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[Citation : 2009(3) RLW 2295 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Anukampa Avas Vikas & Anr. Vs. State of Raj. & Anr. (Asopa, J.)
HON'BLE PREM SHANKER ASOPA, J.
Anukampa Avas Vikas Pvt. Ltd. (M/s.) & Anr.
Versus
State of Rajasthan and Anr.
S.B. Civil Writ Petition No. 1952 of 2006, decided on 05.09.2008
(Paras 12, 21, 24, 27, 49 & 50)
¼d½ Hkkjr dk lafo/kku] 1950] vuqPNsn 226( t;iqj fodkl izkf/kdj.k vf/kfu;e] 1982] /kkjk 83 & cspku foys[k & fu"iknu & jn~ndj.k & izkd`frd U;k; dk fl)kUr dk guu & vihy dk oSdfYid vuqrks"k dh miyC/krk & fjV ;kfpdk dh iks"k.kh;rk dk otZu & vfHkfu/kkZfjr & cspku foys[k@iV~Vk foys[k ds jn~ndj.k ds iwoZ uksfVl ugha fn;k x;k vr% ;g izkd`frd U;k; ds fl)kUr ds }kjk vkPNkfnr gS vkSj oSdfYid vuqrks"k dh miyC/krk ls oftZr ugha gS & ;kfpdk iks"k.kh; gS & izfroknh dk vk{ksi fujLr fd;kA
¼in la[;k 12] 21] 24] 27] 49 ,oa 50½
(b) Constitution of India, 1950, Art. 226 — Auction sale — Interim order of status qua by Court — Auction held in violation of — Effect on right of third party — Cancellation of Auction — Justifiability — Held — An order is void if it is violative of direction given by Court — Interim direction is voidable against the subsequent purchaser because who was not party in earlier litigation wherein interim order was passed — Same will have no effect on subsequent purchaser (Petitioner No. 1) because same become non est on dismissal of earlier writ.
(Paras 21, 28 to 33 & 51)
¼[k½ Hkkjr dk lafo/kku] 1950] vuqPNsn 226 & fuykeh fcØh & U;k;ky; }kjk ;FkkfLFkfr dk varfje vknsk & ds guu esa fuykeh dk vk;kstu & r`rh; i{k ds vf/kdkj ij izHkko & fuykeh dk jn~ndj.k & vkSfpR;rk & vfHkfu/kkZfjr & vknsk kwU; gS ;fn ;g U;k;ky; }kjk fn;s x;s vknsk ds vfrØe.k esa gS & varfje funsZk ikpkrorhZ [kjhnkj ds fo:) kwU;dj.kh; gS D;ksafd og iwoZ ds eqdnesa esa i{kdkj ugha Fkk ftlesa varfje vknsk ikfjr fd;k x;k Fkk & mDr dk izHkko ipkrorhZ [kjhnkj ¼izkFkhZ la[;k 1½ ij ugha gksxk D;ksafd iwoZ okys fjV ds vLohdj.k ds ipkr~ og izHkkoghu gks x;kA
¼in la[;k 21] 28 ls 33 ,oa 51½
(c) Constitution of India, 1950, Art. 226 — Sale-deed — Registry — Illegality committed by saller — Cancellation there after by party — Whether a party has right to cancel the same? — Held — A party to registry of sale has no right to cancel the same and normal course open is to file a civil suit for cancellation — Jaipur Development Authority wrongly declared sale-deed illegal — Action of respondent cannot be binding against other party. (Paras 21, 34 to 38, 52 & 53)
¼x½ Hkkjr dk lafo/kku] 1950] vuqPNsn 226 & cspku-foys[k & iath;u & cspkudrkZ }kjk voS/krk dkfjr & i{kdkj }kjk blds ckn jn~ndj.k & D;k i=dkj dks bls jn~n djus dk vf/kdkj gS\ & vfHkfu/kkZfjr & cspku iath;u ds ,d i{kdkj dks bls jn~n djus dk vf/kdkj ugha gS vkSj jn~ndj.k gsrq lkekU; Øe esa flfoy okn isk djus dh Lora=rk gS & t;iqj fodkl izkf/kdj.k cspku-foys[k dks xyr :i ls voS/k ?kksf"kr fd;k & izfroknh dh dk;Zokgh r`rh; i{kdkj ds fo:) vkc)dj ugha gks ldrhA
¼in la[;k 21] 34 ls 38] 52 ,oa 53½
(d) Constitution of India, 1950, Art. 226 — Registered sale-deed — Concellation of — Illegal action taken by Jaipur Development Authority to dispossess petitioner — Mental harassment — Jaipur Development Authority Official came on spot with police force and demolished the construction forcibly — Challenged thereto — Held — Jaipur Development Authority was acting illegally even after dismissal of earlier writ petition by delaying the execution of registration of sale-deed in accordance with law and again acted illegally by taking steps for cancellation of registered sale-deed without issuing notice — Action of JDA in making attempt to dispossess the petitioners is declared illegal — Cancellation of sale-deed will have no effect upon the petitioners and they will enjoy all rights flowing from the sale-deed executed on 17.10.2005. (Paras 55 & 56)
Writ petition allowed.
¼?k½ Hkkjr dk lafo/kku] 1950] vuqPNsn 226 & iath—r cspku-foys[k & jn~ndj.k & izkFkhZ dks csn[ky djus gsrq t;iqj fodkl izkf/kdj.k }kjk voS/k dkjZokbZ fd x;h & ekufld ijskkuh & t;iqj fodkl izkf/kdj.k ds vf/kdkjh ekSds ij iqfyl cy ds lkFk vk;s vkSj cyiwoZd fuekZ.k fxjkus yxs & bldks pqukSrh & vfHkfu/kkZfjr & t;iqj fodkl izkf/kdj.k us iwoZ fjV ;kfpdk ds vLohdj.k ds ipkr~ Hkh voS/k dkjZokbZ djrs gq, dkuwu ds vuqlkj cspku-foys[k ds iath;u dk fu"iknu djus esa foyac dj jgk Fkk vkSj iqu% uksfVl tkjh fd;s fcuk iathd`r cspku-foys[k dks jn~n djus gsrq csn[ky djus dh dksfkk gsrq t;iqj fodkl izkf/kdj.k }kjk dh x;h dkjZokbZ voS/k ?kksf"kr dh tkrh gS & cspku-foys[k dk jn~ndj.k dk izHkko izkfFkZ;ksa ij ugha gksxk vkSj os yksx 17-10-2005 dks fu"ikfnr cspku-foys[k ls mRiUu lHkh vf/kdkjksa dk miHkksx djsaxsA ¼in la[;k 55 o 56½
fjV ;kfpdk Lohdkj dhA
Key Points: - Question of whether absence of prior notice before cancellation of a sale/lease registry violates natural justice and whether alternative remedy bars writ petition [references discuss: paras (a)-(d); sections on natural justice and bar of writ, including Gujarat Ambuja Cement Ltd. and Whirlpool principles] (!) (!) (!) (!) - Whether a party who held auction in violation of an interim status-quo order has rights affecting subsequent purchasers and whether interim orders merge or become non est upon final dismissal (!) (!) (!) (!) - Whether a party to a registry can cancel after execution/delivery or must seek civil cancellation for illegality, and whether revival of auction restores illegality or not; and whether the sale/lease deed remains in force despite cancellation actions (!) (!) (!) (!)
Hon'ble ASOPA, J.—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 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, therefore, 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 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 remainder dated 24.8.1994 (Anx. 5).
(4). In the mean while, 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 copy of the aforesaid judgment dated 26.9.1994 with a request to the JDA to take an early
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