Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 985 (RAJ)

Bhanwar Lal v. State of Raj

2018-04-11

SANDEEP MEHTA

body2018
ORDER : SANDEEP MEHTA, J. 1. Today, the matters are listed on interlocutory application No. 1408/2018 preferred by the petitioners requesting to be allowed to make following additional prayer: "D. That the respondent be directed to refund 50% of the amount as deposited by humble petitioner under protest as per clause no. 11(1)(Kha)." 2. With the consent of the learned counsel for the parties, the writ petitions are being heard and are decided today itself. 3. The instant bunch of writ petitions involves common question of facts and law and is thus being decided together by this single order. 4. The petitioners herein claim to be doing business of food grains, sugar/commission agents in the Krishi Upaj Mandi Samiti (Grains), Udaipur for the last about 2 decades. It is asserted that shops/godowns were allotted by the respondent No. 3 Krishi Upaj Mandi Samiti to the petitioners in the year 1996 at on monthly rent basis and since then, the petitioners are regularly paying the due rent and are doing their business in the premises allotted to them. The petitioners have however admitted that the allotment was temporary in nature and the respondents styled it to be on the warehouse pattern. The petitioners claim that as a matter of fact, exclusive possession of the premises was given to them on rental basis and they are enjoying the same till date and thus, they are for all practical purposes, allotees of first category. It is averred in the writ petition that one R.C. Sales Corporation which was also allotted the godown No. 30/G on the same conditions alike the petitioners, applied for regularisation of their premises and the competent authority accepted the said prayer by order dated 31.05.1997 and regularised the godown allotted to the said firm by executing a lease. However, when the petitioners too made the same prayer, the respondents acted in an absolutely highhanded and arbitrary fashion and tried to dispossess them. Thereupon, the petitioners filed civil suits to escape dispossession and have, approached this Court by way of these writ petitions seeking issuance of a writ of mandamus for regularisation of their shops. 5. The petitioners claim to have submitted their applications for converting the status of their premises from ad-hoc to 99 years lease which were not decided. Thereupon, the petitioners filed civil suits to escape dispossession and have, approached this Court by way of these writ petitions seeking issuance of a writ of mandamus for regularisation of their shops. 5. The petitioners claim to have submitted their applications for converting the status of their premises from ad-hoc to 99 years lease which were not decided. Whereupon, the petitioners filed an earlier bunch of writ petitions which were disposed of by order dated 10.12.2009 directing the respondent No. 3 to decide the applications filed by the petitioners and their likes under the Immovable Property Allotment Scheme, 2005 (hereinafter referred to as "the Scheme") within a period of six months. However, to the predicament of the petitioners, the respondent No. 3 passed the order dated 22.07.2010 and refused to execute 99 years lease for the shops in use and occupation of the petitioners under Clause 11(1)(Kha) of the Scheme of 2005 and instead gave them the option of getting the lease under Clause No. 7 of the Scheme. Being aggrieved by this communication/order dated 22.07.2010, the petitioners herein have approached this Court by way of these bunch of writ petitions praying that the respondents may be directed to executed a lease of the shops in question in favour of the petitioners in accordance with Clause No. 11(1)(Kha) of the policy. 6. During pendency of these writ petitions, Scheme of 2005 was amended vide notification dated 28.03.2016 and it was provided therein that the shops/godowns allotted on warehouse basis may be converted into 99 years leased property on certain terms and conditions. With the introduction of this amendment in the scheme, the respondent Krishi Upaj Mandi Samiti issued an advertisement in the newspaper inviting applications from the aspirants desiring to convert the warehouse pattern allotment to 99 years lease allotment. 