1 CWP No.1952/2006 Gopal IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.1952/2006 M/s.Anukampa Avas Vikas Pvt. Ltd. & another Versus State of Rajasthan and another Date of order ::: September 05,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr. S.M.Mehta, Mr.Kamlakar Sharma and Mr.R.S.Mehta, for the petitioners Mr.Bharat Vyas, Addl. AG for the respondents REPORTABLE BY THE COURT (1) By the instant writ petition, the petitioners have initially prayed for a writ of prohibition or any other appropriate writ, order or direction in the nature thereof restraining the respondents from interfering in the peaceful possession of the petitioners and further restraining them from taking any action to dispossess the petitioners from the property in question situated at S-1, Poultry Farm, Ajmer Road, Jaipur measuring 7000 Sq. Metres. The petitioners have also prayed for payment of Rs.50,000/- as damages for breaking down the entry gate in question and causing mental harassment. (2) On disclosure of the fact that vide order dated 4.3.2006 the lease deed dated 17.10.2005 which was duly registered on 18.10.2005, as corrected on 19.1.2006, has been cancelled and the amount of Rs.1,93,08,001/- was also refunded vide Cheque No.770731 and the possession was 2 CWP No.1952/2006 Gopal also taken and further when the petitioners refused to receive the same then the order was affixed at the premises in question. Subsequently also, the said order dated 4.3.2006 was sent through registered post. The petitioners filed rejoinder and submitted that after execution of the sale/lease deed no notice was given to them and the order dated 4.3.2006 has not been communicated to them. It was also stated in the rejoinder that the possession of the property was handed over to the petitioners on 10.10.2005 and the sale/lease deed was executed on 17.10.2005, thereafter, the petitioners made constructions which will be referred hereinafter and ultimately, it was prayed in the rejoinder that the order dated 4.3.2006 is without jurisdiction and violative of principles of natural justice. (3) Briefly stated, the relevant facts of the case are that on 26.10.1993, auction of the plot in question was held by the respondent JDA wherein the petitioner No.1 M/s. Anukampa Avas Vikas Pvt. Ltd. was the highest bidder and it deposited Rs.13,65,000/- within twenty four hours and thereafter, the bid was approved by the Commissioner, J.D.A. i.e. the competent authority. On 23.11.1993, demand notice of thirty days was issued requiring the petitioner No.1 to deposit the balance amount of Rs.79,48,001/- of the sale consideration. Before the expiry of the said period of thirty days, the respondent J.D.A. issued a letter dated 21.12.1993 whereby the petitioner No.1 was informed that there was stay on the 3 CWP No.1952/2006 Gopal auction of the aforesaid plot granted by the High Court hence 15% amount deposited by the petitioner No.1 was ordered to be refunded. The petitioner No.1 submitted reply on 30.12.1993 (Anx.4) to the said letter dated 21.12.1993 and demanded a copy of the said order as has been stated in the aforesaid letter dated 21.12.1993 with the further request that till the matter is finally decided, the advance amount deposited by the petitioner No.1 may be kept/retained by the JDA. The said representation/letter was followed by reminder dated 24.8.1994 (Anx.5). (4) In the meanwhile, the petitioner No.1 filed writ petition before this Court in the year 1993 which was registered as SBCWP No. 6773/1993 and contended therein that after confirmation of the bid no decision had been taken by the Commissioner, JDA in spite of the representation submitted by the petitioner No.1. After notice to the other side, the said writ petition was decided by this Court on 26.9.1994 (Anx.6) with a direction to the Commissioner, JDA to take decision within a period of fifteen days from the date of receipt of the certified copy of the said order. It is further stated in the present writ petition that the Court had accepted the contention of the petitioner No.1 that no final decision with regard to the Bid submitted by it had been taken by the Commissioner,JDA after letter dated 21.12.1993. After the said judgment the petitioner No.1 submitted a representation on 5.10.1994 (Anx.7) along with 4 CWP No.1952/2006 Gopal copy of the aforesaid judgment dated 26.9.1994 with a request to the JDA to take an early decision in the matter. The same was followed by reminders dated 17.8.1995, 25.6.1996, 1.6.1997 and 28.9.1999 for compliance of the judgment of this Court dated 26.9.1994. (5) On 26.4.2000, the JDA issued a notification (Anx.8) in the newspaper stating therein that the land situated at Ajmer Road, popularly known as Poultry Farm (plot in question) is held by it and