Hon'ble Attau Rahman Masoodi,J.
1. We have heard Shashi Nandan and B. Dayal Senior Advocates assisted by Sri Sudeep Harkauli for the petitioner. Sri Ramendra Pratap Singh appears for respondent Nos.1 and 2 - Greater Noida Industrial Development Authority. Learned standing counsel appears for State respondent.
2. The petitioner is a totally blind senior citizen. He applied for allotment of a plot, in response to an advertisement issued by Greater Noida Industrial Development Authority, Gautam Budh Nagar (in short, GNIDA) in a scheme for establishment of institutions i.e. Engineering/Medical/ Vocational Institutes/Centre forPperforming Arts, Social & Cultural Centres, Entertainment/Leisure Complexes, Corporate Plazas/Office Complexes, and any other Specialised Institutional/Commercial activities in Grater Noida area for 90 years of lease, on as is where is basis. He deposited Rs.10,000/- as registration amount. A letter was issued to the petitioner on 18.12.2001 by the Officer on Special Duty, GNIDA, reserving 2,000 sq. mt of land in Grater Noida for establishment of a 'Social and Cultural Centre', on a total premium of the plot at Rs.12,80,000/- (Rupees Twelve Lakhs Eight Thousand only). The petitioner was required to deposit 10 % of the total premium of the plot, amounting to Rs.1,28,000/- which includes the amount of Rs.10,000/- deposited towards registration fee, within thirty days. The petitioner deposited 10 % of the total premium on which a letter of allotment was issued on 16.01.2002, reserving a plot in his favour.
3. By the letter of allotment dated 18.12.2001, the Officer on Special duty, GNIDA, confirmed the reservation letter of a plot measuring 2000 sq. mtr for establishment of a 'Social and Cultural Centre', providing that allocation of plot shall be intimated to the petitioner in due course of time. According to payment schedule given in the letter of allotment, the petitioner was required to deposit Rs.2,56,000/- (20 % of the total premium) as allotment money by 17.03.2002. The remaining amount was to be deposited in 12 six monthly instalment of Rs. 1,12,810/- each beginning from 15.09.2002 to 15.03.2008. Clause 4 of the allotment letter provided that the allottee will be required to complete the constructions within one year from the date of allotment.
4. The petitioner vide his letter dated 30.01.2002 requested for concessional rate of allotment, under Section 43 of the PERSONS WITH DISABILITIES (EQUAL OPPORTUNITES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 - Act 1 of 1960. Section 43 of the Act reads as follows:-
"The appropriate Government and local authorities shall by notification frame schemes in favour of persons with disabilities for the preferential allotment of land at concessional rates for a. house;
b. setting up business;
c. setting up of recreation centres;
d. establishment of special schools;
e. establishment of research centres;
f. establishment of factories by entrepreneurs with disabilities"
5. A long line of correspondence took place between the petitioner and GNIDA, in which without considering the repeated requests of the petitioner for giving concessional rates of allotment, the GNIDA insisted for payment of instalments, as per payment schedule mentioned in the allotment letter. The petitioner had deposited only the registration amount of Rs.10,000/- and 10 % of premium. He did not deposit the remaining 20 % of premium and the first three instalments, on which the reservation letter was cancelled by the Deputy Chief Executive Officer on 20.12.2005. The petitioner filed a writ petition No. 50201 of 2004, which was disposed of with directions as follows:-
"Petitioner is a blind person and under the priority quota, he was offered for allotment of a plot by letter dated 16.01.2002, by the Greater Noida. Petitioner failed in depositing the installments. On account of the aforesaid reasons, the allotment of the petitioner was cancelled.
Considering the facts that the petitioner is a blind person and is entitled for priority, this Court taking a lenient view for the aforesaid reasons and on undertaking of petitioner's counsel, we provide that in case the petitioner deposits six lacs rupees within a period of one month from today and six lacs rupees thereafter within a month, the plot shall be re-allotted to the petitioner and possession shall be handed over to the petitioner after the settlement of the final amount by the Greater Noida.
Till then the order of cancellation is kept in abeyance and the plot in question shall not be allotted to anyone else.
With the aforesaid directions, the present writ petition is finally disposed of."
6. The petitioner deposited Rs.6 lacs on 23.03.2009, and another amount of Rs. 6 lacs on 22.04.2009 (total Rs. 12 lacs) in compliance of the order of this Court dated 27.02.2009.
