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2023 DIGILAW 2006 (RAJ)

Virendra Kumar Meena S/o Shree Sugan Lal Meena v. Rajasthan Housing Board

2023-10-19

GANESH RAM MEENA

body2023
ORDER : 1. The facts pleaded by the counsel appearing for the petitioners are that an auction notice was issued by the respondent-Rajasthan Housing Board for auction of a plot situated at Ranthambore Road, Sawai Madhopur for establishing a hotel. The auction was held on 23.06.2009 and the petitioners were the highest bidders for the aforesaid plot measuring 1746.390 sq. meter. 2. In furtherance of the auction proceedings and the petitioners being the highest bidders, the respondent-Rajasthan Housing Board issued an allotment letter on 22.07.2009 to the petitioners and asked them to deposit the remaining amount of Rs.1,27,98,901/- within thirty days. 3. The petitioners made a representation dated 06.08.2009 to the respondent-Rajasthan Housing Board to allow them some more time to deposit the remaining amount which is a heavy amount. Another representation was submitted on 11.08.2009 in regard to the miscalculation of the amount to be paid by the petitioners. 4. The respondent-Rajasthan Housing Board issued a letter dated 13.08.2009 asking the petitioners to deposit the remaining amount before 21.08.2009 so that the proceedings for giving the possession of the plot of hotel could be completed. On 17.08.2009 the petitioners received another letter stating that the petitioners who are the highest bidders are required to deposit the auction amount within thirty days. The petitioners then submitted a representation to the Minister for Local Self Bodies and Urban Development Department for extension of time to deposit the auction amount. The respondent-Rajasthan Housing Board issued letters dated 11.09.2009 and 25.09.2009 informing the petitioners that the time period for depositing the auction amount has been extended for three months to run w.e.f. 22.07.2009. 5. The petitioners submitted a representation dated 20.11.2009 that they are ready to deposit the remaining auction amount, however, during the inspection of the plot it was found that it is not upto the measurement as per the auction and some persons may have made encroachment over some part of the auctioned plot and requested the respondent-Rajasthan Housing Board to remove the encroachment from the plot so that the amount can be deposited with the respondent-Rajasthan Housing Board. 6. In furtherance of the legal notice served by the petitioners, the respondent-Rajasthan Housing Board vide letter dated 07.12.2009 directed the petitioners to deposit the remaining auction amount within ten days. 6. In furtherance of the legal notice served by the petitioners, the respondent-Rajasthan Housing Board vide letter dated 07.12.2009 directed the petitioners to deposit the remaining auction amount within ten days. The respondent-Rajasthan Housing Board vide its letter dated 18.01.2010 addressed to the Chairman, Municipal Council, Sawai Madhopur, directed to remove the encroachment as alleged by the petitioners because the said encroachment is causing hindrances in the petitioners’ establishment of a hotel for which they have purchased the plot in question. The respondent-Rajasthan Housing Board vide reply to the legal notice dated 15.01.2010 stated that the period for depositing the amount i.e. upto 22.10.2009 has already come to an end and as per the condition No.3 of the auction notice the Chairman of the Rajasthan Housing Board can regularize the auction bid of the petitioners. After the reply to the legal notice the petitioners preferred this writ petition on 16.02.2010 with the prayer to extend the period of depositing the amount and to issue directions to the respondents to remove the encroachment from the plot purchased by the petitioners in auction prior to accepting the remaining amount and further not to levy any kind of interest on depositing the amount. 7. The facts pleaded from the respondents side are that the claim of the petitioners is that the calculation of the amount has been incorrectly made, has no substance because the amount has been calculated on the basis of the actual size of the plot given in auction to the petitioners. The respondents have not controverted the facts in regard to making of representation by the petitioners and the letters issued by the respondents. However, it has been stated in the reply that there is no encroachment within the boundary of the said plot and in para No.15 of the reply it has been stated that the respondent-Rajasthan Housing Board shall hand over the physical possession of the plot on deposition of the balance amount with penalty and interest. 8. This Court vide order dated 26.02.2010 ordered that the status quo as it exists on February 26, 2010 shall be maintained and in view of that interim order the plot is lying vacant without any third party rights in it. 9. 