1 D.B. CIVIL SPECIAL APPEAL(WRIT) NO.692/2006 (Sayar Chand vs. The Director & Ors.) DATE OF ORDER:14.05.2007 HON'BLE MR.JUSTICE RAJESH BALIA HON'BLE MR.JUSTICE BHANWAROO KHAN Mr.Yuvraj Senal, for the appellant Mr.Pankaj Bohra for Mr.Ravi Bhansali, for the respondents BY THE COURT(PER HON'BLE MR.BALIA J.) Heard learned counsel for the parties. This appeal is directed against the judgment of the learned Single Judge dated 2.8.2006 by which the writ petition filed by the appellant was dismissed. The shop in question situated at Sub Mandi Yard, Mathania affiliated to Krishi Upaj Mandi, Jodhpur was allotted to appellant on 1.3.1996 and the appellant had deposited three months rent as lease money in advance but did not pay any amount thereafter. On 25.8.2000 the petitioner received a notice for demand of lease amount plus interest plus recovery charges from the Agriculture Marketing Society. The principal amount was Rs.1,28,100/-. The petitioner preferred S.B.Civil Writ Petition No. 467/2003 against the said recovery proceedings. On 14.2.2003 2 the aforesaid writ petition was disposed of directing the Director, Agriculture Marketing for the State of Rajasthan the respondent No.1 in the said writ petition to adjudicate upon the issue involved and pass an appropriate order within a period of 8 weeks from the date of filing of certified copy of this order alongwith copy of the writ petition. Pursuant to aforesaid order the Director passed the impugned order Annexure-2 dated 30th September, 2003. While considering the fact that though allotment was made and possession was delivered to the petitioner on 1.3.1996, he has shown his unwillingness to continue as lessee on 27.7.98 and in that view of the matter he ordered for recovery of rent for the period from 1.3.96 to 31.7.98 only and charge interest thereon @ 3% per annum. Pursuant thereof the demand notice was issued vide Annexure-4 dated 24.9.2004 raising demand on account of lease money and interest. The lease amount has been paid by the petitioner and he has been contesting for charge of interest at the rate of 3% on the arrears of lease money. While the appellant urges that no interest is chargeable from him because the possession of the property was not given to him, the respondents relied on government circular dated 27.12.1991, which inter alia says that as per the decision taken in the meeting held under the Chairmanship of the then 3 Minister for Agriculture if an allottee of shop remains in default for more than 3 months, the rate of interest chargeable shall be 3% per mensem. The learned Single Judge has rejected the plea of the appellant by referring to the decision dated 29th June, 1991. Apparently the order has been passed merely rejecting the stay petition but having decided that the rate of interest is in accordance with the Circular and the appellant is not entitled to any relief, the writ petition itself has been virtually disposed of because that is only the issue raised in the writ petition. The same contention has been raised before us. The petitioner has referred to his letters dated 25.7.96 and 29.7.98 by which he claims to have informed the respondent that he had never been delivered possession of the shop in question and, therefore, nothing was due from him not to say of interest. We have directed the respondents to produce the said letters and the same have been produced before us. In the letter dated 25.7.96 there is no whisper about the fact that allottee has not been delivered possession of the shop in question. The letter only raises a grievance that the Sub Yard of Mandi has not been made operative and until the Sub Yard is made operative the shop keeper is unable to pay the 4 rent. He admits that he had deposited three months rent. It is for the first time by the second letter dated 29.7.98 he alleges that on the date when he was allotted the shop, he was not delivered possession of the shop rather the respondents orally told him that they will deliver possession of the shop to him with lock and key as and when the Mandi Yard is made operative. He also expressed that he does not want to keep the shop. Apparently raising no dispute for charge of lease amount for this period and the two letters are enough to sustain the order of the Director, Agricultural Marketing that he was in possession of the shop until letter dated 29.7.98 in which for the first time he expressed that he does not want to continue with the leased shop. Therefore, the Director has ordered for recovery of lease amount for the period 1.3.96 to 31.7.98 only. So far as interest is concerned, the respondents have also placed on record the lease agreement dated 1.3.96. That lease agreement is of much later date than the government circular issued in pursuance of decision taken in a meeting held under the Chairmanship of Agriculture Minister dated 29.6.91. The rate of interest circulated vide Annexure-5 had not been included as part of lease agreement but instead flat rate of 18% was chargeable on the delayed payment of lease money. There is no other provision which provides for rate of interest to be 5 charged on the delayed payment of interest. Apparently the lease agreement having been entered after the government circular dated 27.12.91 and the circular having no statutory force, the respondents cannot recover interest at the rate higher than 18% per annum agreed under lease document as per term of lease. To that extent the appellant is entitled to get relief. His further demand to direct the respondents to charge the reasonable rate of interest @ 12% for aforesaid period obviously cannot be accepted in view of the specific rate prescribed on the delayed payment. Hence the appeal as well as the writ petition is disposed of with the direction to recompute the rate of interest on delayed payment of rent for the period 1.3.96 to 31.7.98 in terms of the order of Director at the rate of 18% per annum in terms of the lease agreement and issue a fresh demand, such shall be duly paid within 15 days from the date of receipt of said demand notice. No cost. (BHANWAROO KHAN) J. (RAJESH BALIA) J. BKS/-