Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2109 (RAJ)

Vinod Rasewat v. State of Rajasthan

2012-10-06

RAGHUVENDRA S.RATHORE

body2012
Hon'ble RATHORE, J.—Being aggrieved of inaction of the respondent authorities, the petitioners have been compelled to file this writ petition with the prayer that the respondents be directed to get the registered sale deed executed in their favour, in respect of Plots No.2, 3, 5 and 6 in Khasra No.51 and under the District Centre Scheme. Further, it has been prayed that the respondent Urban Improvement Trust, Kota be prohibited from taking any coercive or prejudicial action, such as reducing or increasing the size of the plots in question. It has also been prayed by the petitioners that respondent No.5 Union of Bank of India be also prohibited from taking any steps/ action against the petitioners in respect of their residential house situated at Plot No.3, Nursery Yojna, Talwandi, Kota, with regard to settling the home loan taken by them. 2. The facts relevant for adjudication of the present matter are that respondent Urban Improvement Trust, Kota had issued an advertisement on 09.12.2010 in a local newspaper 'Dainik Bhaskar', through the Secretary respondent No.4, for sell of five plots admeasuring 1355.76 sq. feet, in Khasra No.51 under the District Centre Scheme of UIT, Kota by auction to be conducted on the same day. The petitioners had purchased four plots bearing number 2, 3, 5 and 6 in the said auction as being the highest bidder. Thereafter on 17.01.2011, the Secretary, UIT, had issued sanction letters to the petitioners with regard to the purchase of the aforesaid plots wherein the area, total price and the auction amount to be deposited was mentioned (Annexure-2 to 5). The petitioners had deposited 1/4th amount of the total price on the day of auction for which receipts were issued on the next day. The balance ¾ amount was to be deposited by 15.02.2011 and on failure to do so, 15% interest was to be paid additionally. Petitioner No.1 had deposited the said amount in respect of plot No.3 and petitioner No.3 had deposited the amount for Plot No.5, before the due date i.e. 08.02.2011. However, the amount in respect of other plots (No.2 and 6) was deposited by the petitioners with the requisite amount of interest because it was so done on 03.03.2011, after expiry of the due date. However, the amount in respect of other plots (No.2 and 6) was deposited by the petitioners with the requisite amount of interest because it was so done on 03.03.2011, after expiry of the due date. For the sake of clarity, the payments made by the petitioners for the respective plots are as under:- Amount Deposited Plot No.2 of Petitioner No.1 Plot No.3 of Petitioner No.1 Plot No.5 of Petitioner No.3 Plot No.6 of Petitioner No.2 Total Price Rs.35,38,534/- Rs.36,06,322/- Rs.32,53,824/- Rs.31,86,036/- On the date of Auction (1/4th) (09.12.2010 Rs.8,84,634/- Rs.9,01,580/- Rs.8,13,456/- Rs.7,96,509/- Before the due date (3/4th) (08.02.2011 - Rs.27,04,742/- Rs.24,40,368/- - After the due date with 15% interest (03.03.2011) Rs.26,53,900/- with interest Rs.44,716/- Total Rs.26,98,616/- - - Rs.23,89,527/- with interest Rs.40,262/- Total Rs.24,29,789/- Sight Plan Charge Rs.100/- Rs.100/- Rs.100/- Rs.100/- TOTAL Rs.35,83,350/- Rs.36,06,422/- Rs.32,53,924/- Rs.32,26,398/- 3. Subsequently, after making full payment of the plots purchased in auction, the petitioners moved applications to the UIT on 07.03.2011 and 10.03.2011 for getting the registered sale deed executed. The respondent UIT had acknowledged the receipt of applications and informed the date for executing the deed in respect of plot No.2 and 6 as 06.04.2011 and for other two plots to be 11.04.2011. But thereafter the respondent UIT did not do the needful with regard to execution of the documents of sale. The petitioners had then given representations of UIT which were of no avail and resulted in delay in completing the documentation process. 4. Besides, the petitioners had obtained home loan from Union Bank of India, respondent No.5 for purchase of the aforesaid plots and for that purpose they had surrendered the title deeds of their residential house situated at Plot No.3 Nursery Yojna, Talwandi, Kota, as an interim security with the bank. A total amount of Rs.36,00,000/- was sanctioned by the respondent Bank on 29.01.2011 with an understanding that the petitioners would deposit the documents of the plots which had been purchased in auction of UIT, after completing of formalities and documentation. Thereafter, the documents in respect of their residential house of Nursery Yojna, Talwandi were to be returned by the respondent Bank. The petitioners were to do the needful within a period of two months from the date of sanction of loan i.e. 29.01.2011. Thereafter, the documents in respect of their residential house of Nursery Yojna, Talwandi were to be returned by the respondent Bank. The petitioners were to do the needful within a period of two months from the date of sanction of loan i.e. 29.01.2011. When the petitioners could not furnish the documents, in respect of plots purchased in auction from the UIT within time, then the respondent Bank gave a final call on 24.06.2011 for depositing them within 30 days, failing which the interim security would be forfeited and the Bank shall take over the residential house of the petitioners at Nursery Yojna, Talwandi, Kota as against the final settlement of the home loan (Annexure-19). 