WP/37233/2012 of M.V. Ratnakar, Vs Visakhapatnam Urban Development Authority, on 31 December 2015

ORDER:

This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking the following relief/s:- “….to issue an appropriate writ or order or orders or direction moreparticularly one in the nature of writ of Mandamus declaring the impugnedproceedings vide Rc.No.43/1/LIG/MVP/FI, dt. 05.11.2012 and a consequentialorder vide Plot no. LIG-43/Sec-l/MVP/F1, dt. 20.10.2012 as illegal, arbitrary,contrary to law and in violation of Articles 14, 21 and 300-A of Constitutionof India and set aside the same and further consequently direct therespondent to register immediately subject to litigation at the Hon'ble Courtat Visakhapatnam the plot LIG 43, located in Sector no.l of MV Palem layout,Visakhapatnam to an extent of 253.61 sq.vds in favour of the petitioner asper the terms of consent vide Rc.No. LIG-43/1./MVP/95/EM.II, dt. 01.01.1996and further to pass such order or orders as this Hon’ble Court may deem fitand proper in the circumstances of the case.””

(Reproduced Verbatim)

2. I have heard the submissions of the learned Senior Counsel for the writpetitioner and the learned standing counsel for the sole respondent/VUDA. Ihave perused the material record.

3. The case of the writ petitioner, as set out in the writ petition and as perthe submissions made at hearing, in brief, is as follows:- “The respondent had issued a notification on 14.09.1995 proposing tosell/allot plots for consideration in various lay outs made by the respondentwithin the Visakhapatnam city/Urban areas. The process of inviting sealedquotations-cum-auction was adopted for allotment/sale of plots in various layouts made by the respondent including the layout at M.V. Palem ofVisakhapatnam. The writ petitioner had submitted a sealed quotation dated25.09.1995, having made a deposit of Rs.10,000/- towards earnest money. On the acceptance of the quotation of the writ petitioner by the respondent fora plot in serial no.LIG-43 located at Sector no.1 of M.V. Palem lay out at therate of Rs.2,052/- per square yard, the respondent had issued proceedingsdated 01.01.1996 stating that the offer of the writ petitioner was tentativelyaccepted subject to payment of full cost of the land within the stipulated timeand observance of all conditions mentioned in the application and the form

Conclusion

annexed thereto. Having worked out the cost of the plot of an extent of253.61 square yards at an amount of Rs.5,20,468/- including the lease rent ofRs.60/-, the petitioner was directed by the respondent to pay the said amountby way of demand draft drawn in favour of the respondent as per theschedule that was determined/fixed. Accordingly, the respondent hadaddressed a letter dated 01.01.1996 to the petitioner. Having not been ableto pay 70% of the cost of the plot within the stipulated time, the writ petitionerhad sought extension of time for payment of the said amount by a letter dated08.02.1996. Having accepted the said request, the respondent had grantedextension of time for payment of the balance amount of cost till 09.03.1996,subject to the condition that the same is payable with interest at the rate of18% per annum. The writ petitioner had made the payment of the balancecost amount by 09.03.1996 with interest. As there was no communication inregard to the registration of the plot in his favour, the petitioner had made arepresentation to the respondent by letter dated 01.08.1996 for registration ofthe plot in his name. In response thereto, the respondent had sent a letterdated 12.08.1996 stating inter alia that a litigation is pending with regard tothe subject plot and that it is confident that at an early date the result of theCourt litigation will come in favour of the respondent and that therefore, thepetitioner may wait for some time. Then the petitioner had made arepresentation to the respondent by letter dated 31.10.1996 to refund theentire amount with interest by withholding the earnest money deposit toenable him to pay the cost of the plot after disposal of the Court case. Havingobtained a legal opinion, the respondent had refunded/repaid to the petitionerthe cost of the plot, i.e., Rs.5,10,468/- without interest by withholding theearnest money deposit. The request for payment of interest was notconsidered by the respondent; and, by the proceedings dated 10.01.1997, thepetitioner was informed that the plot will be registered in his favour after thesubject plot is cleared from the Court litigation. After the Court litigation hascome to an end with the disposal of S.A.No.106 of 2006 by this Court, the writpetitioner had again made a representation dated 25.01.2010 to therespondent requesting to register the plot in his name. The saidrepresentation was rejected by the respondent by a letter dated 09.03.2010

