Samiah International Builders Ltd v. State Of Uttarakhand
2021-07-14
MANOJ KUMAR TIWARI
body2021
DigiLaw.ai
JUDGMENT Manoj Kumar Tiwari, J. - Heard learned counsel for the parties through video conferencing. 2. By means of this writ petition, petitioner has sought the following relief:- "I. To issue a writ, order or direction in the nature of certiorari quashing the order of attachment dated 28.12.2020 by which the land of the petitioner measuring about 8.8219 hectare has been attached it is also prayed to quash the order of attachment dated 28.12.2020 by which a piece of land measuring about 17.0302 hectare of the petitioner has been attached by the respondent no. 1, 2 and 3 (contained as Annexure no. 1 & 2 to this petition)." 3. From the relief clause, it is apparent that petitioner is aggrieved by the coercive steps taken by Sub Divisional Magistrate for recovery of the amount, which petitioner is liable to pay in terms of judgment/order passed by competent authority. However, such judgment/order has not been challenged in the writ petition. 4. Earlier also, petitioner had filed Writ Petition (M/S) No. 217 of 2020 challenging the recovery certificate and also the recovery citation issued by Tehsildar, Rudrapur. In that writ petition also, petitioner had not challenged the order passed by Uttarakhand Real Estate Regulatory Authority, pursuant to which recovery citation was issued. The said writ petition was disposed of vide order dated 27.08.2020, which is reproduced below:- "This writ petition has been filed by a builder, namely, Samiah International Builders Ltd. By means of this writ petition, petitioner has sought following reliefs: "I. To issue a writ, order or direction in the nature of certiorari quashing the recovery certificate dated 02-09-2019 issued by the respondent no. 5 (Annexure No. 1 to the writ petition) as well as the letter of citation issued by the Tehsildar of Rudrapur, District Udham Singh Nagar, dated 10-12- 2019 (Annexure No. 2 to the writ petition). II. To issue a writ, order or direction in the nature of mandamus directing the respondents no. 1 to 3 and 5 to recover the amount of Rs. 25,00,000/- in easy installments which may be fixed by this Hon'ble Court." It transpires that Karnail Singh respondent no. 4 approached Uttarakhand Real Estate Regulatory Authority (for short 'URERA') by filing a complaint, alleging that petitioner had caused inordinate delay in developing the project and delay in handing over the possession of the flat.
25,00,000/- in easy installments which may be fixed by this Hon'ble Court." It transpires that Karnail Singh respondent no. 4 approached Uttarakhand Real Estate Regulatory Authority (for short 'URERA') by filing a complaint, alleging that petitioner had caused inordinate delay in developing the project and delay in handing over the possession of the flat. Learned URERA allowed the complaint vide order dated 02.09.2019, whereby it was provided that the builder shall be liable to refund the principal amount i.e. ' 20,55,000/- along with 10.65% interest to respondent no. 4, within 45 days. The said order has not been challenged in the writ petition and only the recovery certificate, issued pursuant to the said order, has been challenged. When the writ petition came up for admission before the Coordinate Bench of this Court, learned Senior Counsel for the petitioner made a statement that petitioner has already deposited a sum of Rs.10,00,000/- with Tehsildar, Rudrapur. Further statement was made by learned Senior Counsel for the petitioner that petitioner is ready to deposit a further sum of Rs.15,00,000/- within one month from 23.01.2020. In view of the statement made on behalf of the petitioner, vide order dated 23.01.2020, this Court provided that recovery citation issued against the petitioner shall be kept in abeyance, provided petitioner deposits a sum of Rs.15,00,000/- within 30 days. Subsequently, by an order dated 05.03.2020, time for depositing the amount was extended till 24.03.2020. Today, when the matter was taken up, learned Senior Counsel for the petitioner was not in a position to make any statement regarding deposit of Rs.15,00,000/- by the petitioner, in terms of the order of this Court. After hearing learned counsel for the parties, I am of the opinion that reliefs sought in the writ petition cannot be granted for the simple reason that principal order, which has been sought to be enforced by issuing recovery certificate, has not been challenged by the petitioner. Having regard to the peculiar facts and circumstances, the writ petition is disposed of with liberty to petitioner to deposit the remaining amount in terms of the recovery citation, within six weeks from today. For a period of six weeks only, no coercive action shall be taken against the petitioner." 5. In the present writ petition, a counter affidavit has been filed by District Magistrate, Udham Singh Nagar. Paragraph No. 5 of the said counter affidavit is reproduced below:- "5.