5. This made the petitioners to take further steps of serving the notice for demand of justice to the respondents on 25.06.2011 reiterating the request for execution of the registered sale deed. But any number of requests made by the petitioners would not make the respondent UIT move to take steps for doing the needful. Therefore, the petitioners have approached this Court, by invoking extraordinary jurisdiction under the Constitution of India, for protection of their legal and constitutional rights against the respondent authorities and have sought reliefs, as aforementioned. 6. The case of the petitioners is that inaction on the part of the respondents in not having the necessary documents executed despite of the fact that the petitioners have purchased the plots in open auction and have already paid the full amount, is unreasonable and arbitrary. Further, he has submitted that the respondents ought to have acted in a fair and just manner so as to have the registered sale deed executed as soon as the full amount was paid by the petitioners. On failure of the respondents to do so has levied extra burden on the petitioners with regard to the loan which had been taken by them from the Union Bank of India, respondent No.5 and their residential house at Nursery Yojna, Talwandi, Kota, which was given as interim security is likely to be forfeited. This would cause irreparable loss to the petitioners as the respondents are not acting in fair and equitable manner. This would cause irreparable loss to the petitioners as the respondents are not acting in fair and equitable manner. It has also been submitted by the counsel that the petitioners had a reasonable and legitimate expectations from the respondent UIT so as to have a proper treatment from it by acting in a manner which would not adversely affect their interest. To complete the process of documentation, after the plot having been purchased by the persons in open auction, is the prevailing practice and the respondent being a public authority was expected to continue the same and do the needful. In case, the respondent Bank forfeits the interim security that is the residential house of the petitioners, it would not only cause irreparable loss to them but they would be made to suffer for no fault which can be attributed to them. The respondents should not have acted in a prejudicial manner by not getting the documents executed in favour of the petitioners whereas in other similar cases it had been so done and it is a matter of few days to do the needful. The respondents have not even refunded the huge amount which is lying with them since the month of March, 2011 which was the minimum to be done by the respondents in case there was any reason for not having the registered sale deed executed in favour of the petitioners. Such was rather a duty of the respondents and they were not to wait for any request in this regard. Therefore, the learned counsel for the petitioners has submitted that the writ petition be allowed with the aforesaid reliefs. 7. The respondents have contested the writ petition by way of filing their reply and have opposed the prayers made by the petitioners. So far as the factual position of the present case since publication of the advertisement in the newspaper with regard to sale of plots by the respondent UIT and upto the due payment of the amount by the petitioners, as given out in the writ petition upto para 7, the contesting respondent have not disputed the same. The primary submission made by the respondents is that as the size of the plots, on subsequent measurements, were found to be more than the one notified at the initial stage and therefore, the process of documentation could not be completed. The primary submission made by the respondents is that as the size of the plots, on subsequent measurements, were found to be more than the one notified at the initial stage and therefore, the process of documentation could not be completed. It is submitted on behalf of UIT that the petitioners were to pay the due amount on the basis of the increase in the size of the plots which was not deposited and therefore the registration was not got executed. In these circumstances, it is said by the respondents that no delay has been caused on their part. Therefore, it is submitted that there was no just reason for the petitioner to invoke the extraordinary jurisdiction of this Court and the writ petition be dismissed. 8. After having considered the contentions advanced by the learned counsels for the respective parties and on examination of the material on record, this Court is of the view that there is substance in this writ petition. The facts which are not in dispute in this case are that in furtherance of an advertisement issued by Urban Improvement Trust, Kota on 9.12.2010, the petitioners had participated in the auction held on that day and were the highest bidders for Plot Nos.2, 3, 5 and 6. Accordingly, the petitioners had deposited ¼ amount of the total price, on the closure of the auction bid. Subsequently on 17.01.2011, orders of sanction were issued by the Secretary, UIT, Kota, in respect of purchase of the said plots, mentioning the area, price and the auction amount which was to be deposited by the petitioners. The remaining ¾ amount was to be deposited by 15.2.2011 and in case of default, 15% interest was made payable. The amount with regard to two plots were paid by the petitioners within time and the amount for the other two plots were deposited with requisite interest as the same was done after the due date. Thereafter, the respondent UIT had informed the petitioners in respect of the dates of executing the registered sale-deed, i.e. on 6.4.2011 and 11.4.2011. 