8. This Court vide order dated 26.02.2010 ordered that the status quo as it exists on February 26, 2010 shall be maintained and in view of that interim order the plot is lying vacant without any third party rights in it. 9. Counsel appearing for the petitioners submitted that the respondents are illegally and arbitrarily denying handing over of possession of the plot purchased by the petitioners in an open auction held on 23.06.2009. He further submitted that it is the duty of the auction holder i.e. the Rajasthan Housing Board to see that there is no encroachment over the auctioned plot or any area in front of the plot which could create hindrance in the establishment of the hotel for which the petitioners have purchased the plot. Counsel further submitted that the petitioners are always ready to deposit the remaining auction amount and they had made several representations to the respondent authorities. Though vide letter dated 18.01.2010 the Municipal Council has been directed to remove the encroachment because the said encroachment is creating hindrances in the establishment of the hotel but the respondent authorities are not taking care of removing the encroachment from the plot and road in front of it. Therefore, the action of the respondents is illegal, arbitrary and unjustified. Counsel has also submitted that it is the duty cast upon the respondents in giving the plot in auction to the petitioners to ensure that there is no encroachment over the plot and the road in front of it but the respondents in-stead of taking any action for removal of the encroachment, were bent upon to receive the amount. 10. In support of his submissions, counsel appearing for the respondents has placed reliance upon the judgment delivered by the Hon’ble Supreme Court in Haryana State Agricultural Marking Board Vs. Bishamber Dayal Goyal & Ors., reported in (2014) 16 SCC 24 . 11. Counsel appearing for the respondents submitted that the petitioners who are the highest bidders were required to deposit the auction amount with the respondents within thirty days from the date of auction and on the request of the petitioners same was extended for three months but the petitioners failed to deposit the auction amount within the extended period also and therefore, the highest bid of the petitioners stood cancelled, thus, the petitioners cannot have any claim over the plot in question. Counsel further submitted that on request of the petitioners the period for depositing the remaining amount was extended vide letter dated 25.09.2009 for a further period of three months from 22.07.2009 on depositing 15% interest and 5% penalty but the petitioners even failed to deposit the amount even in the extended period. 12. Considered the submissions made by the counsel appearing for the respective parties and perused the material available on the record. 13. The basic grievance of the petitioners is that the plot which was put to auction and then allotted to them being the highest bidders is found to be encroached upon and also there are encroachments over the land in front of the plot. The plot purchased by the petitioners is meant for establishment of the hotel. The petitioners have made several representations to the respondents for extension of time for depositing the amount and also to remove the encroachments as during their own inspection some encroachments over the part of the plot and so also over the road in front of it were found. Further the Rajasthan Housing Board vide its letter dated 18.01.2010 has asked the Municipal Council, Sawai Madhopur, to remove the encroachment which goes to show that there is encroachment and the respondents in-stead of removing the encroachment and allowing the petitioners to deposit the amount and not allowing the possession to the petitioners, is illegal and arbitrary. 14. On perusal of the material available on the record it is found that the petitioners had made a representation to the respondent-Rajasthan Housing Board for removal of encroachment alleged to be found during the inspection by them and the Rajasthan Housing Board vide letter dated 18.01.2010 asked the Municipal Council, Sawai Madhopur to remove the encroachment which goes to show that there are encroachments over some part of the plot given in auction to the petitioners and the road in front of the same. In such circumstances without removing of encroachment it is not feasible for the petitioners to establish a hotel because a hotel business requires a clean atmosphere. 15. It is also found that the petitioners are again and again making requests for extension of time for depositing the amount after removal of the encroachments but the respondents in-stead of getting removed the alleged encroachment, are again and again asking the petitioners to deposit the remaining amount. 