7. In furtherance of the said advertisement, the petitioners have deposited under protest the requisite amount in terms of the amended scheme dated 26.03.2016 under protest and the lease deeds in question have been executed. Thus, through the amended prayer clause, the petitioners have prayed that the respondents be directed to refund the money falling due to the petitioners by treating their case under Clause 11(1)(Kha) of the Scheme instead of Clause 7 of the Scheme. 8. The respondents have filed a pertinent reply to the writ petitions opposing the prayer made by the petitioners. Thus, through the amended prayer clause, the petitioners have prayed that the respondents be directed to refund the money falling due to the petitioners by treating their case under Clause 11(1)(Kha) of the Scheme instead of Clause 7 of the Scheme. 8. The respondents have filed a pertinent reply to the writ petitions opposing the prayer made by the petitioners. They have taken recourse of the pleadings of the writ petition and have stated that the admitted case of the petitioners was that the shops in question were allotted to them on warehouse pattern and regularisation of such shops can only be done under Clause 7 of the Scheme because allotment to the petitioners amounts to a second subsequent leg of allocation under the Scheme. Only the persons who were allotted shops in the first round are covered under Clause 11(1)(Kha) as per which, the chargeable DLC rate is only 25% whereas in the second round of allotment, to be made under Clause 7, the DLC rate is calculated as 50%. It is further averred in the reply that clause 11 of the Scheme only relates to the allotments made in the fist round on rent basis and option is given therein to the firm concerned to convert it into 99 years lease. It is categorically stated in the reply that the petitioners' own admitted case is that the shops were allotted to them as stopgap arrangement on warehouse pattern and thus, execution of 99 years lease for these shops in favour of the petitioners can only be done in accordance with Clause 7 of the Scheme. On these grounds, the respondents have craved rejection of these writ petitions. 9. Shri Arpit Bhoot, learned counsel representing the petitioners vehemently urged that the respondents acted in arbitrary, highhanded and illegal fashion while coercing the petitioners to pay 50% of the DLC rate in terms of Clause 7 of the Scheme and the lawful rate to be charged should have been 25% in accordance with clause 11(1)(Kha) of the Scheme. He thus implores the Court to exercise its extraordinary writ jurisdiction and direct the respondents to refund/reimburse the excess amount charged from the petitioners while executing the lease deeds in the year 2017. He thus implores the Court to exercise its extraordinary writ jurisdiction and direct the respondents to refund/reimburse the excess amount charged from the petitioners while executing the lease deeds in the year 2017. He urges that the 50% of the DLC rate was deposited by the petitioners in lieu of issuance of the lease deeds under protest and thus, they are entitled to claim reimbursement thereof. 10. Per contra, Shri L.K. Purohit, learned counsel representing the respondent KUMS points out that as per the admitted pleadings of the petitioners, the shops/godown in question were provided to them on warehouse pattern and thus, the lease deed of such premises can only be issued under Clause 7 of the Scheme. Clause 11(1)(Kha) is only applicable to those firms who had been allotted the shops on rent basis in the first round. Only those aspirants can opt for issuance of lease in accordance with Clause 11(1)(Kha) of the Scheme. He thus urges that the writ petitions are fit to be rejected. He further submits that now, the State Government has issued an order dated 28.03.2016 whereby, the DLC rate chargeable for issuance of lease deeds even under Clause 11(1)(Kha) has been increased from 25% to 50% and thus, as on date, no difference whatsoever remains in the DLC rates chargeable for issuance of lease deed either under Clause 11(1)(Kha) or Clause 7 of the Scheme. 11. I have heard and considered the arguments advanced at bar and have gone through the material available on record. 12. 11. I have heard and considered the arguments advanced at bar and have gone through the material available on record. 