informing the petitioner that his case was examined in detail and that it wasdecided to allot the subject plot to the petitioner at Rs.28,000/- per squareyard subject to the confirmation of the actual extent as per the groundposition. Further, a notarised undertaking affidavit to that effect was alsosought from the petitioner requiring him to undertake that he would not resortto any litigation against VUDA on such re-allotment of the subject plot. Further, arbitrary conditions were also mentioned in the saidletter/proceeding. In the said circumstances, the petitioner had filedW.P.No.6437 of 2010 before this Court and the said writ petition was allowedby this Court directing the respondent herein to execute the sale deed infavour of the petitioner for plot in question on payment of the original saleconsideration, i.e., Rs.5,10,468/- within four weeks from the date of receipt ofa copy of the said order, however, with interest at the rate of 12% per annumfrom 10.01.1997 till the date of deposit of the said amount. It was furtherordered that if the petitioner fails to so deposit the said amount with interestwithin four weeks from the date of the receipt of a copy of the said order, heshall not be entitled to reap the benefit of the said order. After the said writorders, the petitioner had made a representation dated 15.04.2011 for re-allotment of the plot in question to him after obtaining two demand drafts viz.,(i) demand draft bearing no.521953 for an amount of Rs.6,83,871/- dated13.04.2011 drawn on Andhra Bank; and (ii) demand draft bearing no.554258for an amount of Rs.7,00,000/- dated 13.04.2011 drawn on Andhra Bankrespectively. The petitioner had submitted the photostat copies of the saiddemand drafts along with representation, as the respondent had refused toaccede to receive the original demand drafts and had asked him to submit theoriginal drafts immediately after obtaining the order of re-allotment. Subsequently, when the petitioner had approached the office of therespondent to find out as to why the original demand drafts were not beingaccepted, he was informed that the said demand drafts cannot be acceptedas two civil suits in O.S.No.221 of 2010 on the file of the Court of the learnedVI Additional District Judge and O.S.No.937 of 2010 on the file of the Court ofthe learned IV Additional Civil Judge at Visakhapatnam are pending inrespect of the subject plot. As the two cases were pending, the petitioner was

also informed that the delay in payment would be condoned by the ViceChairman even though the time prescribed by this Court in the writ order hadelapsed. In spite of several representations dated 15.04.2010, 13.06.2011,23.11.2011 and 13.04.2012 made by the petitioner for re-allotment of the plot,no action was taken. Hence, the petitioner had filed a contempt case inC.C.No.413 of 2012 against the respondent before this Court for non-compliance of the orders of this Court in W.P.No.6437 of 2010. The saidcontempt case was withdrawn by the petitioner upon the request of therespondent and on assurance that steps would be taken for re-allotment ofthe subject plot to the petitioner. The petitioner had withdrawn the contemptcase having addressed a letter dated 19.04.2012 expressing his willingnessto withdraw the contempt case. Subsequently, the contempt case wasclosed. The respondent had again addressed a letter dated 20.04.2012stating that there are two civil suits in O.S.No.221 of 2010 on the file of theCourt of the learned VI Additional District Judge and O.S.No.937 of 2010 onthe file of the Court of the learned IV Additional Civil Judge atVisakhapatnam, pending in respect of the subject property and that his casewill be considered after the disposal of the above mentioned civil suits. Theabove two civil suits were filed by the plaintiffs in the said suits in collusionwith the party who had already filed the second appeal in S.A.No.106 of 2006before this Court. The writ petitioner then submitted a representation alongwith two cheques for the required amount requesting to consider his case. Contrary to the contents of the earlier letter dated 20.04.2012, therespondents had addressed letters dated 20.10.2012 and 05.10.2012 statingthat the petitioner had failed to comply with the orders passed by this Court inW.P.No.6437 of 2010 and had returned the cheques of the petitioner alongwith their cheque for Rs.10,000/- towards refund of the original earnestmoney deposit. Having not accepted the said cheque, the petitioner hadrequested the respondent to adhere to its words in the letter dated 01.01.1996and 20.04.2012. The petitioner who is of 59 years of age had paid the costamount of the plot after obtaining loans from his relatives and friends with thefond hope that the respondent by accepting the original price would registerthe subject plot in his name and that he would be able to construct a small residential house in the said plot. In spite of the orders of this Court, therespondent had failed to register the subject plot in the name of the petitionerby receiving the cheques issued towards the original cost amount. Therespondent had returned the cheques with an intention to register the same infavour of some third parties. Having no alternative, the petitioner isconstrained to file the present writ petition.”

