CW 109/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.109/2008 Smt. Sadhana Versus JDA & Anr. Date of Order : 20/04/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. BK Gupta, Senior Advocate with Mr. Shiv Charan Gupta, for petitioner Mr. Mahendra Goyal, & Mr. Prashant Joshi, for respondents A widow of auction purchaser has approached this Court with legitimate grievance claiming refund of full bid amount having been deposited way back on 23/02/2006 alongwith interest 18% p.a., when the Jaipur Development Authority (“JDA”), a statutory created authority is unable to deliver vacant possession of Farm house plot No.74 at Ballupura village, Jaisinghpura Khor (Jaipur). Respondent-JDA issued a public notice (Ann.1) under a caption “Your dream Project – Farm House” at Ballupura village, Jaisinghpura Khor notifying auction on 23/01/2006. In reference to which, Anil Kumar Sharma husband of petitioner since intended to purchase Farm House in aforesaid scheme, had participated in auction proceedings and being a highest bidder having offered @ Rs.2,650/- per sq. mtr., for Farm House Plot NO.74 measuring 3000 sq. mtrs, his offer was accepted and confirmed by respondent JDA vide letter cum demand notice CW 109/08 //2// dt.03/02/2006 (Ann.2) – from which it is evident that petitioner’s husband deposited Rs.Four lacs vide challan NO.358/dt.23/01/2006 and Rs.Eight lacs vide challan No.28583/ dt.24/01/2006; and on confirmation of auction, her husband was asked to deposit balance amount of Rs.67,78,300/- within 30 days – in compliance whereof, a sum of Rs.67,78,300/- was deposited well within time on or before 23/02/2006 – details whereof are mentioned in para 4 of the petition. After acceptance of full & final payment of auction price of Farm house, her husband was asked to take over physical possession of auctioned plot No.74 in question vide letter dt. 07/03/2006 (Ann.4) and further asked to deposit yearly urban lease money/jamabandi @ Rs.18.80p. per sq.mtr., and accordingly he deposited a sum of Rs.28,200/- vide challan dt.25/08/2006 (Ann.5). But when possession of plot in question was not handed over, her husband tried his best efforts and on having fallen sick, correspondence was made through his authorized representative Shri Vishal Bajaj – special power of attorney holder; but due to massive heart attack, he died on 19/10/2006; thereafter, petitioner made efforts and contacted office of JDA for release of money deposited by her husband alongwith interest CW 109/08 //3// and when all her efforts failed, she approached this Court by way of instant petition. Foremost submission made by Counsel for petitioner is that on having failed to hand over vacant possession of the plot having been purchased by petitioner’s husband in public auction, despite full amount being deposited way back on 23/02/2006, respondent-JDA was under legal obligation to repay amount of purchase price of plot in question lying with JDA, alongwith interest @ 18% per annum along with reasonable compensation which this Court considers it appropriate, since the delay in non-payment whereof is causing great hardship to her. In support, Counsel placed reliance upon decisions of Apex Court in Ghaziabad Development Authority Vs. Subhash Gupta (AIR 2004 SC 4133) and Manjul Srivastava Vs. Govt. of Uttar Pradesh (2008(8) SCC 652). Respondents have filed reply to writ petition wherein this fact has not been controverted that the plot was put to public auction in which the petitioner’s husband was a highest bidder; and total purchase price of plot in question was made by her husband within time schedule in terms of NIT. However, it has been averred that since Revenue appellate authority granted CW 109/08 //4// interim order on 04/02/206 in case of Smt. Bhonri Devi & Ors Vs. State & Anr, whereby respondents were restrained from changing the status of property in question. However, in para 10 of the reply, it has been averred that respondents were ready to refund the amount deposited but at he same time, objection has been raised that petitioner has an efficacious & alternative remedy of approaching appellate Tribunal U/s 83 of JDA Act, 1982. Vide order dt.16/02/2010, this Court directed the respondent-JDA to place on record certified copy of stay order if having been passed by the Revenue Court and to file affidavit as to on what basis, the money was demanded despite the existence of alleged stay order being passed by a competent court of law. In compliance whereof additional affidavit has been filed by respondent-JDA and copy of interim stay order dt.04/02/2006 passed by revenue appellate authority has been appended as Schedule-A; and as regards justification, one U.O. Note dt.19/02/2010 written by Additional Director (Revenue & Property Disposal) JDA has been placed as Schedule B, to show that since there was no intimation available about interim order, the possession letter dt.07/03/2006 came to be issued from their office. CW 109/08 //5// Counsel for respondent-JDA submits that as the JDA has already offered showing willingness to refund the amount deposited lying with it, the petitioner atleast is not entitled for any interest after copy of the reply being served on 11/08/2008. This court has considered contentions advanced by Counsel for parties and with their assistance, examined material on record. The facts remain uncontroverted that in the instant case, petitioner's husband deposited total amount of auction purchase prices of plot in question way back on 23/02/2006 and on 07/03/2006, letter was sent to her husband directing him to take possession within 15 days after depositing urban lease money of Rs.28,200/- which too was deposited within time schedule. It could be unbelievable for a person that despite having complied with all conditions of bid document, the authority (JDA) will not hand over possession of the auctioned plot. However, husband of the petitioner, while pursuing grievance before the authority (JDA) on having gone from pillar to post, died on 19/10/2006 due to massive heart attack and thereafter his widow is pursuing grievance for the refund of amount deposited and lying with the authority (JDA) since long, along with legitimately claiming CW 109/08 //6// interest thereon. It was expected from the authority to refund