12. The two relevant clauses of the Scheme of 2005 which are essential and germane for deciding the controversy at hand are reproduced herein below for the sake of ready reference: 7 & f}rh; ,oa i'pkrorhZ pj.kksa dk vkoaVu%& 1 & f}rh; ,oa i'pkrorhZ pj.kksa esa nqdkuksa ds Hkw[k.M ;k nqdkuksa dk vkoaVu ,sls vuqKki=/kkjh vkosnd dks gh fd;k tkosxk ftUgksaus vkoaVu ds o"kZ esa Bhd iwoZ ds de ls de ,d forh; o"kZ esa vf/klwfpr d`f"k ftUlksa dk O;olk; fd;k gks] ijUrq jkT; ljdkj }kjk fu/kkZfjr nj dh Ms<+ xquk jkf'k dk Hkqxrku djus ij ,sls vkosndksa dks Hkh Hkw[k.M ;k nqdku vkoafVr dh tk ldsxh] ftUgksaus iwoZ esa vf/klwfpr d`f"k ftUlksa dk O;olk; ugha fd;k gksA nksuksa Jsf.k;ksa ds vkosndksa dh la[;k ds vk/kkj ij Hkw[k.Mksa dh la[;k dk Js.khokj fu/kkZj.k fd;k tk;sxkA 2 & vkoaVu dh nj Mh0,y0lh0 dh 50 izfr'kr jkf'k gksxh] ijUrq ;g nj fudVre {ks= dh fjdks nj ls de ugha gksxhA 3 & vkoaVu 99 o"khZ; yht+ ds vk/kkj ij gksxkA 4 & vkoafVr nqdkuksa ds Hkw[k.M@nqdku dh jkf'k dk Hkqxrku vkoaVu ds le; ,d eq'r fd;k tkosxkA 5 & vkoaVu gsrq miyC/k nqdkuksa ds Hkw[k.Mks@nqdkuksa ij vkoaVu ls iwoZ nqdkuksa ds Hkw[k.M+@nqdku dh uEcfjax dk dk;Z vkoaVu lfefr }kjk fd;k tkosxkA f}rh; ,oa i'pkrorhZ pj.kksa esa nqdkuksa ds Hkw[k.M ;k nqdku dk vkoaVu ik= vkosndksa dks ykWVjh i)fr ds vk/kkj ij fd;k tk;sxkA ,sls vkoaVu ds lkFk vuqKk/kkfj;ksa dh lwph lekIr gks tk;sxhA vxyh ckj vkoaVu gsrq iqu% vkosnu i= vkeaf=r fd;s tkosaxs ,oa rnkuqlkj nqdkuksa ds Hkw[k.M@nqdku ysus okys vkosndksa dh la[;k miyC/k Hkw[k.M@nqdkuksa ls vf/kd gksus ij vkoaVu ykWVjh ds vk/kkj ij fd;k tkosxkA 6 & vkoafVr Hkw[k.M vFkok nqdku dh jkf'k dh 25 çfr’kr jkf'k okf"kZd yht+ ds :i esa vkoaVh }kjk ns; gksxhA yht jkf'k esa izR;sd 10 o"kZ i'pkr~ 2-5 çfr’kr dh o`f) dh tkosxhA vkoaVh }kjk yht jkf'k dh 10 xquk jkf'k ,d eq'r tek djokus ij vkoaVh dks yht+ jkf'k ls eqDr fd;k tk ldsxkA 11 & ekfld vkoaVu 'kqYd ij vkoafVr ifjlEifr;ksa dk 99 o"khZ; yht esa ifjorZu%& 1 [k & e.Mh çkx.kksa esa nqdkukas@xksnkeksa ds vkoaVh vuqKk/kkfj;ksa dks 30-04-2008 rd ;g fodYi lEcfU/kr e.Mh lfefr dks çLrqr djuk gksxk fd ;s vkoafVr nqdku@xksnke vkoafVr 'kqYd fdjk;k i)fr ij j[kuk pkgrs gS vFkok yht+ i)fr esa ifjorZu djuk pkgrs gSA vkoafVr nqdkuksa@xksnkeksa dks yht+ i)fr esa ifjofrZr djkus dh n'kk esa vkoaVh }kjk fnukad 01-04-2007 dks izHkkoh Mh,y0lh0 dh 25 çfr’kr nj ls Hkwfe dh jkf'k ns; gksxhA blds lkFk vkoaVh }kjk nqdku@xksnke dks yht+ i)fr esa ifjorZu djk;s tkus ds le; d`f"k foi.ku cksMZ ds }kjk fu/kkZfjr nqdku@xksnke dk ewY; Hkh ns; gksxkA 13. It may be stated here that the DLC rate of 25% as stated in Clause 11(1)(Kha) of the Policy has been increased to 50% w.e.f. 28.03.2016. 14. It is an admitted position from the pleadings of the petitioners that they were not allotted the premises in question in the first round of allotment and instead, the allotment was made to them on warehouse pattern of the plots/shops left vacant after the first round of allotment. Thus, in view of the clear language of the Clauses 7 and 11(1)(Kha) reproduced herein above, such aspirants who took the shops on rent in the warehouse pattern in the second round of allocation would be entitled to be considered for grant of lease deeds only under Clause 7 of the Scheme. That apart, even if, for a moment, the case of the petitioners is accepted then manifestly, they have already executed the lease deeds while paying 50% of the DLC rate in the year 2017. If the DLC rate of 25%, as referred to in Clause 11(1)(Kha) is applied with interest at the prevailing bank rates w.e.f. 22.07.2010 then, manifestly, the total amount as on date would exceed 50%. Thus, no advantage would be gained by the petitioners by claiming execution of lease deed under Clause 11(i)(Kha) of the Scheme. 15. In view of the discussion made herein above, this Court is of the firm opinion that the impugned orders/communications dated 22.07.2010 whereby, the petitioners were directed to pay 50% of DLC rate in lieu of execution of 99 years lease deeds of the shops/godowns in question to them under the Scheme of 2005 cannot be termed to be illegal, arbitrary, unjust or contrary to any of the provisions of the Scheme of 2005 so as to warrant interference therein. 16. As a result, the writ petitions as well as stay applications fail and are hereby dismissed. The additional prayer made through interlocutory application does not survive. Hence, the interlocutory applications are rejected. 17. A copy of this order be placed in each file.