9. It has also not been controverted that the petitioners had obtained home loan from Union Bank of India (respondent No.5) for the purpose of purchase of the aforesaid plots and in lieu of it, they had deposited the title deeds of the residential house at Nursery Yojna, Talwandi, Kota as an interim security. 9. It has also not been controverted that the petitioners had obtained home loan from Union Bank of India (respondent No.5) for the purpose of purchase of the aforesaid plots and in lieu of it, they had deposited the title deeds of the residential house at Nursery Yojna, Talwandi, Kota as an interim security. The loan amount of Rs.36,00,000/- had been sanctioned on 29.01.2011. The petitioners were to do the needful by depositing the documents of the plots purchased in auction of UIT within a period of two months. The petitioners could not do so because of non-execution of registered sale deed by UIT, as a result of which a final intimation was given by the respondent Bank on 24.06.2011 for submitting the required documents within 30 days otherwise, the interim security was to be forfeited against the final settlement of the home loan. The petitioners had to give a notice for demand of justice through their counsel on 25.06.2011 and no response having been received from UIT, they approached this Court. 10. It would not be out of place to mention here that there was a dispute with regard to Plot No.2 between the UIT, Kota and one Jagdish son of Ramnath, much prior to the date on which the same was put to auction by the respondents in December, 2010. Consequently, Jagdish had filed a civil suit in a competent court of law in the year 2003 for a decree of permanent injunction on the ground that he was in possession of the plot and the UIT, Kota should be restrained from interference, whatsoever. The said suit was dismissed on 07.11.2008 and the appeal filed thereafter was also dismissed by Additional District Judge No.4, Kota on 15.07.2009. The plaintiff Jagdish had then filed a writ petition (485/2011) before the High Court, wherein an interim stay was granted on 17.01.2011 and the said petition is pending since then. The petitioners had later on moved an application on 20.07.2011 for refund of the amount in respect of plot No.2 which was so done by them on 25.07.2011. Resultantly, amount of 35,83,350/- was returned to the petitioners. 11. The petitioners had later on moved an application on 20.07.2011 for refund of the amount in respect of plot No.2 which was so done by them on 25.07.2011. Resultantly, amount of 35,83,350/- was returned to the petitioners. 11. From the aforesaid facts and circumstances, it emerges that the respondent Urban Improvement Trust had proceeded for putting the plots in question for auction in the month of December, 2010 whereas Plot No.2 was in possession of an encroacher and litigation with regard to it was pending. The petitioners had participated in the auction and adhered to the terms and conditions laid down for it by depositing the requisite amount with the respondents from time to time. On payment of the auction amount, receipts were issued to the petitioners and an intimation was sent for the date on which the registered sale deeds were going to be executed. There had been no grievance, whatsoever, with the respondents UIT either in regard to violation of any of the terms and conditions of auction nor any deficiency in the total amount paid for the respective plots. The respondents themselves had notified the total area of the plots and the same was mentioned even at the time of issuance of sanction letter, on the basis of which, the total auction amount was determined and demand was made from the petitioners. Even at the time of payment of complete auction amount, representations having been made by the petitioners for immediate execution of the registered sale deed and sending of the notice for demand of justice, the respondent UIT had never said a word in respect of any balance amount having been remained to be paid by the petitioners on the ground that the area of the plots was more or that the same was wrongly measured at the earlier point of time. Such a situation had come up for the first time in the month of July, 2011 when the respondents had said with regard to deposit of more amount. It was rather strange and not justified on the part of the respondent UIT in not having measured the plots properly and their failure to give the area of the plots at the time of advertisement, auction and even at the time of issuance of sanction letter, in furtherance of which the total amount was to be deposited by it. 12. 