the same is free from all encumbrances, upon which the petitioner No.1 submitted a representation on 18.5.2000 (Anx.9) and requested to comply with the directions of this Court dated 26.9.1994. On the aforesaid representation, the petitioner No.1 was called for personal hearing on 25.5.2000 and a meeting was convened which was presided over by the Commissioner, JDA with coordinate Members – Director (Finance) and Director (Law). In the said meeting, it was decided to charge the balance amount along with interest @ 15% per annum from the petitioners which the petitioners although initially opposed levying interest and relied on the decision of this Court in M/s. K.K. Complex Pvt. Ltd. and others V. JDA reported in 1993(2) WLC Page 652. However, no decision was communicated to the petitioners and the respondent JDA further delayed the implementation of the judgment of this Court dated 26.9.1994. (6) In the aforesaid facts and circumstances, the petitioners filed the petition before the State Level 5 CWP No.1952/2006 Gopal Settlement Committee constituted by the State Government for deciding the disputes between the concerned parties. It is also stated by the petitioners that the said dispute was mainly with regard to the interest @ 15% per annum which was held to be reasonable by the said State Level Settlement Committee and direction was issued to deposit the balance amount along with interest. Thus, contention of the petitioners not to charge the interest was rejected by the State Level Settlement Committee vide its decision dated 5.3.2002 (Anx.10) and the decision of the JDA was held to be just and proper. The petitioners deposited the balance amount of sale consideration of Rs. 79,48,001/- and further requested the JDA vide representation dated 10.5.2002 to inform the amount of interest payable by the petitioner No.1. When no information was received from the JDA then the petitioners, at their own, on 10.7.1993, calculated the amount of interest as Rs. 99,95,000/- which was paid by cheque dated 10.7.2003. (7) The JDA though retained the total principal amount of auction, however returned the cheque of interest amount vide letter dated 26.7.2003 (Anx.13) on the ground that this Court had granted stay on the decision of the State Level Settlement committee. The petitioner No.1 vide representation dated 16.8.2003 (Anx.14) informed the JDA that no stay order had been passed by the Rajasthan High Court and further requested the JDA to make available copy 6 CWP No.1952/2006 Gopal of the stay order, if any. Again on 19.12.2003, the petitioners wrote to the JDA to make available copy of the alleged stay order. In the said representation dated 19.12.2003 (Anx.15), it was also clarified by the petitioners that they had enquired into the matter through their counsel and it was found that no stay order was passed by this Court more particularly in the present matter. The petitioners submitted another representation dated 25.1.2005 (Anx.16) on which Officer of the JDA informed the Commissioner, JDA that there was an oral stay passed by the High Court, to which the petitioner opposed and submitted that under the Rajasthan High Court Rules, there could be no oral stay. The Commissioner, JDA after fully satisfying recorded on the representation that the applicant is ready to deposit Rs. 1 Crore, there cannot be oral stay and further the applicant is ready to take the liability of the contempt. Ultimately, after verifying all the facts, the JDA issued the demand letter dated 6.10.2005 (Anx.17) and in this letter, the JDA has acknowledged confirmation of the bid dated 26.10.1993. The Commissioner, JDA accorded approval for levying of the interest from the petitioner No.1 and accordingly a demand of Rs.99,95,000/- was raised against the petitioner No.1 and also directed to submit an undertaking to the effect that there is no stay of any court in the matter of land of Poultry Farm and in case of any contempt, the petitioners would be responsible for all the consequences. In compliance to the 7 CWP No.1952/2006 Gopal letter dated 6.10.2005, the petitioner No.1 deposited interest amount of Rs. 99,95,000/- and also filed an undertaking. (8) In the writ petition, it is stated that asking for such undertaking was unwarranted because the buyer cannot be bound by the whimsical and capricious manner in which the respondent J.D.A. acted. When the petitioners informed in the representation that there was no stay, whatsoever on the auction of the land in question and even if there was any stay order, copy of the same be made available. It is further stated in the writ petition that the JDA was bound to comply with the directions issued by this Court in the judgment dated 26.9.1994 (Anx.6) in SBCW No. 6773/93. On 17.10.2005, the lease