Patangali vs State Of U.P.
2012 Latest Caselaw 2443 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
(Judgment reserved on 28.05.2012)
 
Judgment delivered on 01.06.2012)
 

 
Court No. - 4
 
Case :- MISC. SINGLE No. - 265 of 1993
 
Petitioner :- Patanjali Bajpai
 
Respondent :- State Of U.P. and another
 
Petitioner Counsel :- S.C.Misra
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the parties.

Petitioner is an influential person as admitted by himself in Para-26 of the writ petition, which is quoted below:

"That the petitioner meanwhile met the then Minister and approached the then Chief Minister through some legislators known to the petitioner. The Chief Minister's Secretariat and the Minister's office wrote several letters to the then Vice Chairman of the respondent No.2 directing him to implement the order passed by the State Government (respondent No.1) and to send them the compliance report. Realising that the matter could not be delayed any further, the respondent No.2 issued a letter dated 19.11.1987, to the effect that the plot is allotted to the petitioner @ Rs.2000/- per square metre."

(Respondent No.2 is Kanpur Development Authority.)

To be influential means to be rich. In view of this, the assertion in Para-3 of the writ petition that "Bharat Petroleum Corporation with a view to provide certain services under the Social Objective Scheme based on 20-Point Programme, invited applications for a motor-spirit (M.S.) retail outlet at Kanpur to be situate within two kilometers of either side of Baradevi Chauraha towards Govind Nagar Road, Kanpur and as the pump was reserved for unemployed engineering graduate, petitioner was selected for the grant of the retail out let after being selected in the interview is rather bewildering. It is not social objective. It is pure and simple capital favour granted to choicest person(s).

Unless the State adopts unabashedly commercial attitude while dealing with wealthy persons, it can neither have sufficient resources nor inclination to do social justice to really needy persons.

However, for the purposes of decision of this writ petition it is not relevant to decide as to why out of thousands (if not lacs) of unemployed engineers, petitioner was selected for grant of the retail outlet.

Letter of intent was issued in favour of the petitioner on 29.12.1982, copy of which is Annexure-I to the writ petition. Condition No.1 was that petitioner should procure a suitable plot either purchased by him or leased to him for grant of 10 years with the dimensions of 46m X 30m (138 square meters) within a period of four months.

Neither in the said letter of intent there could be a direction nor in fact there was any direction that Kanpur Development Authority (K.D.A. in short) respondent No.2 in this writ petition should grant requisite plot to the petitioner on lease. Petitioner or the State Government or any other authority could not compel the K.D.A. to allot requisite plot to the petitioner on the basis of the said letter of intent. Petitioner filed an application for allotment of suitable plot before K.D.A. on 17.01.1983 (Annexure-II to the writ petition). Petitioner sent several reminders as mentioned in Para-8 of the writ petition. Thereafter, petitioner personally met senior officers of K.D.A. (Para-9). K.D.A. identified plot No.30-G, Sabzimandi, O-Block, Kidwai Nagar, Kanpur for allotment to the petitioner. The said plot was sought to be auctioned but proper persons did not come forward to participate in the auction hence auction was not held. State Government through letter dated 25.09.1984 (Annexure-7 to the writ petition) directed the K.D.A. to allot the plot in question to competent person on payment of lease rent (Para-15 of the writ petition). Annexure-7 was written on the request of another Oil Company i.e. Indian Oil Corporation. In the said letter also reference is made to social objective and grant of suitable plot on lease rent, instead of auction, to those persons who had been selected by Oil Companies to run retail outlets. Here also the Court completely fails to understand as to why this double enormous concession was granted to very very few selected people and that also in the name of social justice. Owner of a petrol pump is at least a millionaire if not multi-millionaire. Direction of the State Government for providing land on concessional basis in order to help a person become millionaire or multi-millionaire is shocking to the conscience of the Court and against the spirit of the Constitution.

