respondents may be directed to get removed the high tension electricity line over the plot in question and also prayed that the respondent shall not charge any interest or penalty from the petitioner upon the balance amount. 2. The facts averred in the writ petition are that the respondent U.I.T. published an auction notice in daily news paper Rajasthan Partika on 12.01.2004 auction of residential as well as commercial plots in various schemes framed by the U.I.T. On 12.01.2004, the petitioner alongwith the other participants went on the site to take participation in the auction proceedings, At that time, the respondent U.I.T. authorities told that these are the plots which are going to be auctioned. At the time of the inspection of the plots, it came to the knowledge of the petitioners that high tension electricity line was going over-head and electric poles were also standing in the plots, therefore, the participants refused to offer their bids because due to high tension electricity line over the plots they cannot use the plots in any manner.At that time, during th auction proceedings, it was assured by the U.I.T that after removing the high tension electricity line fresh auction notice will be issued. 3. On 22.01.2004, the respondents again held auction of the plots in the above scheme and the petitioner and other participants went to the site for participating in the auction proceedings. Again the participants saw that the high tension electricity line was not removed. Upon enquiry from the U.I.T. Authorities it was told that due to financial crisis the electricity over-head line has not been removed; but, now the same would be removed as soon as auction proceedings is completed. It was also verbally assured that the participants or successful bidders can deposit ¼ th of the amount and balance may be paid as soon as the high-tension electricity line will be removed. 4. It was also verbally assured that the participants or successful bidders can deposit ¼ th of the amount and balance may be paid as soon as the high-tension electricity line will be removed. 4. It is averred in the writ petition that upon the aforesaid assurance given by the U.I.T. authorities the petitioner and other participants offered their bids in the auction proceedings and for plot No. 15 the highest bid was offered by the petitioner for Rs. 14,69,736/- , being successful bidder. Before signing the auction bid, a condition was inserted in the bid-sheet that balance 75% amount of the bid money will be deposited after removal of the high tension electricity line over the plot. Thereafter, the petitioner deposited 25 per cent amount of the auction money, i.e. 3,68,000/- on 30.01.2004. 5. It is contended by learned counsel for the petitioner that the respondents did not take steps for temoval of the high tension electricity line existing over the plots and issue notice on 13.02.2004 raising the demand to the petitioner as well as other successful bidders for depositing the rest ¾th amount of the bid-money stipulating that otherwise interest will be charged and penalty was also said to be imposed. It was further stipulated that in default, the earnest money was to be ordered to be forfeited and allotment itself could be cancelled. The said notice is on the record as Annex.-1 dt. 13.02.2004. 6. Upon the notice, Annex.-1, the petitioner contacted the respondents and requested the authorities that as per the condition/assurance given at the time of auction proceedings, the remaining was to be deposited after removal of the high tension electricity line over the plots and, therefore, without removing the said electricity line the petitioner cannot be compelled to deposit the ¾ th remaining amount of the bid-money. The respondents told the petitioner that the U.I.T. has already deposited the charges for removal of the high tension electritcity line with the Electricity Department and the proceedings are going on, therefore, the balance amount of the bid-money may be deposited as per the notice. 7. It is contended by learned counsel for the petitioner that due to reason that high tension electricity line was not removed the remaining ¾ th amount was not deposited and instead of making efforts for removal of the said line, vide Annex.-2 dt. 7. It is contended by learned counsel for the petitioner that due to reason that high tension electricity line was not removed the remaining ¾ th amount was not deposited and instead of making efforts for removal of the said line, vide Annex.-2 dt. 30.04.2004, allotment made in favour of the petitioner was cancelled under proviso to Rule 17 (5)(1) of the Urban Improvement Trust (Disposal of Urban Land) Rules, 1974, which is under challenge. It is contended that admittedly over the auctioned plot No. 15 there was high tension electricity line and it was to be removed before giving possession by the U.I.T., therefore, the amount was not deposited within 30 days from the date of issuance of notice Annex. 1 dt. 13.12.2004. It is submitted that the reason for not depositing the balance ¾ th amount was based on sound ground and an assurance was also given by the U.I.T. at the time of the auction proceedings that they will make efforts for removal of the high tension electricity line from over the plots which was not complied with the U.I.T., therefore, the amount was not deposited within 30 days. It is contended by the learned counsel that there was neither any lack or error on the part of the petitioner but the U.I.T. has taken harsher action without there being any warrant for it. 8. It is argued on behalf of the petitioner that the action of the respondents is highly unreasonable and arbitrary because on the date of the auction the high tension electricity line was in existence over the plots auctioned and the U.I.T. itself was under legitimate compulsion to have the line removed before giving possession, therefore, the cancellation of the allotment is illegal and against the principles of natural justice. It is contended by the learned counsel that obviously if the bidder is depositing huge amount in pursuance of allotment of the plot, then he is entitled to be handed possession of the plot free from all encumbrances over it. It is submitted that the respondents admitted to receive ¼th amount of the bid money at the time of allotment and agreed to receive the remaining ¾th amount on the removal of the high tension electricity line. It is further contended that in their reply the U.I.T. Authorities have placed on record Annex.