RESERVED
Court No. - 39
Case :- WRIT - C No. - 32032 of 2014 Petitioner :- M/S Kalindi Bright Steels And Tubes Limited And Another Respondent :- Ghaziabad Development Authority And 2 Others Counsel for Petitioner :- Devansh Rathore Counsel for Respondent :- C.S.C.,Anoop Trivedi,Shivam Yadav,Vrindavan Mishra
Hon'ble B. Amit Sthalekar,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.) The petitioner in the writ petition is seeking quashing of the recovery certificate dated 12.5.2014 whereby recovery of Rs.65,71,775/- plus interest of Rs.96,60,509/- total Rs.1,62,32,284/- is sought to be made from the petitioner.
Briefly stated the facts of the case are that the petitioner applied for allotment of two commercial plots under a Scheme floated by the Ghaziabad Development Authority, Ghaziabad (GDA) in the year 1989. The plots were being allotted @ Rs.4,000/- per sq. mt. The petitioner deposited earnest money of Rs.4,00,000/-. When the plot was not being allotted to the petitioner it filed writ petition no. 32792 of 1991 in which an interim order was passed on 16.11.1991 with a direction that if any commercial plot is available under the Scheme the same may be kept reserved for the petitioner. It is stated that thereafter on 27.8.1993 the State Government issued a communication to the GDA and on the basis of the said communication the GDA on 11.3.1994 took a decision to allot a plot to the petitioner company and a letter in this regard was issued to the petitioner company on 25.4.1994. The petitioner company therefore took steps for withdrawal of the writ petition no. 32792 of 1991 and the same was dismissed as withdrawn on 19.5.1994. It is stated that by an order dated 6.6.1995 allotment letter was issued to the petitioner but the rate of the land was enhanced from Rs.4,000/- per sq. mt. to Rs. 8,060/- per sq. mt. Aggrieved the petitioner filed another writ petition no. 41775 of 1996 (M/s Kalindi Bright Steels And Tubes Vs. State of U.P. and others). It is stated that during the pendency of the said writ petition, the GDA issued a communication on 5.9.2005 informing the petitioner that it was willing to allot a plot measuring 750 sq. mt. with the same FAR in coverage area as was available under the 1989 Scheme subject to withdrawal by the petitioner of his writ petition.
Accordingly the petitioner withdrew the writ petition no. 41775 of 2006 and the same was dismissed as withdrawn vide order dated 26.9.2006. It is stated that on 16.10.2016 a communication was sent by the respondents to the petitioner informing that they would be permitted a coverage FAR on the basis of control design fixed for 750 sq. mt. and the company besides the premium would have to pay Rs.80,39,565.90/- calculated at Rs.8,060/- per sq. mt. with interest and additional amount of Rs.2,23,98,051.85/- total Rs. 3,04,37,617.75/-. It is stated that the interest was calculated at 21% with effect from 6.6.1995. The case of the petitioner further is that it submitted it objections on the demand of Rs. 3,04,37,617.75/- on 20.10.2006 but by a letter dated 25.11.2006 the authority again reiterated its demand for the same amount. Therefore the petitioner was constrained to deposit the amount in two parts on 13.11.2006 and balance on 29.11.2006. It is claimed that this deposit was made by the petitioner company under protest regarding levy of interest.
The case of the petitioner company further is that on 5.12.2006 it submitted a request to the GDA for refund of the excess amount deposited by it alleging that the rate and mode of interest levied was exorbitant and contrary to the norms fixed by the GDA. The company sent another letter to the GDA on 27.12.2006 protesting the enhancement of cost of land from Rs.4,000/- to Rs. 8,060/- per sq. mt. The case of the petitioner is that it had claimed simple interest being charged instead of compounding interest as provided under the OTS Scheme. It is stated that when no reply was given by the GDA the petitioner company approached the National Consumer Dispute Redressal Commission, New Delhi and filed complaint case No. 42 of 2007. The relief claimed there in was
(a) refund of Rs.2,79,44,312/-;
(b) award of compensation of Rs.4,00,000/- per month w.e.f. 25.11.2006 till the date of refund;
(c) allotment of an additional plot to make up for the deficiency in FAR of 6550 sq. mt.; and
(d) any other order as it may deem fit and proper under the circumstances.
It is stated that before the Consumer Forum the GDA filed a counter affidavit stating that the petitioner complainant had been a defaulter in payment of allotment money and, therefore, it was liable to payment of interest on the enhanced rate. On 4.5.2007 and 1.6.2007 the State Government issued a communication to the Vice Chairman, GDA calling upon him to resolve the controversy in accordance with the provisions of OTS Scheme. It is stated that on 19.5.2007 a decision was taken by the GDA to refund a sum of Rs.65,71,775.10/- and a cheque no. 485697 dated 21.5.2007 for an amount of Rs. 65,71,775.10/- was drawn on Vijaya Bank, Ghaziabad in favour of the petitioner which was received by the petitioner in June ,2007. According to the petitioner this amount was the difference of interest between 15% and 21%. It is stated that thereafter after about 7 years the officials of the District Magistrate, Ghaziabad visited the petitioner company and demanded refund of the amount of Rs.65,71,775.10/- and thereafter the impugned recovery certified was issued.