In Para-16 of the writ petition, it is mentioned that three plots were offered to Indian Oil Corporation for establishing retail outlets on 17.10.1984 at the rate of Rs.400/- per square meter including the plot which was earmarked by the K.D.A. for allotment to the petitioner (30-G, Sabzimandi O-Block, Kanpur) even though the said plot was to be developed by Bharat Petroleum Corporation (Para-16 of the writ petition). K.D.A. wrote letter on 18.06.1986 to the State Government seeking instructions (Para-18 of the writ petition). The State Government on 27.06.1986 (Annexure-IX to the writ petition) intimated the K.D.A. to allot the plot in question to the nominee of Bharat Petroleum Corporation i.e. the petitioner. In the said letter it was mentioned that on the current market value, the land shall be allotted. This letter is anchor sheet of petitioner's case. The money deposited by the Indian Oil Corporation for the plot in question was refunded, however it was not allotted to the petitioner by respondent No.2 (Para-21 of the writ petition). Rate of the land in the area was revised from Rs.346/- per square meter to Rs.2000/- per square meter in 1987 (Para-22 of the writ petition). The K.D.A. wrote a letter on 19.11.1987 (Annexure-XI to the writ petition) to the petitioner for allotment of the plot in question at the rate of Rs.2000/- per square meter (Para-23 of the writ petition). The K.D.A. had earlier written a letter on 03.03.1987 to Bharat Petroleum Corporation stating that it was not possible to allot the plot in question to the petitioner, however it could be allotted to Bharat Petroleum Corporation if it deposited a sum of Rs.5,57,200/- (at the rate of Rs.400/- per square meter). Petitioner gave reply to the letter of the K.D.A. dated 19.11.1987 on 02.12.1987, copy of which is Annexure-XII to the writ petition. In the said letter, it is mentioned that Joint Secretary (Sale), K.D.A. during oral discussion enquired from the petitioner as to whether he was ready to take the land at the rate of Rs.1000/- per square meter and on which petitioner had given consent for the same orally as well as in writing. (Rs.1000/- per square meter was the rate for residential plots and for commercial plots rates were double) Petitioner clearly objected to payment of Rs.2000/- per square meter and stated that he would accept the land at the rate fixed by the Government. However, in Para-27 of the writ petition itself it is mentioned that this letter of the petitioner was not acknowledged.

Thereafter, the K.D.A. divided the plot into two portions and issued another letter to the petitioner on 11.01.1988 offering part of the plot in question admeasuring 832 square meters at the rate of Rs.2000/- per square meter and petitioner was required to deposit one fourth of the price failing which nothing further would be done (Para-28 of the writ petition). Petitioner under duress and protest deposited the money and sent letter of acceptance on 15.01.1988, copy of which is Annexure-XIV to the writ petition and thereafter the K.D.A. issued a letter of allotment on 16.01.1988, Annexure-XV to the writ petition (Para-29 of the writ petition). In Annexure-XIV, it is mentioned that petitioner had agreed under protest to the terms of letter dated 11.01.1988 and had deposited Rs.4,16,000/- with the Bank. Allotment order was requested to be issued. In the allotment letter dated 16.01.1988 (Annexure-XV to the writ petition) land was allotted at the rate of Rs.2000/- per square meter on 90 years lease. Thereafter, petitioner on 16.01.1988 (the same date on which allotment letter of part of the plot had been issued in his favour) gave another letter requesting for allotment of the remaining land of 561 square meters of the said plot. Copy of the said letter is Annexure-XVI to writ petition. Even though at the top of the letter words 'without prejudice' are written however no protest is made in the body of the letter. The entire letter which is addressed to the Secretary (Sales), K.D.A. is quoted below:

"Dear Sir,

I, had been allotted a part of premises no.G-30, 'O' Block, Kidwai Nagar, Kanpur, vide your letter no.1092/D/Bhu dated 11.1.88, admeasuring 832 Sq. mtrs. In fact, the entire plot admeasures 1393.2 Sq. mtrs. This part measure 561.8 Sq. mtrs. I am prepared to purchase this part also on the same terms on which the major portion of the plot has been allotted to me as aforesaid. I shall be greatful, if allotment of the remaining part of the plot admeasuring 561.8 Sq. mtrs. is made at the earlier to enable me to deposit the payable amount."