12. Moreover, even at the time of raising demand of extra amount on the ground that the area of the plot was found to be more, respondents had never taken up the stand that if the extra amount is not be deposited then the amount deposited earlier be taken back. As a matter of fact, it would have been more reasonable, fair and appropriate that the respondent UIT should have got the plots measured before putting them to auction and having received full amount from the petitioners. Even in case of error with regard to the area, it was the responsibility of the respondent UIT to have checked it at the earliest possible and in any case before receiving the auction amount. It was incumbent on the respondent Trust to have done so also because it had received the total amount which was approximately rupees 36 lacs for each of the plots and the same having been lying with them since quite some time by which they had gained in terms of the interest but the petitioners had suffered a great monitory loss. Moreso, when it was known to the respondent UIT that the petitioners had taken loan from the respondent Bank and the interest thereupon was being accumulated against them. Not only that, the petitioners were running the risk of forfeiture of the interim security which they had to give by way of their residential house and final call had already been given by the respondent Bank. Taking into consideration the facts and circumstances, in its totality, the inevitable conclusion is that the respondent Urban Improvement Trust had not only been negligent with regard to auction of the plots as well as got a huge amount deposited by the petitioners and they had failed in their duty to execute the registered sale deed, sooner the total amount was deposited by the petitioners. 13. It was the usual practice of the Urban Improvement Trust which was being followed after the deposit of the amount of the auction purchase. Accordingly, the petitioners certainly had reasonable and legitimate expectations from them. The respondent Trust, being a public authority, was expected to continue to and get the registered sale deed executed immediately when the petitioners had fulfilled the terms and conditions of the auction and deposited the total amount. Accordingly, the petitioners certainly had reasonable and legitimate expectations from them. The respondent Trust, being a public authority, was expected to continue to and get the registered sale deed executed immediately when the petitioners had fulfilled the terms and conditions of the auction and deposited the total amount. Inaction of the respondents had not only resulted in loss of the petitioners by way of the interest with which they were made to suffer for the huge amount deposited by them with the respondent UIT but also the interest on the loan obtained by them which made them suffer of financial loss without there being any fault on their part. 14. It was expected from the respondent UIT to have at least refunded the amount deposited with them, without any loss of time and the instant litigation, which is unwarranted, would have been avoided and the petitioners would not have been put to any financial loss. The respondents themselves had done so in respect of Plot No.2, of course after a long delay. In view of the fact that the petitioners had performed their part in accordance to the terms and conditions of auction and deposited the due amount and whenever they had failed to do in time, was so done by following the conditions of payment with interest. When the respondent UIT had imposed the condition on the petitioners that in case of failure to deposit the amount within time, they were liable to pay interest thereupon, then in that situation, it is just and proper that same liability should be fastened on the respondent UIT for having retained the amount for all this time and not having refunded the same so far. They ought to have made it clear by way of intimation to the petitioners that there being increased in the area, further amount be deposited or otherwise the deposit made earlier may be taken back. They ought to have made it clear by way of intimation to the petitioners that there being increased in the area, further amount be deposited or otherwise the deposit made earlier may be taken back. The Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules, 1974, lays down the procedure to be adopted for sale of plots by public auction and clause (f) whereof, clearly provides that if a successful bidder commits default, he is liable to pay interest at the rate of 15% per annum retrospectively from the date of acceptance of bid and on failure to deposit ¾th amount within prescribed period, ¼th of bid amount deposited by the bidder shall be deemed to be forfeited and the auction will stand cancelled. Indisputably, the petitioners had deposited the full amount of the bid within time schedule except the ¾th amount of two plots for which they had also paid the interest at the rate of 15% per annum. Moreover, the respondent UIT was very much aware about the proceeding with regard to Plot No.2 being subjudice, even then the full amount in respect of it had also been received and the same was retained upto July, 2011. 