For a period of six weeks only, no coercive action shall be taken against the petitioner." 5. In the present writ petition, a counter affidavit has been filed by District Magistrate, Udham Singh Nagar. Paragraph No. 5 of the said counter affidavit is reproduced below:- "5. That the contents of para no. 2 of the writ petition as stated are not admitted, hence denied. In reply it is submitted that as the petitioner has not paid Rs. 1,34,42,951/- which is as per recovery order passed by Uttarakhand Real Estate Regulatory Authority and District Consumer Forum respectively, as the petitioner failed to pay the above amount then the recovery of above amount is made as arrear of land revenue as per law and as per order dated 28.12.2020 the property of petitioner in Village Daanpur, Rudrapur is attached." 6. Mr. T.A. Khan, learned Senior Counsel appearing for the petitioner submits that he is not challenging the orders passed by Uttarakhand Real Estate Regulatory Authority or the District Consumer Forum and petitioner's challenge is only to the attachment orders dated 28.12.2020, whereby 8.8219 & 17.0302 hectares land belonging to the petitioner has been attached for recovery of meager sum of Rs. 1,34,42,951/-. 7. The sole contention of the petitioner in the present writ petition is that value of petitioner's property, which is being attached by the respondents is more than Rs. 1,000 crore, therefore, it cannot be attached for recovery of small amount of Rs. 1,34,42,951/-. 8. A Coordinate Bench of this Court on 02.02.2021 had stayed the effect and operation of the impugned attachment orders, provided the writ petitioner pays Rs. 20 lakh within a period of 15 days. The said interim order was passed in view of the submission made by learned counsel for the petitioner that petitioner has already paid more than Rs. 27 lakh against the amount sought to be recovered and further that petitioner would deposit the remaining amount in four installments within four months. 9. The interim order dated 02.02.2021 was modified by this Court vide order dated 23.02.2021 and it was provided that the interim order passed on 02.02.2021 shall continue to operate, provided petitioner deposits a further sum of Rs. 50,00,000/- with Tehsildar, Rudrapur on or before 25.03.2021. 10. Learned Additional Chief Standing Counsel points out that petitioner has not deposited any amount in terms of the order dated 23.02.2021.
50,00,000/- with Tehsildar, Rudrapur on or before 25.03.2021. 10. Learned Additional Chief Standing Counsel points out that petitioner has not deposited any amount in terms of the order dated 23.02.2021. Learned Senior Counsel appearing for the petitioner submits that due to COVID-19 Pandemic, petitioner could not arrange the required amount of Rs. 50,00,000/-. When asked as to within what time, petitioner will pay off the amount sought to be recovered from him, learned Senior Counsel submits that at the moment, petitioner is not in a position to pay the amount of Rs. 50,00,000/- in terms of order dated 23.02.2021. He submits that at best, petitioner can deposit a sum of Rs. 15,00,000 within two weeks. 11. Since petitioner has not challenged the original orders pursuant to which recovery certificate has been issued and he has only challenged the recovery proceedings initiated consequent to the orders passed by Uttarakhand Real Estate Regulatory Authority and District Consumer Forum, therefore, there is little scope of interference in the matter. Moreover, this Court cannot be oblivious to the sufferings of the homebuyers, who had approached RERA and Consumer Forums and won the cases. 12. The recovery proceedings cannot be interfered with for yet another reason, namely, the homebuyers, who had approached RERA and Consumer Forums and in whose favour the proceedings were decided, are not before this Court. Any interference with the recovery proceedings would adversely affect those persons, therefore, the writ petition deserves dismissal for non-joinder of necessary parties. The argument of learned Senior Counsel for the petitioner that petitioner's property worth more than Rs. 1,000 crore cannot be attached for recovery of a small amount of Rs. 1.34 crore, is also bereft of merit. Attachment is a coercive process for recovery of dues and owner of the property is not divested of his title merely by attachment of property. Petitioner will continue to be the owner of the attached land till the land, or part thereof, is sold in public auction and the auction sale is confirmed. 13. In such view of the matter, there is no scope for interference with the recovery proceedings initiated pursuant to orders passed by judicial/quasi-judicial authorities. 14. Accordingly, writ petition fails and is dismissed. No order as to costs.