4. The averments in the counter affidavit of the respondent, in brief, are asfollows:-

“The material allegations in the writ petition are false. The SecondAppeal in S.A.No.106 of 2006 was disposed of in favour of the respondent on08.08.2009. Further two civil suits were filed. The said suits are pending. The said fact was informed to the petitioner by a letter dated 20.04.2012. It istrue that the writ petition in W.P.No.6437 of 2010 was allowed and that therespondent therein was directed to execute a sale deed for the plot inquestion in favour of the petitioner on payment of the original saleconsideration, i.e., Rs.5,10,468/- with interest at the rate of 12% per annumfrom 10.01.1997 till the date of deposit. In the said writ petition, orders werealso passed that if the petitioner fails to deposit the amount within four weeksfrom the date of the receipt of a copy of the said order, he shall not be entitledto reap the benefit under the said order. The petitioner is trying to show to theCourt that he has deposited the amount within the aforementioned timeallowed by this Court; but, he has not deposited the amount within the timegranted by this Court in the orders in W.P.No.6437 of 2010. Withoutdepositing the amount, the petitioner had filed a contempt case inC.C.No.413 of 2012 complaining non-compliance of the orders of this Courtin W.P.No.6437 of 2010. Then, the respondent was directed to appear in-person before this Court to answer the complaint in regard to the noncompliance of the orders of this Court in W.P.No.6437 of 2010; but, in themeantime, the petitioner had withdrawn the contempt case. The respondenthad addressed a reply letter dated 20.04.2012 to the petitioner’s letter dated 19.04.2012 stating that there are two civil suits pending in respect of thesubject plot and hence, the orders of this Court could not be complied withand the case of the petitioner will be considered after the disposal of theabove mentioned two civil suits. Since the petitioner had not deposited theamount within the stipulated time of four weeks, the amount paid by him wasreturned along with earnest money deposit of Rs.10,000/- available with therespondent. Till the disposal of the two civil suits, the registration of the plotsin favour of the petitioner is not possible. In view of the pendency of the twocivil suits and also failure on the part of the petitioner to pay or depositamount within four weeks time allowed by this Court in W.P.No.6437 of 2010,the writ petition is liable to be dismissed.”

5. At the time of hearing, learned counsel for both the sides madesubmissions in-line with their respective pleaded cases stated supra in detail.

6. I have perused the material papers filed along with the writ petition.

7. From the pleadings of the parties and the submissions made, the factsthat emerge for consideration may be summed up as follows: After followingthe due procedure that was required to be followed, the subject plot wasallotted tentatively to the petitioner at a cost of Rs.5,10,468/- including thelease rent amount of Rs.60/-. The petitioner, by a letter dated 01.01.1996 ofthe respondent, was directed to pay the cost of the plot by way of demanddrafts in favour of the respondent as per the schedule stated in the said letter. The final instalment of 70% was not paid within time by the petitioner; but, thesaid instalment was paid with interest within the extended time granted by therespondent to the petitioner. Thus, the entire cost of the plot was paid by thepetitioner initially to the respondent. When the petitioner had addressed aletter dated 01.08.1996 requesting the respondent to execute and register thesale deed in respect of the subject plot, the respondent, by its letter dated12.08.1996, informed the petitioner that the sale deed cannot be executedsince a civil litigation is pending in the Court in respect of the subject plot. Further, the petitioner was asked to wait for some time on the expectation thatthe litigation would end in favour of the respondent at an early date.

