Dismissed

Uttarkhand Jan Kalyan Parishad v. State of U.P. and Others

Allahabad HC11 Sept 2019WRIC/59876/2009

Case brief

AI extract

What is this about?

The High Court dismissed the petitioner's writ petitions challenging interest charged by NOIDA Authority at a floating rate. The court held that the 15% circular applied only to disputed allotments, which were absent here, and the petitioner remained liable for default. It criticized the petitioner for initiating multiple parallel proceedings over three years regarding the same crisis.

What did the court decide?

The writ petitions were dismissed with no order as to costs; no stay or modification of interest charges granted.

Uttarkhand Jan Kalyan Parishad Vs State… — Contract and Commercial Disputes | Allahabad HC (2019)

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Court No. - 1

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Case :- WRIT - C No. - 59876 of 2009

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Petitioner :- Uttarkhand Jan Kalyan Parishad Respondent :- State Of U.P. And Others Counsel for Petitioner :- Suneel Rai,Suneel Rai Counsel for Respondent :- C.S.C.,Ramendra P. Singh

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AND

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Case :- WRIT - C No. - 52353 of 2006

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Petitioner :- Uttarakhand Jan Kalyan Parishad Respondent :- State Of U.P. And Others Counsel for Petitioner :- Suneel Rai

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Counsel for Respondent :- C.S.C.,Anurag Khanna,Gaurav Kakkar,M.N. Singh,Ramendra Pratap Singh,Shivam Yadav

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Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

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Heard Sri Suneel Rai, learned counsel for the petitioner, Sri Alok Singh, learned Advocate holding brief of Sri Ramendra Pratap Singh, learned counsel for respondent no. 2 and Sri Shivam Yadav, learned counsel for NOIDA.

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Since both the writ petitions raise common question of law and fact and, therefore, both the writ petitions are being heard and decided together with the consent of the parties.

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The petitioner is basically aggrieved against the interest being charged by the NOIDA Authority at floating rate of interest on delayed payment.

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The petitioner has raised argument to the effect that the maximum interest that can be charged by the respondent authority is only at the rate of 15% per annum on the delayed payment and not beyond that. However, he agrees to the fact that as per the agreement reached between him and the NOIDA Authority in the year 1991, when the industrial plot was

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allotted to the petitioner, it was provided that in case if there would be any default in payment of the premium amount of the lease, the NOIDA Authority would be entitled to charge interest at the rate of 24% per annum.

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The petitioner submits that there arose dispute regarding price being charged under the lease and the matter went up to the Supreme Court, by way of SLP, which was ultimately dismissed in the year 1999 on merits regarding the rate of land and then the review application filed by the petitioner was also dismissed by the Supreme Court vide order dated 2^nd August, 2000. The petitioner, therefore, submits that the dispute regarding rate of premium amount being charged, ultimately came to be settled in the year 2000 only with the dismissal of the review application and, therefore, the petitioner would be entitled to the benefit of the circular letter issued by the NOIDA Authority dated 19^th February, 1999 which contains that in case of any dispute regarding allotment and if resultantly the allottee is not able to deposit the amount or that the NOIDA Authority does not accept the amount during the course of dispute and after dispute the relevant amount is accepted, then the interest would be charged only at the rate of 15% with six monthly cumulative effect.

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From the perusal of the order of the earlier Division Bench dated 16.9.1998, we find that the petitioner raised on his own a plea of discrimination relating to the rate of premium, otherwise there was no such dispute nor, the respondent NOIDA Authority was denying any acceptance of premium amount. So the petitioner on his own raised the dispute and defaulted in payment. The relevant paragraphs of the Division Bench order of this Court dated 16.9.1998 is reproduced hereunder:

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“Countering the aforesaid averments of the petitioners, Sri H.S. Awasthi, learned counsel for the respondents, submits that no discrimination was practised as alleged by the petitioners. According to him, the application for allotment of land given by the petitioners on 15^th

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January, 1987 was rejected and the earnest money deposited alongwith the application was refunded to the petitioners on 23^rd January, 1988. It was on the fresh approach by the petition in through their letter dated 7^th May, 1991, they were allotted plot on 14^th November, 1991 on a premium of Rs. 600/- per sq. mtr, which was the rate prevailing then while allotment in favour of the Asian Convent Educational Societies was made on 20^th February, 1988 on a permium of Rs. 75/- per sq. mtr., which was the rate prevailing in the year 1988. Thus, there is no discrimination as alleged by the petitioners.