deed was executed between the petitioner No.1 and the JDA and more than Rs.16 lacs have been paid towards stamp duty and registration fee at the time of registry on 18.10.2005. Thereafter, the JDA handed over physical possession of the property at site on 30.11.2005 and the petitioners constructed the boundary wall, Chowkidar room, store room, office room and placed a Gate and further obtained electric connection from JVVNL and constructed a bore well investing huge amount to the extent of Rs. 20 lacs and applied for loan to the RFC which sanctioned loan of Rs. 7.80 Crores, out of which Rs.3 Crores have already been drawn by the petitioner No.1. The petitioners have already deposited all the original title documents with the Rajasthan Financial Corporation (RFC) and paid interest to the tune of 8 CWP No.1952/2006 Gopal Rs. 1.80 Crore till date. (9) The petitioner No.1 desirous of making construction on the aforesaid plot submitted the building plans on 22nd November, 2005. The JDA by its communication dated 30.1.2006 (Anx.26) pointed out certain discrepancies with regard to the measurement. In the late night of Saturday - 4th March, 2006 at about 8 p.m. the petitioner No.1 received information from the Chowkidar that certain officials of the JDA with the aid of police force had come on the spot and despite his protest had broken down the entry gate of the premises and were trying to enter into the premises. Whereupon the Chowkidar physically stopped them from doing so as they had no authority to do so. Shri Gopal Prasad Gupta, Director of the petitioner Company was at some distance away from Jaipur at that time and immediately started for Jaipur after getting the message. In the meantime, on action of obstruct of the Chowkidar and his frequent request the officials of the JDA went back saying that the entire premises should be vacated otherwise they would demolish the construction. By the time Shri Gopal Prasad Gupta, Director of the petitioner No.1 could reach at the spot the officials of the JDA had left. In the morning of Sunday - 5th March, 2006, the petitioners were astonished to see a news item (Anx.27) that the JDA had said to taken back the possession of the land. The petitioners tried to gather information and have found that some question was 9 CWP No.1952/2006 Gopal raised in the Rajasthan Legislative Assembly alleging that the JDA had made the allotment illegally to the petitioners on which the Minister for Urban Development and Housing Department is alleged to have given an answer to the effect that if illegality has been committed, possession would be taken back. It was in pursuance to the aforesaid answer of the Minister that the action of the JDA has been taken. It is stressed upon in writ petition that no notice whatsoever has ever been served upon the petitioners in writing or orally and the entire action of the JDA taken in the night of the Saturday, 4th March 2006 came as totally unexpected and shocked to the petitioners. At this stage, the petitioners have filed the writ petition and have made initial prayers which have been further extended in the rejoinder, as indicated above and detailed out hereunder while dealing with the rejoinder. (10) There is not much dispute about the dates and the facts. However, in order to complete the narration of facts, it would be proper to mention the facts stated by the JDA in its reply. (11) According to the respondent JDA, there was an order of status quo passed by this Court on 18.12.1992 in Writ Petition No.7947/1992 Rewa Choudhary V. State of Rajasthan with regard to the same plot in question. Therefore, the auction dated 26.10.1993 conducted by the JDA is illegal. In the reply, it has also been stated that the 10 CWP No.1952/2006 Gopal order dated 21.12.1993 regarding cancellation of the auction attained finality and further acts of the JDA are contrary to the oral stay on the implementation of the decision of the State Level Settlement Committee in Ram Sharan's case, therefore, vide order dated 4.3.2006, the sale/lease deed has been rightly cancelled. (12) The petitioners have filed rejoinder to the reply of the respondents and submitted therein that the order dated 4.3.2006 was not communicated to them and on the same day, the respondents have acted in a high handed manner by breaking the entry gate and made an attempt to dispossess the petitioners. By the order dated 4.3.2006 the sale/lease deed dated 17.10.2005 and corrigendum dated 19.1.2006 have been cancelled without any notice to the petitioners on the ground of concealment of stay in Ram Sharan Singh's case, therefore, the same being violative of principles of natural justice, is void. Apart from above, the same is without jurisdiction being contrary to the provisions of the JDA Act, 