7. The GNIDA despite deposit of Rs. 12 lacs did not restore the allotment, on which the petitioner filed a contempt application No. 463 of 2010 (Jaikishan Aggarwal Vs. Mukul Singhal and another), in which notices were issued on 2.2.2010. The contempt application was disposed of after hearing Sri Ramendra Pratap Singh, learned counsel appearing for GNIDA, and after considering the compliance affidavit filed by Sri Mukul Singhal, Chief Executive Officer, GNIDA. The orders passed by the Court on 23.02.2010, and thereafter the order dated 10.03.2010, disposing of the contempt application No. 463 of 2010, are quoted as follows:-
Order dated 23.02.2010 in Contempt Application No. 463 of 2010 "Heard Sri B. Dayal, learned counsel appearing for the applicant and Sri Ramendra Pratap Singh, Advocate, has put in appearance on behalf of the opposite parties and has filed compliance affidavit on behalf of opposite party no.1.
The writ petition filed by the applicant was disposed of finally vide judgment and order dated 27th February, 2009 requiring the applicant to deposit an amount of Rs.12 lakhs within two months whereupon the plot would be re-allotted to the applicant and possession shall be handed over to the petitioner after the settlement of the final amount by the Greater Noida. The Division Bench further directed the order of cancellation shall remain in abeyance and the plot in question shall not be allotted to anyone else.
According to the counsel for the applicant, the amount of Rs.12 lakhs as directed by the writ court was deposited as per schedule. However, the opposite parties did not provide the final amount payable by the applicant and as a result applicant was compelled to file the contempt application. It is further submitted that despite the applicant having deposited a total amount almost Rs.14,56,000/- up till now but till date the opposite parties have not even communicated the plot number reserved for the applicant.
In the compliance affidavit, it is stated that as on date applicant is liable to pay an amount of Rs.31,02,969/- which is primarily amount of interest being charged from the applicant. Admittedly the value of the plot at the time of allotment was Rs.12,80,000/- and the applicant has already deposited more than Rs.14 lakhs and odd. The details regarding the calculation of interest etc. has not been given in the letter dated 18th February, 2010, Anneuxre C.A 8 to the compliance affidavit. Although the said letter mentions that the calculations have been made as per enclosed chart but the chart is not enclosed along with the affidavit. The letter further mentions that the amount of Rs.80,000/- would be charged as restoration charges.
The stereo type approach of the Greater Noida Authority is not at all appreciated by the Court. The writ Court had disposed of the writ petition taking into consideration certain special features of the case. It was expected of the Greater Noida Authority also to have taken a lenient view and accordingly raised the demand of final settlement but it appears that the authority has instead of taking lenient view has been more vindictive by raising all sorts of demand from the applicant. Further it appears that the interest has also been charged right up to February, 2010, although the judgement of the writ court is of February, 2009 thereby unnecessarily burdening the applicant of one year interest without any fault of the applicant but on account of fault and laches on the part of the opposite parties. It may be recorded that if the authorities insist on demanding interest as it apparently has done the Court will be compelled to pass an order for recovering of such interest from the salary of the opposite parties or other officer of the authority who may have been responsible for not issuing the settlement letter in time .
At this stage Sri Ramendra Pratap Singh, learned counsel for the opposite parties, has sought ten days time to obtain fresh instructions from the opposite parties and file an appropriate affidavit annexing the relevant documents regarding details of the plot reserved and the amount actually and reasonably due against the applicant. Time prayed for is allowed.
List on 10th March, 2010.
By the said date if the affidavit to the aforesaid effect is not filed, the opposite parties shall remain present before this court for proceeding further in the matter."
Order dated 10.03.2010 in Contempt Application No. 463 of 2010 "Heard Sri B. Dayal, learned counsel for the applicant and Sri Ravindra Kumar, Advocate, assisted by Sri Ramendra Pratap Singh, learned counsel appearing for the opposite party.
Today a supplementary compliance affidavit has been filed on behalf of the opposite party no1. In para 3 of the affidavit filed today it has been clearly mentioned that plot No.17 in Sector BZP Recreational Green, Greater Noida stands allocated to the petitioner. Further along with the affidavit is annexed calculation chart of the interest due from the petitioner on account of the default in paying the installment. Sri Ravindra Kumar, learned counsel for the opposite party has stated that the interest had been calculated up to 27th February, 2009 i.e. the date on which deposit has been made by the applicant pursuant to the directions of the writ court. Apparently the directions of the writ court have since been complied with.
Sri B. Dayal, learned counsel for the applicant has sought to argue that the settlement of interest by the opposite party is not correct and the applicant was entitled to certain benefits as he belongs to handicapped category and that the manner in which interest has been calculated is also not correct. In the opinion of the Court, this issue can be raised before the appropriate forum and cannot be adjudicated in contempt jurisdiction.
Sri B. Dayal has further submitted that the settlement has been made by Greater Noida without affording any opportunity to the applicant as such settlement is bad in law. Even this aspect of the matter can be examined before the appropriate forum and not in the contempt jurisdiction.
Necessary directions of the writ court having been complied with, no further consideration is required in the contempt application. Notices are discharged. Contempt application is accordingly consigned to record.