-R/2 dt. 07.02.2005 by which the Asstt. It is submitted that the respondents admitted to receive ¼th amount of the bid money at the time of allotment and agreed to receive the remaining ¾th amount on the removal of the high tension electricity line. It is further contended that in their reply the U.I.T. Authorities have placed on record Annex.-R/2 dt. 07.02.2005 by which the Asstt. Engineer (HTM), Jodhpur Vidyut Vitaran Nigam Ltd. Bikaner sent a communication to the U.I.T. Bikaner that upon the depositing of the amount for removing the tension electricity line from over the disputed plots the same has been removed on 25.09.2004. It is vehemently argued by learned counsel for the petitioner that admittedly the high tension electricity line has been removed after the date of cancellation of the allotment, therefore, the petitioner was within his right for not depositing the balance ¾ th amount of the bid-money before that and, therefore, the cancellation order Annex.-2 is totally unwarranted and illegal being arbitrary exercise of jurisdiction. On the other hand, learned counsel for the respondent U.I.T. vehemently contended that as per terms and conditions of the auction notice Annex.R/1 the petitioner was under obligation to deposit ¾ th balance amount within 30 day of the issue of demand notice and he has failed to do so, therefore, the order of allotment was cancelled. It is also stated that the U.I.T. made all efforts to remove the high tension electricity line from over the plots and for the same on 05.02.2004 an amount of Rs. 4,91,986/- was deposited with the Electricity Department and, in pursuance of that, high tension electricity line was removed on 25.09.2004, therefore, there was no occasion for the petitioner to retain the amount and not deposit the same within 30 days. It is contended that the inaction of the petitioner is in violation of the terms and conditions mentioned in Annex.-R/1, auction notice. Hence, the cancellation was in accordance with the terms and conditions agreed to. He prays that the writ petition deserves to be dismissed. 9. I have perused the entire record of the case. Admittedly for plot No. 15, situated opposite Urmul Dairy, Bikaner, the highest bid of the petitioner was accepted and the petitioner deposited ¼th of the bid-money with the U.I.T. on the date of the auction. He prays that the writ petition deserves to be dismissed. 9. I have perused the entire record of the case. Admittedly for plot No. 15, situated opposite Urmul Dairy, Bikaner, the highest bid of the petitioner was accepted and the petitioner deposited ¼th of the bid-money with the U.I.T. on the date of the auction. Admittedly, upon Annex.-1, page 2, there is note endorsed by the U.I.T. that work of high tension line is in progress, the amount of demand notice be deposited within the period allowed. This endorsement itself with the fact on record vide Annex.-R/2 is sufficient to establish the petitioner’s averments in the writ petition. The endorsement itself is evidence of the assurance given by the U.I.T. for taking steps for removal of the high tension electricity line from over the plots auctioned. It is thus obvious that the allotted land was encumbered with a State charge on it and, therefore, the U.I.T. could not have proceeded to give possession of the plots without the removal of the high tension electricity line from over the plots auctioned. 10.Legitimately the possession of the plot in question was to be given by the U.I.T. after removing the hurdles because huge amount was charged as costs of the plot. Admittedly, as per the case of the respondents, the high tension electricity line was removed on 25.09.2004 and the amount was deposited for removal of the line on 05.02.2004 with the Electricity Department, therefore, on the date of cancellation of the allotment there was admittedly high tension electricity line in existence over the plot and it was not removed by the Authorities in contravention of their assurance. Thus till 25.09.2004 the plot was not free from all obstacles for giving possession, more particularly, it was dangerous for the public at large to hand over possession of the land for residential or commercial purposes with a high tension electricity line running over the same. The contention of the respondents that as per terms and conditions the plot in question was to be given on the conditions which existed at the time of the auction is neither tenable nor legitimate in the facts and circumstances of the case. An instrumentality of the welfare State is under obligation to act fairly with precaution and security of the people. An instrumentality of the welfare State is under obligation to act fairly with precaution and security of the people. It is evident that respondents acted in sheer arbitrariness while proceeding to cancel the allotment of the plot made in favour of the petitioner. 11.At the time of issuing notice, this Court passed order on 30.06.2004 as follows : “In view of the above respondent No. 1 is directed to deposit the balance auctioned amount without interest, if offered by the petitioner within a period of 15 days from today. In case, the amount is paid by the petitioner, the plot in question shall not be auctioned. This order shall be subject to any order passed by this Court in the writ petition.” 12. In pursuance of the aforequoted order, the petitioner deposited the balance amount without interest. 13.With regard to the question of interest, it is obvious that till 13.03.2004, as per terms and conditions itself, there was no liability of interest upon the petitioner. Admittedly, the high tension electricity line was removed on 25.09.2004 and, prior to that, in pursance of the order passed by this Court, the petitioner deposited rest of the bid money. Evidently, it is clear that the reason for delayed payment cannot be held to be attributable to the petitioner, therefore, the U.I.T. cannot arbitrarily charge interest from the petitioner. 14.In the result, this writ petition succeeds and is hereby allowed. Order impugned dt. 30.04.2004 cancelling the allotment made in favour of the petitioner is quashed and set-aside. The U.I.T. is held not entitled to any interest upon the ¾ th amount deposited by the petitioner in pursuance of the order passed by this Court. Possession of the plot in question allotted to the petitioner in pursuance of the auction bid shall be given by the U.I.T. forthwith to the petitioner without any charge over it with regard to interest. 15.There shall, however, be no order as to costs. * * * * *