15. From the facts of the present case, it is amply clear that the petitio-ners had been compelled to approach this Court because of inaction on the part of the respondent UIT to have got the registered sale deed executed and also in not having refunded the amount paid by the petitioners. They had to give representations one after the other and were put to loss by way of interest on the loan taken by them from the respondent Bank which could have been avoided if the refund was promptly made by the respondents. There is no reasonable justification on the part of the respondent UIT to have retained the huge amount for all this time even when the petitioners had represented them. There is no reasonable justification on the part of the respondent UIT to have retained the huge amount for all this time even when the petitioners had represented them. Therefore, in the considered opinion of this Court, the respondent Urban Improvement Trust has certainly caused huge loss to the petitioners, during the intervening period and despite of the fact that interest is being charged at the rate of 15% under the Rules of 1974 in case the bidder commits default, it is appropriate that a similar treatment be given and petitioners should be allowed to get the refund of the entire amount lying with the res-pondent Urban Improvement Trust with interest at the rate of 18% per annum which is just and proper in the facts and circumstances of the present case. 16. The principle with regard to grant of interest on refund of the amount from an authority has been considered by the Hon'ble Supreme Court in the case of Ghaziabad Development Authority vs. Balbir Singh- 2004(5) SCC 65 . In para 18, the Hon'ble Court has held as under: 'There can be no dispute to the principles laid down in Prashant Kumar Shahi vs. Ghaziaabad Development Authority- (2000) 4 SCC 120 and Bihar State Housing Board vs. Prio Ranjan Roy- (1997) 6 SCC 487 . It is on these principles that it is already held that awarding interest at a flat rate of 18% is not justified. It is clear that in all these cases interest is being awarded as and by way of compensation/damages. Whilst so awarding it must be shown that there is relationship between the amount awarded and the default/ unjustifiable delay/harassment. It is thus necessary that there be separate awards under each such head with reasons why such award is justified. However, the principle that interest must be granted at the current rate of interest is only applicable where the proceedings are for recovery of debt or damages. They apply where a refund of amount is being claimed and the direction is to refund amounts with interest. The principles which govern grant of interest do not apply to grant of compensation. For this reason also it becomes necessary to consider facts and award damages/compensation under various heads.' The said principle has been reiterated in the case of Alok Shanker Pandey vs. Union of India- 2007(3) SCC 545 . The principles which govern grant of interest do not apply to grant of compensation. For this reason also it becomes necessary to consider facts and award damages/compensation under various heads.' The said principle has been reiterated in the case of Alok Shanker Pandey vs. Union of India- 2007(3) SCC 545 . Para 5 reads thus: 'It is not disputed that the instalments as mentioned in both the reser-vation letters, were paid on the specified dates as indicated therein. It is also not disputed that though the estimated cost was indicated at Rs.6,64,000/-, the same was not worked out till the year 1998 when the first camp was held, in respect of allotment of such flats. The respondent also made no efforts to issue demand letters in respect of the remaining amount subsequent to the year 1995 when the last instalment was paid. On the other hand, the applicant was given an assurance that the possession of the flat would be given to him in the near future. The applicant, therefore, had no alternative but to ask for refund of the amount as deposited. The respondent on its side has no explanation for either not demanding the remaining amount or hand-ing over the possession of the flat. Even the averment of the applicant that the house is not yet ready has not been strongly refuted. Thus, it is a clear case of deficiency of services on the part of the respondent. As a result of such unfair trade practices, the applicant has not only been deprived of return on his investment made with the respondent authority but also the possession of the flat promised to him.' Similarly, in the case of Manjul Srivastava vs. Government of Uttar Pradesh and others- (2008) 8 SCC 652 , the Hon'ble Supreme Court had observed in para 24 as under: '....... Such being the state of affairs, we are of the view that the appellant should be allowed to get refund from GDA the entire sum with interest at the rate of 18% and not at the rate of 5% as we find that from the brochure itself, it would be clear that in the event, the appellant could not deposit the entire amount after the allotment is made within certain time, 18% interest shall be levied on the appellant. It is an admitted position that the appellant deposited the entire amount as directed by GDA in the year 1989 and the order of cancellation of reservation of a plot in favour of the appellant was made after more than seven years and, therefore, we must hold that the respondent was liable to pay interest not at the rate of 5% but at the rate of 18%.' 17. Consequently, the writ petition is hereby allowed. The respondents are directed to refund the total amount deposited by the petitioners, except Plot No.2, alongwith 15% interest from 1st April, 2011 till the actual payment. The compliance be made within one month from the receipt of certified copy of this order. There shall be no order as to costs.