The contention of the learned counsel for the petitioner is that the refund of Rs.65,71,775.10/- was made by the GDA in view of the OTS Scheme and it was the GDA that had refunded this amount to the petitioner in view of which the complaint case no. 42 of 2007 was also got dismissed as withdrawn by the petitioner company. It is also submitted that in any case there was no good ground for issuing the impugned recovery certificate after a period of 7 years as in any case there was no outstanding claim against the petitioner company.
Per contra rebutting the submission of the learned counsel for the petitioners Sri Anoop Trivedi, learned Senior Counsel who has been requested by the Court to continue to assist the Court, referring to his counter affidavit submits that the facts as narrated by the petitioners are quite misleading. He submits that a commercial plot was allotted to the petitioners by the Ghaziabad Development Authority but the allotment was cancelled due to non payment of dues. These plots are Plot No.15 & 16 in Kaushambi, District Ghaziabad. The petitioners claimed a One Time Settlement which was allowed by the Ghaziabad Development Authority and thereafter under the One Time Settlement scheme they were required to pay certain amounts. The petitioners paid Rs. 3,04,37,617.75/- in two installments and thereafter the plots were restored to them. The petitioners thereafter filed a complaint before the National Consumer Disputes Redressal Commission (hereinafter referred to as the 'Commission') alleging that excess amount had been recovered from them by the Ghaziabad Development Authority under the One Time Settlement scheme as stated in paragraph 4 of the counter affidavit. It is also stated that the claim of the petitioners for relaxation/rebate was refused. It is also stated that in the meantime the petitioners sold the property in question to M/s Virgin Hotel and Resort (India). M/s. Virgin Hotel applied for mutation which was rejected by order dated 09.05.2014. In the meantime M/S Kalindi Bright Steels And Tubes Limited, the petitioner herein, submitted a letter before the Ghaziabad Development Authority dated 07.07.2009, copy of which has been filed at page 370 to the writ petition of M/s Virgin Hotel and Resorts (India) wherein it has been stated that the dispute with regard to the amount of Rs.65,71,775/- of which refund has been claimed is a dispute between the Ghaziabad Development Authority and M/S Kalindi Bright Steels And Tubes Limited and M/s Virgin Hotel and Resort (India) had no concern with the same and that the mutation of name of M/s Virgin Hotel and Resort (India) over the plots in dispute should not be withheld only because there is dispute between the M/S Kalindi Bright Steels And Tubes Limited and Ghaziabad Development Authority.
In view of this letter of M/s Kalindi Bright Steels and Tubes Limited we allowed the connected Writ Petition No.39423 of 2014 and set aside the order dated 09.05.2014 and directed the respondents to consider the claim of M/s Virgin Hotel and Resort (India) for mutation of their names over the plots no.15 and 16 situated in Sector-14 Kaushambi, Ghaziabad in accordance with law within a period of three months.
Sri Anoop Trivedi, learned Senior Counsel for the respondents referring to the averments in paragraph 19 of his counter affidavit filed in M/S Kalindi Bright submitted that the claim of the petitioners was never considered under the One Time Settlement Scheme. In fact the allotment of plots no.15 and 16, the plots in question, was cancelled because the petitioner company had defaulted in payment of installments and a letter in this regard was also sent to the petitioners on 05.09.2006, copy of which has been filed as Annexure-7 to the writ petition in which there is no mention of settlement of claim of the petitioners under One time Settlement Scheme. Thereafter another letter was issued to the director of the petitioners' Company informing them that on the condition of withdrawal of the case filed by it before the National Consumer Commissioner it will be allowed permissible ground coverage and FAR on the basis of control design fixed for 750 sq.m and other than this a sum of Rs. 3,04,37,617.75/- was also due against the Company in respect of the plots and 2% free hold charges and restoration fee as per rules would also be payable. Therefore, the submission of Sri Anoop Trivedi, learned Senior Counsel for the respondents is that the petitioners were never kept in the dark about their liabilities and the payments that they would be required to pay and that they were not being given the benefit of any One Time Settlement Scheme.
Even in the counter affidavit filed before the National Commission, copy of which has been filed as Annexure-18 to the writ petition in paragraph -G thereof the respondents have clearly stated that in terms of the Government Order dated 27.08.1993 directing the respondents to settle the matter out of Court, the allotment letter dated 06.06.1995 allotting plots no.15 and 16 both measuring 500 sq.m in favour of the petitioners company was being restored at a cost of Rs.8060.20 per sq.m. and cost of the plot was to be deposited as per the payment schedule enclosed with the allotment letter.
The submission of the learned counsel for the respondents further is that the petitioners deposited the said amount but there is no mention that it was being deposited under any protest.
We have heard learned counsel for the parties and perused the documents on record.