The petitioner deposited the requisite amount on 26.02.1988 and second letter of allotment for remaining part of the plot was issued on 08.03.1988 copy of which is Annexure-XVII to the writ petition acknowledging deposit of one fourth amount i.e. Rs.2,80,600/- and directing for payment of the remaining amount of Rs.8,41,800/- at 15% annual interest in six years of twelve six monthly instalments each. Allotment/ lease was made for 90 years.

It is stated in Para-31 of the writ petition that on 22.03.1988, petitioner gave a letter that the rates should be charged from him as were prevalent on 27.06.1986 when Government wrote letter to K.D.A. (Annexure-IX)

Bharat Petroleum Corporation cancelled the letter of allotment of retail outlet on 30.11.1988 (Para-33 of the writ petition), however the allotment by Bharat Petroleum was revived on 02.01.1989 with the condition that petrol pump was established by 31.03.1989, which was further extended till 31.03.1990.

On 17.03.1988 petitioner requested the K.D.A. to deliver possession (Annexure-XXII to the writ petition). Agreement was entered into in between the K.D.A. and the petitioner, copy of which is Annexure-XXV to the writ petition dated 01.03.1989 in which the rate is mentioned as Rs.2010/- per square meter. It is mentioned that balance amount will be paid within six years with 15% interest and that land had been allotted for the purpose of constructing building for petrol pump and maintaining as such during the period of lease under protest.

In Para-40 of the writ petition, it is stated that possession was delivered on 09.03.1989.

However, lease deed was executed on 20.12.1989, copy of which is Annexure-XXIX to the writ petition. In Annexure-XXIX, the rate mentioned is Rs.364/- per square meter. In Para-47 of the writ petition, it is mentioned that petrol pump became functional w.e.f. 12.02.1990. Petitioner did not pay single penny afterwards. Annexure-XXX to the writ petition is a letter dated 01.12.1992. In the said letter it was mentioned that Chairman, K.D.A. on 13.12.1989 passed some order that the plot would be allotted to the petitioner at the rate as prevalent in 1986 i.e. Rs.364/- per square meter, however, that order was against rules and regulations, hence operation of the same was suspended. Petitioner was directed to submit his reply by 11.12.1992. The letter was written by the Government, respondent No.1 sent on behalf of Special Secretary. Petitioner did not send any reply but he continued to demand refund of excess payment. Another notice was given to the petitioner by the Government on 05.01.1993 requiring the petitioner to appear on 29.01.1993. In Paras 50 and 51 of the writ petition, it is stated that petitioner appeared on 29.01.1993 and requested for inspection of the record. It is further stated that the request was summarily rejected. Petitioner was granted further time till 04.02.1993. Through this writ petition prayer of quashing notices dated 01.12.1992 and 05.01.1993 has been made. Prayer for refund of about Rs.1,50,000/- has also been made.

After deposit of one fourth amount petitioner did not pay anything further.

In the counter affidavit filed by the K.D.A., in Para-3-l, it has been stated that the decision dated 13.12.1989 to allot the land to the petitioner at the rate prevalent in 1986 was taken due to concealment of facts on the part of the petitioner himself and on coming to know correct facts, the Vice Chairman through letter dated 04.01.1990 decided not to refund any amount.

From the above, it is quite clear that there was absolutely no question of allotting the land to the petitioner on the rates prevalent on a date prior to the date of actual allotment. If the Government recommends allotment of plot to a particular person it is to be allotted at the rates prevalent on the date of allotment. Moreover, petitioner willingly accepted the offer of allotment at the rate of Rs.2000/- per square meter and requested for allotment of the remaining part of the plot at the same rate. Petitioner was estopped from asserting that he was entitled to allotment on old rates. There is absolutely no question of making payment and accepting the order of allotment receiving possession of the land starting petrol pump and earning profit under protest. After deriving full benefit by making construction of the petrol pump and making it operational, petitioner could not turn back and say that he must be permitted to pay at old rates.