Therefore, on 31.10.1996, the petitioner had made a representation to therespondent requesting to refund the sale consideration with interest whileoffering that the respondent can withhold the earnest money deposit and alsostating that in case the litigation in respect of the subject plot ends in favour ofthe respondent, the petitioner would deposit the sale consideration onceagain. Having accepted the said proposal of the petitioner, the respondenthad refunded an amount of Rs.5,10,468/- to the petitioner without anyinterest; but, had withheld the earnest money deposit of Rs.10,000/-. After thelitigation had come to an end with the disposal of the second appeal inS.A.No.106 of 2006 by this Court and on coming to know of the same, thepetitioner had made a representation to the respondent requesting to executethe sale deed in respect of the subject plot in his favour. However, therespondent, by letter dated 09.03.2010, informed the petitioner that his casewas examined in detail and that it was decided to allot the subject plotsubject to the confirmation of the actual extent as per the ground position atRs.28,000/- per square yard; and, a notarised undertaking affidavit to thateffect was also sought from the petitioner. The petitioner was asked toundertake in that affidavit to be submitted by him that he would not resort toany litigation against VUDA on re-allotment of the subject plot as stated. Feeling aggrieved, the petitioner had filed W.P.No.6437 of 2010 before thisCourt. On merits, this Court, while allowing the writ petition, directed therespondent to execute the sale deed in favour of the petitioner in respect ofthe plot in question on payment of the original sale consideration, i.e.,Rs.5,10,468/- with interest at the rate of 12% per annum from 10.01.1997 tillthe date of deposit and had further ordered that on failure of the petitioner toso deposit the amount within four weeks from the date of the receipt of a copyof the said order, the petitioner would not be entitled to reap the benefit of thesaid order. The writ petition was accordingly disposed of on 03.03.2011.’

8. In this backdrop of facts of the case, the question that requires to beexamined is as to whether the petitioner had complied with theaforementioned orders of this Court and has become entitled to reap thebenefits of the said order. As per the material record, the petitioner had

obtained two demand drafts viz., (i) demand draft bearing no.521953 for anamount of Rs.6,83,871/- dated 13.04.2011 drawn on Andhra Bank; and (ii)demand draft bearing no.554258 for an amount of Rs.7,00,000/- dated13.04.2011 drawn on Andhra Bank respectively. But, the question is as towhether he had delivered the said drafts to the respondent within the timeallowed by this Court in the aforementioned orders. In this regard, it isnecessary to reproduce the operation portion of the order dated 03.03.2011 of this Court in W.P.No.6437 of 2010, which reads as under:

“Therefore, the writ petition is allowed and the respondent isdirected to execute the sale deed in favour of the petitioner for theplot in question on payment of original sale consideration, i.e.,Rs.5,10,468/- with interest at 12% per annum from 10.1.1997 till thedate of deposit of the amount. If the petitioner fails to deposit theamount within four weeks from the date of receipt of a copy ofthis order, he shall not be entitled to reap the benefit under thisorder. There shall be no order as to costs.”

The petitioner is required to make the deposit as per the aforementionedorders within four weeks from the date of receipt of the copy of the order. Nowhere in the petition, the petitioner had pleaded as to when he hadreceived the certified copy of the order in W.P.No.6437 of 2010 or a copy ofthe same on payment of usual charges. However, during the course ofhearing, it is submitted that a copy of the said order of this Court inW.P.No.6437 of 2010 was received on 18.03.2011 and therefore, the draftswere taken within four weeks time allowed by this Court. Be that as it may. Admittedly, the petitioner had not tendered the original drafts to VUDA/therespondent along with his representation. On this aspect, the petitioner’scase is that when he had tendered the original demand drafts, he was askedby the respondent to give the Photostat copies of the drafts only and that hewas advised to submit the original drafts immediately after getting the order ofre-allotment and that when he had subsequently approached the respondentto know the reason for non-acceptance of the original drafts he was informedthat two fresh civil suits in O.S.No.221 of 2010 on the file of the learned VIAdditional District Judge and O.S.No.937 of 2010 on the file of the learned IVAdditional Civil Judge at Visakhapatnam are pending in respect of thesubject property. The further case of the petitioner is that he was also