It is not in dispute that the plots no.15 & 16 in Sector-14 Kaushambi, District Ghaziabad was allotted to the petitioners' Company for commercial purposes. The undisputed fact on record is that the petitioner company defaulted in the matter of payment of installments whereupon the allotment of the plots in favour of the petitioners was cancelled which would be clear from the letter of the petitioners' company dated 25.02.2007 (Annexure-2 to the counter affidavit).
The petitoiners were again restored the allotment of the plots no.15 & 16 with the clear understanding that they would have to pay an amount of Rs. 3,04,37,617.75/- in respect of plot of an area 750 sq.m. with restoration charges as well as 2% freehold charges. They were informed that the cost of the land would be Rs.8060/- per sq.m.. The petitioners were themselves interested in taking the two plots in question and therefore they paid the amount of Rs. 3,04,37,617.75/-in two installments which is admitted by them in their writ petition. Even their letter dated 25.02.2007 mentions the value of the land as Rs.8060/- per sq.m and that the petitioners have deposited the said amount.
There is nothing in this letter to show that the same was paid by the petitioners under the protest and that they would be claiming refund or adjustment of the excess amount in future. Merely mentioning 'without prejudice' in the letter would not mean that they were making the payment under protest. If the petitioners had any objection to the amount demanded they should have sought a clarification at the outset since their initial allotment had been cancelled being defaulters and it is on their request that restoration of allotment was allowed on terms and conditions which they accepted and paid.
Therefore, having availed the benefit of restoration, the petitioner company cannot be allowed to crib and complain about the additional charges demanded from them.
The conditions for restoration of their plots no.15 & 16 itself was on the terms and conditions as mentioned in the communication of the Ghaziabad Development Authority and therefore the petitioners were never in the dark.
The petitioners have harbored a misconception that the allotment of the plots in dispute was restored to them under a One Time Settlement Scheme which was never the case. Infact the petitioner company in its letter dated 14.7.2005, Annexure-6 to the writ petition has stated that they are interested in OTC/ outside the court settlement but thereafter there is nothing on record to show that the respondent -Ghaziabad Development Authority settled the claim of the petitioners for restoration of the plots under OTS.
It would be relevant at this stage to again advert to the reliefs claimed by the petitioner company in its complaint before the National Consumer Redressal Commission in complaint case no. 42 of 2007, copy of which has been filed as Annexure-3 to the connected writ petition no. 39423 of 2014. The reliefs therein are already been quoted herein above. Complaint petition of the petitioner company would show that it was claiming the refund of Rs. 2,79,44,312.40/- and not Rs.65,71,775.10/-. Infact in paragraph 4 of the counter affidavit filed by the GDA it was stated that the claim of the petitioner company for refund was considered and it was decided to give a rebate of Rs.65,71,775.10/- to the complainant which was given on 21.5.2007.
The contention of Shri Anoop Trivedi, learned counsel for the GDA is that when the claim for refund by the petitioner was for a sum of Rs.2,79,44,312.40/- there would hardly be any reason that the petitioner would settle for refund of Rs. 65,71,775.10/-. His submission is that this amount was fraudulently manipulated by certain officers and staff of the GDA in collusion with the petitioner and the note in this regard for refund of Rs. 65,71,775.10/- was put before the authority which was also duly sanctioned but when it was realized that fraud had been played upon the GDA, the impugned recovery certificate has been issued to the petitioner. He has referred to a report of a four members committee of the GDA dated 8.6.2009, copy of which has been filed as Annexure-3 to the counter affidavit filed in the connected writ petition no. 39423 of 2014 (M/s Virgin Hotels and Resort India Vs. Ghaziabad Development Authority) and submits that in the report it has itself come on record that though the petitioner had requested for settlement under the OTS but the same was never accepted and there was no reason for refund of the sum of Rs.65,71,775.10/-.
Shri Anoop Trivedi also submits that in the said report itself a decision has been taken for holding an enquiry and taking appropriate departmental action against the officers/staff who have got the refund of Rs.65,71,775.10/- fraudulently approved by the Vice Chairman, Ghaziabad Development Authority, Ghaziabad by not placing the correct facts before him. He further submits that this entire action was a collusive act between the petitioner company and the officers and staff of the GDA.
From a perusal of the resolution of 8.6.2009 we find that the impugned recovery is based on a report of a duly constituted committee of the GDA and its report is dated 8.6.2009.
We find the conduct of the petitioner quite un-explainable that when it had approached the National Consumer Redressal Commission, New Delhi for the refund of Rs. 2,79,44,312.40/- why it would settle for Rs. 65,71,775.10/- for which there is no supporting documentary evidence on record as to what this amount or charge about. As we have already noted above, the petitioner on his own admission had deposited 3,04,37,617.75/- for restoration of his plots and having taken that benefit and paid the cost, he cannot now object to recovery of Rs.65,71,775.10/- illegally refunded to him.
The petitioner also cannot be allowed to take the advantage of an illegal refund fraudulently granted to it on the ground that the recovery certificate has been issued after seven years. We may note that for the last seven years the petitioner has been a beneficiary of this amount which is now sought to be recovered from him with due interest under the impugned order.
We therefore do not find any illegality or infirmity in the impugned recovery certificate.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 31.5.2019 o.k.