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In paragraph 6 of the counter affidavit, filed on behalf of the respondents, it is stated that the application of the petitioners was rejected and they were informed accordingly. It is further stated that the earnest money deposited by the petitioners was refunded to on 23^rd January, 1988. It may be pointed out that these averments have not been countroverted by the petitioners, by filing any rejoinder affidavit or by producing any other material before the Court.

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From the perusal of the averments made in paragraphs 14, 16 and 17 of the counter affidavit and the allotment dated 14^th January, 1991, a copy whereof is Annexure-11 to the petition, it is clear that the petitioners approached the respondents afresh through their letter dated 7^th May, 1991 for allotment of the land in their favour and in pursuance of this application, the allotment was made by the allotment dated 14^th November, 1991 on the terms and conditions specified therein. According to terms and conditions, the rate of premium was to be Rs. 600/- per sq. mtr and the petitioners had to deposit 20% of the total amount of the total premium as required. A lease deed was also executed between petitioners and the contesting respondetns, the petitioners took possession alone. Obviously, the petiitoners accepted the premium of Rs. 600/- per sq. metr got executed the sale deed and obtained possession. Now they can not be allowed to turn around and claim to be entitled to allotment at the same rate at which Asian Convent Educational Societies were allotted.

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The complaint of the petitioners regarding discrimination is misconceived for the simple reason, that the allotment in favour of Asian Convent Educational Societies was made in the year 1988, and the difference in rates of premium prevailing in the two

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relevant years is inevitable. In these circumstances, the question of their being any discrimination does not arise.

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The last contention raised on behalf of the petitioner is that they were not given any opportunity, before the impugned notice was issued to them. This contention is misconceived. There is no requirement or law was given, any opportunity before issuing notice of the kind which is impugned herein. The impugned notice only called upon the petitioners to pay the instalment and interest thereon, which admittedly fell due. It is not disputed that the instalment and the interest was due.

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All told, the petition lacks merits. Accordingly, it is dismissed summarily. The interim order/ orders, shall stand vacated.”

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It is against the above order that the SLP came to be dismissed and subsequently the review application was also dismissed.

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It seems that while the petitioner has not disclosed as to why he failed to deposit any amount after the dismissal of the review application on 2^nd August, 2000, it appears, after unsuccessfully litigating the matter of price of the premium amount, he further raised the dispute regarding the interest before the Lok Adalat. Further since the representation of the petitioner for the purposes of waving of interest came to be dismissed by the NOIDA Development Authority on 2.6.2006 with a direction that if he fails to pay the entire outstanding amount, his allottment would be cancelled and then the petitioner was also issued with the show cause notice as to why the allotment be not cancelled for violating the terms and condition of the lease and after making lawful deductions the amount be returned to him.

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The petitioner challenged these two orders vide Writ Petition No. 52353 of 2006 in which while entertaining the writ petition, the Court only passed the order to the effect that no third party interest would be created in respect of any dispute. From the perusal of the order dated 21^st September, 2006, it is clear that there was no stay order regarding interest being charged and the demand being raised by the respondent NOIDA

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Authority, instead, all that was ordered was that no third party right would be created.

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While the said writ petition was pending the petitioner moved some representation before the Authority to consider his grievance regarding interest and the Division Bench of this Court directed consideration of his representation vide order dated 5.3.2009. The order passed by the Division Bench is reproduced hereunder:

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“Heard learned counsel for the parties and perused the material on record.

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Learned counsel for the petitioner restricts his prayer only to the extent that the representation of the petitioner may be decided to which learned counsel for the respondents have no objection.

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Considering the facts and circumstances of the case, liberty is being given to the petitioner to file fresh copy of the representation raising his all the grievances/pleas which have been taken in the writ petition within a period of two weeks before respondent no. 3 who will consider the grievance of the petitioner and issue the certificate in accordance with law, after giving an opportunity of hearing to the petitioner, if possible within a period of two months from the date of receipt of a certified copy of this order along with representation.

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It is made clear that this Court has not expressed any opinion on the merit of the case and it will be independent exercise of the concerned authority to pass appropriate order in accordance with law.