the amount without any fail and it is an unwarranted litigation having come to this Court only because of red- tapism being deep-rooted among employees/ officers of the State authorities. As regards claim of refund of the amount lying with the authority (JDA), respondents in their reply showed willingness to refund the amount but the fact remains that even after reply was served on 11/08/2008, and despite having made averment therein, the refund in question was never tendered to the petitioner. As regards payment of interest, as per Annexure-A (U/R.14) of the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 lays down procedure for being 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 @ 15% per annum retrospectively from the date of acceptance of the bid; and once fails to deposit 3/4th amount within prescribed period, 1/4th of bid amount deposited by the biddeer shall be deemed to be forfeited and the auction will be stood cancelled. Indisputably, petitioner's husband CW 109/08 //7// deposited the full amount of the bid within time schedule in terms of bid document on its acceptance. It is not the case of respondent JDA that the bidder (petitioner's husband) at any stage has committed default. At this stage, this Court would like to observe that public auction in instant case took place on 23/01/2006 and the bid was accepted on 23/01/2006 and demand notice was issued to petitioner's husband for depositing 3/4th amount on 04/02/06 which was deposited within time schedule on or before 23/02/2006 (Ann.3) as detailed out in para 4 of the petition. However, it has come on record that on 04/02/2006, an interim order was granted by revenue appellate authority. This Court can certainly take judicial note of the fact that when matter was sub judice before revenue appellate authority and is not the case of respondent (JDA), that they were not party to the appeal before revenue appellate authority and these proceedings must have been initiated from SDO, where from it came in appeal before the appellate authority. In this view of matter, the JDA was well aware of proceedings in regard to disputed land being sub judice before revenue courts and still the disputed plot was put to auction on 23/01/2006 and the public was called upon to participate in the CW 109/08 //8// auction and it goes without saying that the petitioner will be entitled for refund of the amount deposited, alongwith interest. However, before parting with this judgment, this Court would like to observe that the facts having remained un-controverted on record clearly goes to show regarding functioning of the authority created under statute (JDA Act, 1982), inasmuch as it appears that there is no co-ordination among different sections working under controlling authority headed by its Commissioner, JDA; and the instance of present petition is clearly an eye opener for the authority and being accountable to the society, the officers must introspect and it is high time when they must take decision keeping proper co-ordination among different sections working under the headship of Commissioner, JDA. This Court can certainly take note of the fact that it is a primary duty of every State to fulfill basic need of citizens providing food, shelter & cloth, which is one of preamble of the Constitution. But, since the State Government failed to meet out need of basic shelter to its citizens, Housing co- operative societies duly registered under Co- operative Societies Act, intervened for providing housing facilities to the people at CW 109/08 //9// large. But, in present scenario and by passage of time, housing co-operative societies have lost faith among public at large; and people have a bona fide belief that being a statutory body created for the purpose, its action will be free from all encumbrances but if such statutory body proceeds on the foot steps of housing co- operative societies, it will be rendering the people to think to make their future plans at their own and this Court records its anguish against such public authorities acting in violation of constitutional or statutory provisions oppressively who are accountable to the society and they should introspect among themselves and see that the public may repose confidence in discharge of their statutory duties which has definitely shaken by passage of time. The action of the authority (JDA) might not have been deliberate or with oblique motive but at least seemingly there was no proper co-ordination among different sections working under headship of the Commissioner JDA but ultimate fact remains that for the act of the respondent, the petitioner has certainly been put to loss. In instant case, if respondent-JDA is CW 109/08 //10// entitled to charge 15% interest over the delayed payment in auction proceedings in case of default in payment of bid amount in terms of R.4 of Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974, certainly the JDA is liable to repay or refund the amount lying in deposit with them from the date of its deposit till actual payment whereof in the same manner. However, from the material having come on record (supra), including the facts that the widow has been compelled to approach by an unavoidable litigation, upon death of her husband and she was put to go from pillar to post inasmuch as no reasonable justification has come forward on the record, which has been taken note of (supra), in considered opinion, has certainly caused immense loss to her during intervening period and despite the rate of interest being charged @ 15% per annum under Rules, 1974 in case the bidder commits default, this Court considers it appropriate that the petitioner should be allowed to get refund of the entire sum lying with from JDA with interest @ 18% per annum as claimed by widow, as taken note of by Apex Court in the judgments cited at the bar. Consequently, writ petition succeeds and is hereby allowed; and the respondents are CW 109/08 //11// directed to refund the total amount deposited by petitioner's husband on acceptance of the bid in question, alongwith interest @ 18% per annum thereon from the date of its deposit till actual payment. Compliance of this order be made within two months from today. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.11/ 109CW2008RsrApr20Int.doc