8. The petitioner challenged the order dated 10.03.2010, in Supreme Court on the ground that the Contempt Court should have decided the matter, and that the petitioner, even after having deposited an amount of Rs.14 lacs and odd, has not been given any benefit, nor the GNIDA has considered the repeated requests of the petitioner, to charge concessional rate for the plot to the petitioner being a blind person. In Supreme Court, the petitioner withdrew the SLP on 05.04.2010, for seeking appropriate relief before the High Court. The order of the Supreme Court dated 05.04.2010, in Special Leave to Appeal (Civil) No. 9113 of 2010 is quoted as below:-
'Learned Counsel appearing for the petitioner seeks permission to withdraw the above special leave petition with liberty to move the High Court for appropriate relief. The above statement is record. The special leave petition is dismissed as withdrawn."
9. The GNIDA in the affidavit dated 09.03.2010, filed in the contempt application, stated that in compliance of the judgement dated 27.02.2009 and the observations made by the Court in the order dated 23.02.2010, Plot No. 17, in Sector - BZP, Recreational Green, Greater Noida stands allocated to the petitioner. The letter of the GNIDA dated 09.03.2010, to that effect, has been brought on record.
10. Sri Ramendra Pratap Singh filed a supplementary counter affidavit annexing therewith a chart of calculation of defaulted instalments and penal interest @ 20 %, compounded every six months, and accordingly it is stated by GNIDA that after adjusting Rs.12,00,000/- in two instalments of six lacs each, the total amount is worked as on 22.01.2014 at Rs.38,58,103.43.
11. Learned counsel appearing for the petitioner submits that Rs.1,28,000/- deposited by the petitioner has not been adjusted, and that GNIDA has not considered the request of the petitioner as a blind person for providing allotment of plot on concessional rate in accordance with Section 43 of Act No. 1 of 1960. The petitioner could not deposit the instalments, as no plot number was identified, nor allotted till 09.03.2010. He submits that clause 4 of the allotment letter dated 16.01.2002, provides for completing the whole project within one year from the date of allotment, which was not possible unless the plot was identified and possession was given. The petitioner kept waiting for the response to the concessional rate of allotment in accordance with Section 43 of Act No.1 of 1960, which has not yet been considered and decided by GNIDA.
12. It is submitted that condition No. 3 of the payment plan in the brochure, provided that in case of a default in deposit of any money due to the Authority, the allottee/lessee would be required to pay interest @ 20. p.a on defaulted amount for defaulted period, to be compounded half yearly. In the present case, there was no default, as no plot was allotted to the petitioner, and secondly the petitioner cannot be treated to have committed default of any of the instalments between 16.01.2002 till 09.03.2010 - the date on which the respondents intimated the plot number and identified the location for the first time, although the petitioner has deposited Rs.6 lacs on 23.03.2009, and another amount of Rs. 6 lacs on 22.04.2009 - total Rs. 12 lacs in compliance of the order of this Court dated 27.02.2009, apart from Rs.128,000/- being 10 % of total premium of the plot. He submits that in any case, the interest can only charged when plot was allottted. The allotment of plot was made for the first time on 09.03.2010. He submits that in fact the subject area was not made available by the planning department, to the commercial department of the GNIDA upto the year 2004. In the correspondences, the GNIDA had admitted that since the planning department does not make the area available to the commercial department, the plot cannot be identified.
13. Sri Ramendra Pratap Singh, on the other hand, submits that the petitioner had applied for allotment of plot in an institutional area reserved by GNIDA for the purpose of allotment to institutions. The reservation was accepted by the petitioner. He failed to deposit premium of 20 % as allotment money and thereafter he did not deposit any of the instalments, which attracted penal interest, compounded half yearly in accordance with condition No. 3 of the payment plan in the brochure. On the repeated defaults committed by the petitioner, notices were given to the petitioner on 11.08.2004 and 09.09.2004 and finally the allotment was cancelled by letter dated 20.12.2005. He submits that the judgment of the High Court dated 27.02.2009, in Writ Petition No. 50201 of 2009, does not amount to allowing the writ petition, and giving any relaxation in deposit of defaulted amount of instalments and interest. The deposit of Rs.12 lacs made by the petitioner in pursuance to the order of the Court was to test his bonafides. It was to be adjusted in the final payment to be paid by the petitioner. The GNIDA has worked out the final payment at Rs.38,58,103.43 as on 22.01.2014. If the petitioner pays the entire amount including the interest as on date, the possession of the plot will be given to him. He submits that in any case the petitioner, as a defaulter, is not entitled to any relief, and cannot claim restoration of the allotment. The amount deposited by the petitioner was also liable to be forfeited. Sri Ramendra Pratap Singh further submits that the GNIDA has not yet taken any decision with regard to concessional rate of allotment to the disabled persons, and thus no relief can be given to the petitioner for allotment of plot at concessional rate.