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With the above mentioned direction this writ petition is disposed of.”

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It is pursuant to the said order that the representation of the petitioner came to be rejected by the NOIDA Authority justifying the rate of interest being charged, hence, this second writ petition.

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From the perusal of the pleadings as have come to be raised in both the writ petitions, one fact is admitted to the parties that petitioner's plea of discrimination in respect of premium amount being charged by the NOIDA Authority for the lease executed in favour of the petitioner of the

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industrial plot, was rejected and attained finality in the Division Bench judgment of this Court (supra) on 16.9.1998 against which SLP was also dismissed in the year 1999 and the review application was also dismissed in the year 2000. However, it is even thereafter, the petitioner did not make any deposit of the dues towards the NOIDA Authority and continued to enjoy the possession of the plot in question though failed to raise any construction as per the notice of show cause.

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It is also admitted to the petitioner that he raised the issue regarding interest being charged by the NOIDA Authority at the rate of more than 15% and for that he is contesting the matter before the Lok Adalat. It is in this background when he was issued with the notice to make necessary deposit failing which the allotment was liable to be cancelled that he filed the first writ petition and got an interim protection to a limited extent that no third party right will be created but, it appears, that while the said writ petition was still pending, he got another writ petition to get his representation decided against the rate of interest. That order for disposal of the writ petition had clarified that the Court had not adjudicated the issue on merits and thus it was left open for the Development Authority to pass order in accordance with law.

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Now testing the argument that the order has not been passed in accordance with law, we find that the only document which has been banked upon by the learned counsel for the petitioner is the letter of the NOIDA Authority dated 19.2.1999, according to which, in case of dispute 15% rate of interest will be charged. From the perusal of the letter, we find that the condition for applying the said circular letter is existence of dispute with regard to property under transfer or under allotment which we do not find to have ever existed in the present case. The second condition is that it is on account of such dispute that the petitioner was not able to deposit the amount or that the NOIDA Authority does not accept the amount during the pendency of the dispute, however, we find this is not the issue involved in the present case either and the third thing is that

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the NOIDA Authority accepts the premium only after the dispute is resolved.

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In the present case we find that the NOIDA Authority was always willing to accept the amount and that is why it issued show cause notices in the past and if there was any dispute regarding premium, it was unilaterally raised by the petitioner taking plea of discrimination which came to be ultimately rejected by this Court way back in the year 1998. Accordingly in case if the petitioner was raising any dispute, nothing restrained him from making any deposit because under the agreement he had agreed for the said amount to be paid as a premium. We further find that as per the original agreement it is also admitted to the parties that in case of default 24% interest will be charged. This has come to be later on modified to 15% which has been subsequently enhanced also. Since we have not been able to find any matter of dispute in the circular dated 19.2.1999, we are of the view that petitioner should have deposited the amount and on delay it could have been charged with an interest of 24% but since the rate of interest has come to be modified and the petitioner takes the plea of 15% , the petitioner cannot take 'U' turn to say that even if subsequently the interest amount has been raised, he would not be liable to pay the same.

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It is a case where we find that the petitioner has not only approached this Court but has even approached the Lok Adalat to get his grievance redressed. However the petitioner's plea of discrimination in the matter of price of plot having been dismissed, he is only litigating the matter of interest. The matter of interest by itself cannot be a matter of dispute as contemplated under the circular letter dated 19.2.1999. The petitioner is certainly liable to pay the interest if he is in default and can be charged either at the rate prescribed for under the agreement or in case if the NOIDA Authority has modified it subsequently to the advantage of petitioner to pay interest only at floating rate, then on such rate of interest as may be chargeable from time to time.

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We however, may record that we do not appreciate the conduct of the petitioner in drawing two parallel proceedings at the same time. If he had already pursued the matter before the Lok Adalat he sould not have filed this present writ petition only on the question of payment of interest and then should not have filed another writ petition seeking direction for disposal of the representation regarding interest being charged. This is third round of litigation in respect of the same matter.

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The writ petition lacks merits and is accordingly dismissed with no order as to costs.

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Order Date :- 11.9.2019 Nadeem Ahmad

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(Ajit Kumar,J.) (Ramesh Sinha,J.)

Uttarkhand Jan Kalyan Parishad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Uttarkhand Jan Kalyan Parishad v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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