informed that the delay in payment would be condoned by the Vice Chairmaneven though the time prescribed by this Court is over as there were two civilcases pending. Thus, the fact that remains is that the petitioner had notdelivered the demand drafts obtained by him to the respondent and hadconsequently failed to make the deposit of the consideration with interest asdirected by this Court in the orders, which are extracted supra. It is importantto note that the writ petition is conspicuously silent in regard to the date ofrepresentation with which the original demand drafts were sought to betendered and the date of representation with which the Photostat copies ofthe two demand drafts were delivered to the respondent. A perusal of thematerial papers would show that a copy of the letter dated 23.11.2011addressed by petitioner to the Vice Chairman, VUDA is filed into the Courtalong with the writ petition where under a request regarding re-allotment ofthe subject plot was made. A perusal of the said letter would show that thesaid letter makes reference to – (i) the letter dated 10.01.1997 of therespondent; (ii) the orders of this Court dated 03.03.2011 in W.P.No.6437 of2010; (iii) the petitioner’s letter dated 13.04.2011 requesting for re-allotment;and (iv) the petitioner’s letter dated 13.06.2011 requesting for re-allotment. Acopy of the letter dated 13.04.2011, if any, is not filed with the writ petitionthough such a letter is a crucial letter. However, the letter dated 13.06.2011filed by the writ petitioner as exhibit P4, on a perusal, would show that alongwith said letter, the two demand drafts dated 13.04.2011 referred to suprawere submitted along with the request for re-allotment of the subject plot asearly as possible. Thus, the pleadings and the material record do not supportthe case of the petitioner that the original demand drafts weretendered/delivered to VUDA, within the time granted by this court inW.P.No.6437 of 2010. Since the writ petitioner had failed to establish that hehad complied with the orders of this Court in W.P.No.6437 of 2010 within thetime allowed by this Court, the default clause which has become operativeprecludes the petitioner from reaping the benefits of the order of this Court. Itis not out of place to note that the writ petitioner having filed a contempt casehad withdrawn the same for reasons best known to him.

9. Now, it is necessary to deal with the alternative contention advanced bythe learned senior counsel on behalf of the writ petitioner. The saidalternative contention is as under: ‘The respondent had stated in the letterdated 20.04.2012 that since two civil suits aforementioned are pending inrespect of the subject plot and that therefore, the orders of this Court inW.P.No.6437 of 2010 could not be implemented and that the case of thepetitioner would be considered after the disposal of the abovementioned civilcases. The respondent had agreed to reallot the plot and execute the saledeed even though the amount is not deposited by the petitioner within thetime allowed by this Court in view of the fact that the two civil suits arepending in the courts at Visakhapatnam. In view of the said stand taken bythe respondent, the petitioner is entitled to the relief claimed in the writpetition assuming for a moment that he is not entitled to reap the benefit of theorder of this Court in W.P.No.6437 of 2010 for non-deposit of the amountwithin the time allowed by this Court.’ In support of the said alternatecontention reliance was placed on the contents of the letter dated 20.04.2012,wherein the respondent had stated as follows:- “In the reference 2[nd] cited, you have given your willingness towithdraw the above contempt petition, requesting a communicationfrom VUDA on this matter.

As informed to you earlier about OS. 221/2010 and IA.897/2010 in OS. 221/2010 pending before the Hon’ble Court of the 6[th]Additional District Judge at Visakhapatnam and OS. 937/2010 which ispending before the Hon’bgle Court of the 4[th] Additional Junior CivilJudge at Visakhapatnam in respect of the Plot No.LIG-43/1, M.V.P.Layout, the Hon’ble High Court orders could not be implemented. Asagreed by you, your case will be considered after the disposal of theabove mentioned cases.”

10. However, the learned Standing Counsel for the respondent wouldcontend that when the writ petitioner is a defaulter, having not deposited theamount within the time allowed by this Court, he cannot take advantage of thealleged offer said to have been made by the respondent for the followingamong other contentions. Firstly, the petitioner having not deposited theamount within the time allowed by this Court and having suppressed thematerial facts in his writ petition is not entitled to any relief. Secondly, thewrit petitioner had not produced any evidence as regards the stage of the aforementioned suits and could not establish that the said civil suits havebeen finally disposed of in favour of the respondent. Thirdly, the writpetitioner, who is a defaulter and who is not entitled to reap the benefits of theorder of this Court, cannot lay a claim to the plot by offering to pay theconsideration which was directed to be paid by this Court, by order dated03.03.2011 as by now, the value of the property had increased multi-fold. Fourthly, after the S.A. no. 106 of 2006 was disposed of and the then earlierpending litigation has come to an end, even as on March 2010, therespondent had demanded the petitioner to pay consideration at the rate ofRs.28,000/- per square yard, subject to confirmation of the actual extent asper the ground position and hence, the petitioner cannot claim the plot byoffering to pay the original consideration of Rs.5,10,468/- with interest. Lastly, the respondent had stated in its letter that the case of the petitionerwould be considered after the disposal of the above mentioned suits, but didnot make an offer or promise that the plot will be re-allotted on the originalconsideration.

