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SMT. MEERA DEVI versus STATE OF U.P. THRU' COLLECTOR & OTHERS

High Court of Judicature at Allahabad

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Smt. Meera Devi v. State Of U.P. Thru' Collector & Others - WRIT - C No. 8638 of 2003 [2007] RD-AH 8091 (30 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.35

Civil Misc. Writ Petition No. 8638 of 2003

Smt. Meera Devi

       Versus

    State of U.P. and others

Hon.R.P.Misra, J.

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the recovery certificate dated 4.2.2003 issued by the respondent No.3 and in pursuance thereof the citation has been issued as Annexure 11 to the writ petition in respect of MIG 4, Ratanpur Colony (Panki), Kanpur Nagar.

On the basis of advertisement for allotment of house by the respondent No.3 petitioner has also applied and deposited Rs.30,000/- on 10.6.1996.  The petitioner was allotted MIG-4, Ratanpur Colony, (Panki), Kanpur and the allotment order was issued on 31.7.1996.  From the perusal of the allotment order it reveals that cost of the house assessed was Rs.1,99,192.40p.  A direction was issued to deposit 1/4th share i.e. amounting to Rs.49,798.10p  upto 1.9.1996 i.e. the remaining amount of Rs.19,798.10p. The rest of the  3/4th amount was to be deposited by the petitioner in 72 months as being instalment of Rs.3,665.52p per month.   Petitioner deposited Rs.19,798/- on 31.8.1996 within time and further began to deposit subsequent instalments on 27.12.1996, 21.2.1997, 9.11.1998, 9.2.1999, 14.5.1999, 20.7.1999 and 21.10.1999.  

There was some default in the instalments due to the                                                                        fact that house in question was not having dwelling roof, therefore, the petitioner has spended about two lacs and subsequently fallen ill, therefore, the regular instalment could not be paid.  Petitioner being a widow allottee has to manage the expenditure of his family of four sons and two daughters only on the basis of the family pension which is being paid to the petitioner. The State of U.P. issued a scheme namely one time settlement in the matter of defaulters charging simple interest  on defaulted amounts and waived the penal interest. The Development Authority, Kanpur has also implemented and adopted the said scheme and an advertisement was published in the newspaper on 12.7.2001 in the aforesaid context. The Joint Secretary Zone-II issued a letter dated 21.8.2001 directing the petitioner to deposit Rs.2,34,593/- that was the defaulting instalments and to apply for one time settlement on prescribed form.  The petitioner applied for the same and deposited the requisite fee on 15.10.2001.  Surprisingly, a demand notice  dated 3.11.2001 was issued from the office of the respondent No.3 directing the petitioner to pay Rs.3,54,185.24p and directed to deposit Rs.1,18,061.25p.  Petitioner raised an objection on 3.11.2001 and has prayed to charge the amount according to the one time settlement.  The office of the respondent No.3 directed the petitioner  to deposit Rs.1 lac and the same was deposited through Account Payee Cheque on 23.1.2002.  Admittedly, the valuation of the house at the time of allotment was Rs.1,99,192/- and the petitioner till 23.1.2002 has already deposited Rs.1,75,468/- and according to the petitioner's calculation as per one time settlement the amount comes to Rs.1,39,000/- which was to be paid by the petitioner.  But in spite of the aforesaid fact, the respondent No.3 issued a letter demanding an amount of Rs.2,54,185.24p and directed to deposit accordingly.

A notice was published by the respondent No.3 holding a Lok Adalat and to settle the matter of defaulters charging only 9% interest.  The office of the respondent No.3  on one hand accepted amount and on the other hand threatened the petitioner to dispossess and cancel the allotment.  The petitioner filed a suit for restraining the respondents from dispossessing the petitioner from the house in question.  A preliminary objection was filed by the respondent though the recovery certificate was issued on 15.1.2003 but the same was not disclosed in the preliminary objection filed on behalf of the respondents.  As the respondents started harassing  the petitioner by way of recovery certificate dated 4.2.2003, mentioning an amount which is due to the petitioner amounting to Rs.3,40,893/- and 10% recovery charges mentioned in the citation.

Aggrieved by the aforesaid action of the respondents, the petitioner has approached this Court and this Court while entertaining the writ petition has directed the learned counsel for the respondents to file a counter affidavit and a conditional order was passed that as according to the calculation made by the petitioner due amount comes  to  Rs.1,39,000/- therefore, the petitioner is permitted to deposit the aforesaid amount within a period of two weeks.  Petitioner submits that in compliance of the  order passed by this Court, the petitioner has deposited the aforesaid amount by Bank Draft dated 3.3.2003.  A photocopy of the said Bank draft has been annexed as Annexure 1 to the rejoinder affidavit.  