15. It is also found that the petitioners are again and again making requests for extension of time for depositing the amount after removal of the encroachments but the respondents in-stead of getting removed the alleged encroachment, are again and again asking the petitioners to deposit the remaining amount. However, on the request of the petitioners, the respondents vide letter dated 25.09.2009 extended the period for depositing the amount for three months from 22.07.2009. Extension of period for depositing the amount from three months by issuing a letter dated 25.09.2009 and counting the period from 22.07.2009 itself shows the malafides of the respondents because if they were fairly intend to extend the period for depositing the amount for three months then that should have been counted from the date of service of the letter for extension of the period. 16. In reply to the legal notice submitted by the petitioners to the respondents and so also the reply to the writ petition, the respondents have stated that there is no encroachment as has been alleged by the petitioners in their representations and the legal notice but the letter dated 18.01.2010 issued by the Rajasthan Housing Board itself clearly speaks that there are certain encroachments over the plot and the road in front of it for which they have already directed the concerned Municipal Council to remove the same. The letter dated 15.01.2010 issued by the Rajasthan Housing Board to the Municipal Council, Sawai Madhopur clearly speaks that there are certain encroachments which are adverse to the establishment of the hotel over a plot purchased by the petitioners in an action. 17. In the case of Haryana State Agricultural Marketing Board (supra), the Hon’ble Supreme Court in para 22 has observed as under:- “22. In the present case, the inaction on the part of the Appellant in providing the requisite facilities for more than a decade clearly establishes deficiency of services as the Respondents were prevented from carrying out the grain business. However, the Respondents were also incorrect in refusing to pay the instalments and violating the terms of the instalment letter. In the present case, the inaction on the part of the Appellant in providing the requisite facilities for more than a decade clearly establishes deficiency of services as the Respondents were prevented from carrying out the grain business. However, the Respondents were also incorrect in refusing to pay the instalments and violating the terms of the instalment letter. Thus, considering the surrounding circumstances wherein the Appellant has been unable to develop the area for more than two decades and the resultant loss suffered by the Respondents, we are of the opinion that in the present situation, there is a need for proportionate relief as the levy of penal interest and other charges on the Respondents will be grossly unfair.” 18. Though it may be an obligatory duty of the petitioners to deposit the requisite amount of auction in the given period and in the extended period, however, it was also the mandatory duty of the respondent-Rajasthan Housing Board to see that there are no encroachments and if any encroachment is found, it should have been removed before accepting the remaining amount and handing over of the possession. When it is found that encroachments are there as evident from the letter dated 18.01.2010 of Rajasthan Housing Board, then the petitioners cannot be held defaulter in making payment of the remaining auction amount. 19. When it is found that encroachments are there as evident from the letter dated 18.01.2010 of Rajasthan Housing Board, then the petitioners cannot be held defaulter in making payment of the remaining auction amount. 19. In view of the discussion made above and considering the proposition given by the Hon’ble Apex Court in the case of Haryana State Agricultural Marketing Board (supra), the action of the respondent-Rajasthan Housing Board in not getting removed the encroachments from the plot purchased by the petitioners and the road in front of it, cancelling the allotment and not accepting the auction amount and not giving the possession of the auctioned plot, is held to be illegal, arbitrary and unjustified and thus, the writ petition deserves to be allowed and therefore, the same is accordingly allowed with the following directions:- (i) The respondent -Rajasthan Housing Board shall ensure the removal of encroachments from the plot purchased by the petitioners in auction and the road in front of it so as to enable the petitioners to establish a hotel and they shall prepare a spot inspection report in the presence of the petitioners after calling them that there is no encroachments and this exercise be done within a period of one month from the date of production of a certified copy of this order; (ii) The respondent-Rajasthan Housing Board shall allow the petitioners to deposit the remaining amount of Rs. 1,27,98,901/-within a period of two months after the report of removal of encroachments and shall hand over the possession soon after depositing the amount; (iii) The petitioners shall deposit the amount with interest @ 4% per annum (normal rate of interest in the Saving Account) to be calculated w.e.f. 01.01.2010 till the date of depositing the amount. 20. In view of the order passed in the main petition, the stay application and pending application(s), if any, also stand disposed of.