The doctrine of estoppal by conduct (declaration, act or omission) or doctrine of election or of prohibition against blowing hot and cold or approbate and reprobate squarely applies to the facts of the instant case.

In this regard reference may be made to the following authorities:

(i) Kodoth Ambu Nair v. Echikan Cherekere Kelu Nair, AIR 1933 PC 167

In this case Privy Council after quoting one of its earlier judgments held that one cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.

The petitioner obtained possession under the transaction through which land was allotted to him on 90 years lease at the rate of Rs.2000/- per square meter and started running petrol pump thereupon. Afterwards he cannot say that the transaction was void as the land should have been allotted to him at the rates of 1986, which were less than one fifth of Rs.2000/- per square meter.

(ii) Pannalal Vs. State of Rajsthan, AIR 1975 SC 2008

In this case Supreme Court held that a person who entered into a contract with the State and its agencies and fully exploited to its advantage and to the exclusion of others the benefit under the same, cannot resile from express obligation undertaken by him on the ground that same were extremely onerous and arbitrary.

(iii) R.K. Kawatra, v. D.S.I.D.C., AIR 1992 Delhi 28

In this case some persons under the old scheme of allotment deposited the amount. The scheme was not finalised. Thereafter, new scheme was introduced providing for higher amount to be paid for the allotted land. Those persons taking benefit of the new scheme deposited higher amount after adjustment of deposit made under old scheme. It was held that those persons were bound by the new scheme.

(iv) Vijay Raj Kailash Chandra and others Vs. State of Rajasthan and Ors., AIR 2004 Raj. 20

After placing reliance upon several Supreme Court authorities, it was held that the petitioners having taken benefit of the acceptance of their bids and consequent possession of the shops, could not turn back and urge that the policy of auction of the shops was untenable. In the said case, shops of Krishi Utpadan Mandi Samiti had been taken by the petitioners in auction but after a Division Bench held that the process of auction was not legal, petitioners demanded back the money which they had paid in auction. Para-11 of this authority is quoted below:

"11. Having taken benefit of the acceptance of their bids and consequent possession of the shops the appellants cannot turn back and Urge that the policy of putting the shops to auction was untenable. The learned single Judge applying the principle of ac quiescence, rejected the challenge of the appellants. The learned single Judge while dismissing the writ petitions placed reliance on various judgments of the Supreme Court, namely, Pannalal Binjraj v. Union of India, AIR 1957 SC 397, Maj. Chandra Bhan Singh v. Latafat Ullah Khan, AIR 1978 SC 1814, Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, State of Punjab v. Krishna Niwas, AIR 1997 SC 2349, State of Orissa v. Narain Prasad, (1996) 5 SCC 740) : (AIR 1997 SC 1493), State of Rajasthan v. Anil Kumar Sunil Kumar & Party, (2000) 4 JT (SC) 186 : (AIR 2000 SC 1441) and Kali Prasad v. Deputy Director of Consolidation, (2000) 6 SCC 640 : (AIR 2000 SC 3722), wherein it was held that once an order is passed and accepted by the party and from that order it derives benefit and advantage for sometime, the party cannot be permitted to assail the validity of that order. The learned single Judge, therefore, rightly disallowed the appellants from assailing the validity of the policy of auction by virtue of which they have been deriving benefit of the possession of the shops and took advantage by utilising them for trading purpose. The parties entered into the bargain on the footing that the appellant shall pay the agreed rent based on bids given by them in open auction. Since the appellants seek to wriggle out of their basic obligation, the entire bargain will perish. In that event, as a necessary corollary the appellants will be required to give up the possession of the shops."

(v) Bareilly Development Authority v. Vrinda Gujarati and Ors., 2004 (4) SCC 606

This authority has been cited by learned counsel for the K.D.A. in which it has been held that allottees of flats after giving undertaking to pay the enhanced amount and after taking possession of the flats cannot be allowed to refuse to pay on the ground that delay was on the part of the Development Authority, hence it could not be permitted to realise higher amount and allottees should be allotted the flats at the cost which was initially advertised by the authorities.