14. After hearing the parties, and perusing the records, we find that the GNIDA has treated the petitioner, a disabled person for setting up a 'Social and Cultural Centre' for disabled person, arbitrarily. The GNIDA has failed to carry out the mandate of Section 43 of Act No. 1 of 1960. The Central Act mandates the Government and local authorities to frame a scheme in favour of persons with disabilities for the preferential allotment of land at concessional rates. The failure of GNIDA to consider the request of the petitioner, who is a disabled person and has earned credentials in his social work, amounts to unfair and arbitrary treatment towards him, to set up a Cultural Centre for disabled.
15. The petitioner deposited registration amount and 10 % of total premium of the plot. As per clause 4 of the allotment letter, the constructions are to be completed within a period of one year. In the absence of any identification of the area in which the plot was allotted or the plot number in such area, it was not possible for the petitioner or for that matter any person to have either planned, what to say of started and completed the constructions within the stipulated period of one year as provided in the allotment letter. A bonafide applicant, seeking to set up an institute, or cultural centre would require a substantial amount of money, for which he may have to obtain loan from banks or financial institutions. Without the allotment of plot number, location of plot and possession memo, no bank or financial institution can sanction and release finance for construction of a building.
16. In the present case, the petitioner continued to make request - both for giving concessional rate of allotment as well as providing identification of the area and plot number, so that he may proceed with the object and purpose for seeking allotment. His request for concessional rate of allotment has not been considered so far.
17. The matter of cancellation of allotment has received consideration of the Court in the earlier round of litigation. The petitioner deposited Rs.12 lacs in accordance with the directions of the Court in time to shown his bonafide for allotment, and to establish social cultural centre for which he has made efforts and collected the money. He however did not receive consideration of his application until 09.03.2010, when the pot number was allocated.
18. Having gone through the conditions of allotment, provisional payment of interest and the terms of allotment letter, we find that the petitioner did not commit any default inasmuch as firstly, he was only required to deposit registration fee along with application, and 10 % of total premium of the plot after issuance reservation letter, which the petitioner has complied with. Thereafter, he was issued with a letter of allotment on 16.01.2002, which provided that 20 % of total premium amount was to be deposited within two months and remaining premium in 12 half yearly instalment of Rs. 1,12,810/- beginning from 17.03.2013 to 15.03.2008, without mentioning the plot number and its location. It was not possible for the petitioner to deposit the entire 20 % total premium amount and subsequent instalments as per payment schedule of the allotment, until the plot of land was identified and allotted. The petitioner was not speculating in land. He has interested in setting up a 'Social and Cultural Centre, and for that purpose in order to submit a building plan, and to raise constructions, he required a confirmed allotment of any identified plot with its location, area and boundaries. The cancellation of allotment dated 12.05.2005, was virtually set aside by the Court on 27.02.2009. The judgement was not challenged by the GNIDA and thus the deposit of Rs.12 lacs by the petitioner, resulted into revival of the allotment.
19. We may observe here that despite deposit of Rs. 12 lacs and revival of reservation of plot, in compliance with the order dated 27.02.2009, the actual allotment of plot was made only on 09.03.2010, as disclosed in the compliance affidavit filed in contempt proceeding and as per letter dated 09.03.2010. by which for the first time, the petitioner was informed that he has been allotted plot No.17 in Sector - BZP, Recreational Green, Greater Noida Sector. We are of the view that until the identification and allotment of plot on 09.03.2010, the petitioner could not be said to have committed any default in depositing the instalments. It is entirely unreasonable to expect any person to deposit the instalments without indicating as to which land will be allotted to him. The reservation of allotment by itself does not amount to confirm the allotment and thus any default committed in payment of instalment could not have attracted into penal interest @ 20 % compounded on half yearly basis.
20. The writ petition is allowed. The interest on the defaulted instalment and penal interest with 20 % is declared to be arbitrary unjust and unreasonable. The interest will be calculated w.e.f 09.03.2010, when the plot number was allotted to the petitioner. The amount of Rs.12 lacs deposited by the petitioner in compliance of the order of the Court dated 27.02.2009, will be adjusted on the instalments.
21. Before making any final demand, the GNIDA will consider the mandate of Section 43 of Act No.1 of 1960, in framing scheme and thereafter publishing it by notification for preferential allotment land at concessional rate in favour of persons with disabilities within three months It is only after providing such concessional rate, the GNIDA would be entitled to charge any interest from the petitioner.
22. In the facts and circumstances, in which a blind person has been compelled to contest the matter, we quantify the costs of litigation as Rs.50,000/- which will be either paid to the petitioner, or adjusted by GNIDA, in the calculation and determination of the amount to be paid by the petitioner.
Order Date :- 23.7.2014 nethra