1982, Registration Act as well as other provisions of law that a party to the registry has no right to cancel the same for the reason that the property rights vested in the buyer on registration of the sale/lease deed which cannot be divested by other party and that can only be cancelled by the civil court by way of a declaratory suit. (13) Submission of counsel for the petitioners is that with the confirmation of the sale, the petitioners became owner of 11 CWP No.1952/2006 Gopal the property in question and thereafter the respondent JDA had no authority to cancel the same and that too, after registration of the sale/lease deed which could only be cancelled by the declaration made by the civil court. Further submission of the counsel for the petitioners is that there cannot be any oral general stay order and in case of the petitioners, the dispute before the State Level Settlement Committee was with regard to the payment of interest @ 15% and not with regard to the confirmation of the sale which was already made subject to the payment of 15% interest and once the said interest has been deposited by the petitioners, thereafter, the JDA has no authority to take shelter of the oral observations of the High Court, more particularly for the reason that the decision of the JDA was upheld by the State Level Settlement Committee and the matter stood at par as if no adverse order has been passed by the State Level Settlement Committee and the JDA order is also not against public interest. Therefore, the matter stood where it was; so even if there was an oral observation then also, it can not be said that the subsequent action of the parties are contrary to the stay order. Hence, as a matter of fact, the decision of the JDA was to be implemented and not of the State Level Settlement Committee. (14) Last submission of counsel for the petitioners is that the JDA was bound to comply with the High Court order dated 26.9.1994 (Anx.6) and there was no stay for implementation 12 CWP No.1952/2006 Gopal of the same. The interim order passed in Rewa Choudhary's case also came to an end when the said writ petition was dismissed on 10.1.1995 which resulted in the revival of the auction held by the JDA on 26.10.1993, therefore, the lease deed was rightly executed and registered on 18.10.2005 between the parties and the petitioners are entitled to all the benefits of the same. Further, the actions of the JDA are contrary to the provisions of the JDA Act, Registration Act and other enactments. (15) On 11.7.2008, information was summoned from the respondents on five issues, which are as follows: 1.How the auction was ordered despite stay order dated 18.12.1992 in Rewa Choudhary's case (SBCWP No.7947/1992). 2.The final order/judgment in Rewa Chaudhari's case SBCWP No.7947/1992, 3. Copy of application by the petitioner to the Settlement Committee and order passed by Settlement Committee. 4. Order dated 21.4.2003 passed by Division Bench in DBCWP No.2658/2003 Ram Sharan Singh Versus State of Rajasthan. 5. Present position of Rewa Chaudhari's case (SBCWP No.7947/1992. The matter was ordered to be listed on 16.7.2008. On 16.7.2008, counsel for the respondents submitted that the 13 CWP No.1952/2006 Gopal information required by the Court vide order dated 11.7.2008 except the record of the Settlement Committee has been received, therefore, two days' time was prayed for giving the information except record of the Settlement Committee and the matter was fixed for 18.7.2008 with the direction that in case the respondents did not comply with the order dated 11.7.2008, then adverse inference will be drawn. On 18.7.2008, the judgment was reserved with the further opportunity to place on record the available information on the same day i.e. 18.7.2008. Subsequently, additional affidavit and its reply was filed on 22.7.2008.Thereafter, on 25.7.2008 it was thought proper to fix the case in the category of `To be Mentioned' on 29.7.2008. On 29.7.2008, detailed order was passed whereby both the affidavits have been taken on record and the judgment was again reserved to complete the chain of facts and left out relevant documents to be taken on record as the complete record was not available with the JDA. The said facts and documents are being considered hereunder in the light of the submissions made by them. (16) Counsel for the petitioners placed reliance on the following judgments: 1. Municipal Board, Mount Abu V. R.R.Solanki (1986 WLN (UC) 528. 2. Jai Bhawani Timber V. State of MP AIR 1992 MP 250. 3. Sunil Pannalal Banthia & ors. V. C & I Dev. Corporation of Maharashtra Ltd. And another JT 2007 (4) SC 271. 4. State of MP V.G.L.Patel and Co. AIR 1997 MP 74. 5. ABL International Ltd. V. Export Credit Guarantee 14 CWP No.1952/2006 Gopal Corporation of India and ors.