11. Now the short question is as to whether in view of the extracted contentsof the above said letter, the writ petitioner can be granted the relief as soughtfor in this writ petition.

12. The petitioner had failed to produce any evidence to show that the twocivil suits aforementioned have attained finality and were disposed of finallyin favour of the respondent and that the subject plot is now clear from anylitigation whatsoever. Be that as it may, the original allotment of the plot isonly a tentative allotment made in the year 1996 and the originalconsideration fixed at that time was Rs.5,10,468/-. In the orders dated03.03.2011 of this Court in W.P.No.6437 of 2010, the cost of the plot whichwas directed to be paid by the petitioner to the respondent was the originalsale consideration of Rs.5,10,468/- with interest at the rate of 12% per annumfrom 10.01.1997. Even by that date, the VUDA was unwilling to execute thesale deed at that cost as the cost of the plot as per the submissions of therespondent was Rs.28,000/- per square yard even by March 2010. Even bythat time also, the VUDA was wiling to execute the sale deed in respect of the

subject plot in favour of the petitioner provided the petitioner was willing andprepared to pay the consideration at the rate of Rs.28,000/- per square yardand on his undertaking that he will not implicate VUDA in any litigation. However, the petitioner who was not prepared to pay the consideration asdemanded by the VUDA had filed the writ petition. Since the petitioner wasdenied the benefit of enjoying the property in view of the then pendinglitigation and considering the fact that he would have been the beneficiary ofthe escalation of the price also, this Court, while not accepting the demand ofthe VUDA that the petitioner is required to pay the cost of the plot atprevailing market rate, i.e., at the rate of Rs.28,000/- per square yard, hadpermitted the writ petitioner to pay the original sale consideration ofRs.5,10,468/- with interest from 10.01.1997 at the rate of 12% per annum. Thus, on equitable considerations, this Court had permitted the petitioner toreap the benefits of the writ order by making it manifest that the deposit asdirected shall be made within four weeks from the date of the receipt of thecopy of the order. However, the petitioner had failed to produce the requiredstandard of evidence to establish that the deposit with interest was madewithin the time allowed by this Court. Thus, the petitioner is now has becomedisentitled to reap the benefit of the order of this Court. Further, the petitionerhad failed to prove that the suits O.S.No.221 of 2010 and O.S.937 of 2010have attained finality and that the said litigations had ended in favour of therespondent. The petitioner being a defaulter is now not entitled to the re-allotment of the plot and the execution of the sale deed in his favour onpayment of the original consideration fixed in the year 1997, which is far lessthan the present market value. Finally, as rightly contended by the learnedStanding Counsel for the respondent, no unconditional offer or promise wasmade by the respondent, but it was only stated by the respondent that thecase of the petitioner will be considered after the disposal of the suits.

13. The exercise of jurisdiction under Article 226 of the Constitution of Indiais discretionary and a writ is not issued as of right or as a matter of course.(Vide C.R.Reddy Law College Employees’ Association, Eluru, West Godavari District v. Bar Council of India, New Delhi)[[1]].Having regard to the reasons, this Court finds no acceptable merit in the alternativecontentions advanced on behalf of the writ petitioner. Having regard to thefacts of the case, this Court finds no reason to exercise discretion underArticle 226 of the Constitution of India in favour of the petitioner. Accordingly,this Court finds that in the facts and circumstances of the case, the petitioneris not entitled to the reliefs claimed in this writ petition.

14. In the result, the Writ Petition is dismissed, however, in the facts andcircumstances of the case without costs.

Miscellaneous petitions, if any, pending in this writ petition shall standclosed.

_____________________________

M. SEETHARAMA MURTI, J

31.12.2015BVV

[1]2004(5) ALD 180 (D.B)