It has been submitted on behalf of the petitioner that according to the terms and condition at the time of initial allotment if the amount is calculated  the petitioner has already deposited the total amount. Once the one time settlement has been accepted and the amount has been deposited unless and until the same is cancelled by a specific order by the respondents, the respondents cannot take a plea before this Court at this stage that the one time settlement has already been cancelled.  The further submission has been made by the petitioner that the letter dated 23.9.2002 is a decision of the Lok Adalat and adopted by the Development Authority that in case there are some dispute  or the matter has been decided by any court, a compromise may be arrived with the defaulters on the payment of only 9% interest.  In view of the aforesaid fact, the learned counsel for the petitioner submits that the respondents is estopped from charging 25% interest plus penal interest from the petitioner.  Admittedly, the one time settlement has not been cancelled.  No document to that effect has been filed by the respondents to show that one time settlement has been cancelled.  Admittedly, after the one time settlement  the petitioner has deposited Rs.2,39,000/- , therefore, no further demand can be raised from the petitioner.  The petitioner has stated in paragraph 4 of the rejoinder affidavit that if 72 instalments is calculated at the rate of Rs.3,665.52 per instalment it comes a sum of Rs.2,63,890/-. Thus amount of seven instalments  i.e. sum of Rs.25,660/- if deducted, the balance amount comes to Rs.2,38,235/- and the petitioner has already deposited an amount of Rs.2,39,000/-.  Thus it is clear that the petitioner deposited all the remaining 3/4th amount by paying 25% interest.  Thus there remains no further balance and in case, the balance amount calculated at the rate of 9% of 3/4th unpaid  amount a sum of Rs.1,49,394/- with effect from 1.10.1996 which is less than that of already paid by the petitioner.

In such view of the matter, the petitioner submits that there is no due against the petitioner and the order of recovery is liable to be quashed.

On the other hand Sri Atiq Ahmad Khan learned counsel for the Development Authority has submitted that a recovery certificate of outstanding dues of Rs.3,40,893.68p was sent to the petitioner through Collector, Kanpur Nagar.  The respondents further submits that in the order of allotment it was specifically provided that in case of non-deposit of the amount of instalments for a period of six months from the due date, the allotment order of the allottee shall automatically stand cancelled and the amount deposited by the allottee shall be refunded after deducting 5% thereof.  It has further been submitted that it is incorrect to say that while issuing a letter for one time settlement the petitioner was directed to deposit only Rs.2,34,592/-.  The aforesaid amount was towards the defaulting instalments along with interest and penal interest.  According to the one time settlement the petitioner was to pay the entire amount of Rs.3,54,185.24p by 14.1.2002.  The petitioner on 23.1.2002 has paid Rs.1 lac only.  In case of non-compliance of the offer of one time settlement given to the petitioner, the petitioner is liable to pay up-to-date interest on the unpaid amount indicated in the one time settlement offer to the petitioner.  After calculating the amount of recovery certificate issued against petitioner for a sum of Rs.3,40,893/- it is incorrect to state that only Rs.1,39,000/- was payable by the petitioner.

After hearing counsel for the parties and after perusal of the record, it is clear that an allotment was made in favour of the petitioner on 31.7.1996 and as the petitioner has already deposited Rs.30,000/- therefore, he was required to deposit only Rs.19,798.10p  of the one fourth total amount demanded by the respondents.  Petitioner has deposited the said amount in time.  From time to time the petitioner has deposited the instalment fixed by the respondents but there was some default and one time settlement has been arrived and the petitioner was directed to pay some amount and in compliance of the one time settlement the petitioner has deposited Rs.1 lac but from the record it is also clear that immediately after depositing Rs.1,00,000/- by the petitioner on the basis of one time settlement, the respondents raised a demand on 24.9.2002 to the tune of Rs.2,54,185/-.  From the perusal of the letter dated 21.8.2001 of one time settlement goes to show that no penal interest will be charged.  From the decision taken by the respondents  in Lok Adalat dated 23.9.2002 it was mentioned that in case where a litigation is pending or it has been decided,   the matter may be finalized from the defaulters only after taking 9% of interest.  The contention of the respondents is not acceptable to this extent that petitioner should have approached the authorities for the said purposes.  Admittedly, from time to time the petitioner has approached the authority for giving the details of the amount deposited by the petitioner but in spite of the aforesaid fact, after accepting the one time settlement the respondents have issued a recovery.  It is clear from the record that  the conditional order has been complied with and the petitioner has already deposited Rs.1,39,000/-.  Admittedly, the value of the house at the time of allotment of the house is Rs.1,99,192.45p.  There is no doubt that there was some default.  But as the petitioner immediately after one time settlement has deposited Rs.1 lac within time, therefore, there was no occasion for the respondents to issue a recovery against the petitioner to the tune of Rs.3,40,893/-.  The letter of one time settlement clearly goes to show that amount due against the petitioner was Rs.2,34,593.28p  then how after depositing of Rs.1 lac the balance against the petitioner was shown as Rs.3,40,893/- in the recovery dated 4.2.2003.  It appears that in spite of the decision in the Lok Adalat adopted by the development authority the petitioner is being charged interest at the rate of 25% plus penal interest and the said amount has been calculated in the total amount dated 4.2.2003.

In our view, this act of the respondents is wholly arbitrary unless and until the one time settlement is cancelled the respondents have got no jurisdiction to issue a recovery certificate dated 4.2.2003.  Once a decision has been adopted by the development authority charging interest at the rate of 9% then under what circumstances, the respondent Development Authority are charging interest at the rate of 25% and penal interest.

In view of the aforesaid fact, we are of the considered opinion that the recovery against the petitioner is not sustainable in law and is hereby quashed.  The writ petition is allowed.  It is, however made clear that the respondent No.3 is directed to calculate the amount according to the decision dated 23.9.2002 charging the interest from the petitioner at the rate of 9% and will calculate the total  deposit of the petitioner at the rate of 9% and if any excess amount  comes out, the same may be returned to the petitioner. It is further provided that if at the rate of 9% some amount is payable to the petitioner the same may be calculated and inform to the petitioner accordingly and the petitioner will pay the said amount within a period of two months. The aforesaid exercise be done by the respondent No.3 within a period of two months from the date of production of the certified copy of the order.

No order as to costs.

30.4.2007

SKD  


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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