(2004) 3 SCC 553. 6. Lamba Industries V. Union of India and others (1991) 2 SCC 407. (17) Counsel for the respondents has also touched the preliminary objection of availability of alternative remedy under section 83 of the JDA Act, 1982, of filing a reference application/appeal before the JDA Appellate Tribunal against the order dated 4.3.2006 and has further submitted that the writ petition is not maintainable on the ground of availability of alternative remedy. On the issue of alternative remedy, counsel for the respondent JDA has placed reliance on the following judgments: (i)K.S.Rasheed & Sons V. Income Tax Investigation Commissioner (AIR 1954 SC 207). (ii)Union of India V. T.R.Verma (AIR 1955 SC 425) (iii)K.S.Ventatraman & Com. Pvt. Ltd. V. State of Madras (AIR 1966 SC 1089) (iv)Siliguri Municipality V. Amalendu Das (AIR 1984 SC 653) (v)A. Venkatasubbiah Naidy V. S.Chellappan (AIR 2000 SC 2573) (vi)LL Subhakar Reddy V. State of Andhra Pradesh (2001) 6 SCC 634. (vii)S.S.Satguru V. State of Maharashtra (2001) 8 SCC 509. (viii)Pratap Singh V. State of Haryana (2002) 7 SCC 484 (ix)Titaghur Paper Mills Ltd. V. State of Orrisa (AIR 1983 SC 603) (x)State of Himachal Pradesh V. Gujarat 15 CWP No.1952/2006 Gopal Ambuja Cement Ltd.(2005) 6 SCC 499 (18) On the issue of alternative remedy, counsel for the JDA has further submitted that the principles of natural justice have been followed and therefore, the second exception of Gujarat Ambuja case (supra) will not apply. He has placed reliance on Gujarat Ambuja as well as earlier judgment of this Court and the Supreme court which are as under:- 1. Puran Chand V. State of Rajasthan 1974 RLW 526 2. Chanan Singh V. Registrar, Coop. Societies, Punjab and others AIR 1976 SC 1821 3. Jagdish Kumar Sinha V. The State of Rajasthan and others 1980 WLN 1 (19) Submission of Mr.Bharat Vyas, Addl. AG on merit is that the auction dated 26.9.1994 after passing of the stay order dated 18.12.1992 passed in Rewa Choudhary is void and therefore, the JDA has rightly cancelled the same on 21.12.1993 and the said order attained finality. (20) Mr.Bharat Vyas further submits that the cancellation of the lease deed vide order dated 4.3.2006 is strictly in conformity with the provisions of law as it is the settled principle of law that all actions done during the pendency of status quo order are void ab initio. He also submits that during the pendency of the continuance of the oral observations of the High Court for non implementation of the decision of the State Level Settlement Committee in Ram Sharan V. State DBCWP No.2658/2003, further actions of the respondent JDA are not in conformity with the stay order. 16 CWP No.1952/2006 Gopal Lastly Mr. Vyas submits that the illegality cannot be revived by court of law and this Court under article 226 of the Constitution of India has no jurisdiction to pass an order to restore an illegality. On the aforesaid issues, Mr.Bharat Vyas, Addl. AG has cited the following judgments: 1. Mulraj V. Murti Raghunathji Maharaj (AIR 1967 SC 1386) 2. Sri Ram Charan Das V. Pyare Lal AIR 1975 Allahabad 280 3. Abdul Gafoor V. R.T.A. Ajmer & ors.1992(1)WLN 28 4. Ganesh Mal Surana V. State of Raj. AIR 1996 Raj. 222 5. Anil Kumar and others V. State of Raj.AIR 1998 Raj. 202 6. AM Alison V. B.L.Sain (AIR 1957 SC 227) 7. Venkateshwara Rao V. Govt. of A.P. (AIR 1966 SC 828) 8. Gani Mohd. V. STAT (1976 WLN 174) Dharmendra Kumar Jain V. State of Rajasthan and 35 connected matters SBCWP No.2800/2002. 9. Rajasthan Housing Board V. G.S.Investment (2007) 1 SCC 477. (21) On the basis of the pleadings of the parties, the following core questions arise for adjudication in the present writ petition: Question No.1 Whether alternative remedy is a bar in case where the principles of natural justice have been violated and where the dispute is hanging fire for more than a decade and that too when this Court directed to decide the representation in earlier writ petition and compliance was made by executing Registry of the sale lease / deed dated registered on as corrected on 17.10.2005, 18.10.2005, and thereafter JDA passed order dated of 19.1.2006, 4.3.2006 cancellation of Registry of the sale lease deed / ? 17 CWP No.1952/2006 Gopal Question No .2 Whether a person authority who which held auction in / / violation of the interim order maintaining status quo passed in the case of third party has a right to contend that the auction was an illegality being contrary to the interim order and confer no right on the subsequent purchaser petitioners who were ( Ð not party in the earlier litigation wherein interim order was passed although subsequently the interim order remained no ) more in force on account of the dismissal of the writ petition ? Question No .3 Whether a party to the