Order dated 13.12.1989 passed by Chairman and lease deed, Annexure-XXIX dated 20.12.1989 were pure fraud committed by the petitioner and Sri B.B. Sinha, the then Chairman in collusion with each other. In my opinion, neither State Government could recommend grant of land on lesser rate nor in fact in the communication by the State Government it was mentioned that even if actual allotment took some time still it should be made on the rates prevalent on the date on which letter was written by the State Government dated 27.06.1986 Annexure-IX to the writ petition.

Petitioner had himself written a letter on 31.01.1987 to K.D.A. which he did not annex along with the writ petition. It has been annexed as Annexure-VIII to the additional counter affidavit filed by the K.D.A. In that letter he mentioned that the plot in dispute was a commercial block as a whole and as per K.D.A.'s revised rates for the above site of Rs.800/-, 900/- and 1000/- per square meter, he was ready to take the site at the rates desired by him without prejudice. The report was called for as to what rates were prescribed for residential plots and commercial plots. It was reported that cost of commercial plots is double than the cost of residential plots. Decision dated 13.12.1989 executing the lease deed on reduced price was taken by Sri B.B. Sinha, the then Chairman of K.D.A. and information was sent to the Government on 20.12.1989, Annexure-CA-18 to the additional counter affidavit. The lease deed was executed on the same date without waiting for reply of State Government. However, State Government restrained the K.D.A. from refunding the amount to the petitioner, which is contained in Annexure-CA-19 to the additional counter affidavit.

Accordingly, it is abundantly clear that a fraud was played by the petitioner and Sri Sinha, the then Chairman of K.D.A. Relief claimed in the writ petition cannot be granted on this additional ground. It has been stated in Para-35 of additional counter affidavit that the amount of Rs.1,24,85,011/- was payable by the petitioner till 31.12.2010. Chart for the same had also been enclosed.

Accordingly, it is held that petitioner was liable to pay at the rate of Rs.2010/- per square meter.

As the petitioner himself approached the Court against the show cause notice, raised the pleas on merit and invited the court to decide the matter on merit, hence this decision on the merit holding against the petitioner is sufficient and now no further decision is required to be taken by the State or K.D.A. Under somewhat similar circumstances, Supreme Court in M.M.S. Fernandes and others Vs. Erasmo Jack D.S., AIR 2012 SCW 2162 = JT 2012 (3) SC 451 (Paras 82 and 83) has held that if a person in possession seeks injunction against his eviction except in accordance with law and in the said suit it is held that plaintiff has got no right to remain in possession then the decision is sufficient and thereafter defendant need not file any suit for possession or declaration and after the decision against the plaintiff in such suit for injunction, he is liable to eviction.

For non-payment of lease amount in accordance with allotment letters dated 16.01.1988 and 08.03.1988 and agreement for lease dated 01.03.1989, lease stands forfeited and petitioner is liable to eviction. However on the principle of Section 114, Transfer of Property Act petitioner is granted time till 31.07.2012 to deposit the entire unpaid three fourth amount with 18% interest failing which he would be liable to eviction immediately. Petitioner shall deposit an amount of Rs.1.5 crores with K.D.A. by 31.07.2012. Meanwhile exact calculation shall be made by the K.D.A. and supplied to the petitioner. The amount over and above Rs.1.5 crores in accordance with the calculation of K.D.A. shall be deposited by the petitioner by 31.10.2012. In case of default D.M. Kanpur Nagar shall positively evict the petitioner on 01.08.2012 or 01.11.2012 as the case may be and deliver possession of the plot in question to the K.D.A.

Sri B.B. Sinha, the then Chairman of K.D.A. if alive is liable to pay Rs.5 lacs as cost to the K.D.A. which shall be recovered by the Collector concerned like arrears of land revenue within two months and made available to the K.D.A.

Writ petition is accordingly disposed of.

Order Date :- 01.06.2012

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