@JUDGMENTTAG-ORDER
M.N. Bhandari, J.@mdashSince on same set of facts, similar relief has been claimed, with consent of the parties, all these writ petitions have been heard together and decided by this order. For convenience, facts of CW 10703/2012 are taken. The petitioner firm is one which was allotted shop No. E-5, measuring 10 x 40 feet in Goun Mandi Yard, Bagru, District - Jaipur on 18.5.2007 on 49 years lease. Subsequently, a lease agreement was executed on 13.6.2007. Therein, rate for allotment of the plot/shop was mentioned. The petitioner firm paid initial amount as per terms and conditions and was liable to pay further amount in phased manner. Subsequent to the allotment aforesaid, respondents further made allotment to others at the rate lower than what was given to the petitioner firm. At that stage, petitioner questioned the rate on which the allotment of shop was made in their favour. The writ petition is precisely to challenge the rates charged by the respondents for a shop allotted to the petitioner firm.
2. Learned counsel submits that petitioner applied and was allotted shop/plot in Goun Mandi Yard (Fruits & Vegetables), Bagru by the Krishi Upaj Mandi Samiti (Fruits & Vegetables), Goun Mandi Yard, Bagru. The petitioner paid initial amount and even executed lease deed at the rates mentioned therein but, subsequently, it was found that the allotment of shops in Grain Mandi, Bagru was on lower rate more so when the location of the land is one and the same. Even the DLC rate taken therein was Rs. 3500/- as is coming out from the order dated 11.8.2009 at annexure-12. The amount charged from the petitioner is at the DLC rate of Rs. 10,000/- per square meter. This is in contradiction to the order at annexure-12 referred to above. The calculation of the rates for allotment of shop should have been after taking DLC rate at Rs. 3500/- per square meter by taking item No. 10.2 of the DLC rates. The respondents took item No. 10.7 of the DLC rates of the area in ignorance of the fact that affidavit and earlier reply to representation dated 27.1.2011 given through Advocate are in conflict. The reference of item No. 10.4 of DLC has been given in the reply to the representation, whereas, while filing affidavit pursuant to the directions of this Court, reference of item 10.7 of DLC has been given though both item No. 10.4 and 10.7 are not applicable to the case in hand as it falls under item No. 10.2 giving location of the area and the rate therein. The DLC rate of the commercial property was Rs. 3500/- thus serious view may be taken against the respondents for giving contradictory facts to the Court with a view to mislead. It is also stated that the petitioner firm was allotted shop in the year 2007 and when allotment was made in second phase somewhere in the year 2008, the rates charges for allotment of the shop was Rs. 875/- per square meter i.e. 25% of Rs. 3500/- per square meter. It was also shocking that allotment aforesaid was for 99 years, whereas, lease period in petitioner''s case is of 49 years only. The difference of rates are apparently coming out in view of the aforesaid and shows arbitrary action on the part of the respondents for charging higher rate for allotment of shop. Accordingly, respondents may be directed to charge Rs. 875/- per square meter i.e. 25% of Rs. 3500/- for the shop allotted to the petitioner.
3. Learned counsel for respondents, on the other hand, submits that the rate charges for the shop in question cannot now be questioned once petitioner had accepted the allotment at the rate specified at the relevant time and executed lease deed. It is more so when the controversy has been raised after a lapse of five years from the date of allotment and lease deed was executed by the petitioner in agreement to the rates given therein on 13.6.2007. The petitioner is thus estopped from challenging the rate charged for allotment of shop in question.
4. It is further submitted that a confusion is tried to be created by mixing the land belonging to two different Mandi yards i.e. Fruit and Vegetable Mandi and Grain Mandi located in Bagru though both are adjacent to each other. The rate arrived at for allotment of the shops is as per the formula given by the government by evolving allotment policy as per judgment of the Division Bench of this Court. As per directions dated 6.8.2005, the rates for allotment of shops to the petitioner was by taking cost of the land plus 70% of the development charges to be divided by the area of the land. As per the aforesaid policy, the rates arrived at for allotment of shop to the petitioner came @ Rs. 8864/- per square meter. As against the aforesaid, allotment in Grain Mandi was in pursuance to the earlier policy. In fact, allotment of shops in Grain Mandi was made on rent basis on 18.6.1992. The State Government came out with the policy to give the shop/land on lease to such of the allottees if they prefer to take 99 years lease instead of continuing on rent. Therein, the rates to be charged was decided at 25% of the DLC rate thus the calculation of the rate was on a formula different than the formula made applicable on the petitioner. For Grain Mandi, the allotment of shops on rent basis was made in first phase somewhere in the year 1992, whereas, in Fruit and Vegetable Mandi it started on lease basis in the year 2006. The comparison in reference to the allotment of shops in Grain Mandi are erroneous, rather, cannot be compared with the allotment of shop in Fruit and Vegetable Mandi. The allotment of shops in two different Mandi was not only under different policy but in reference to different formula to calculate the rate of allotment of shop/plot. In the background aforesaid, rates charged for lease in Grain Mandhi cannot be applied to the allotment of shops made in Fruits and Vegetable Mandi.
5. Learned counsel for respondents further urged that a direction has. already been given not to apply order dated 11.8.2009 and DLC rate be charged @ Rs. 10,000/- per square meter with follow up action against those who have been allotted shop on the rate mentioned in the letter dated 11.8.2009. The respondents realised their mistake and issued instructions and to take follow up action as mentioned above. This was clarified even while sending the reply to the representation submitted by the petitioner and, for that para 5 of the said reply was referred. The decision aforesaid was not taken after filing of writ petition but much before it.
6. It is further stated that the item number of DLC rates mentioned in the reply to the representation/legal notice may be in variance to the affidavit but in substance it does not make any change because rates for item No. 10.4 and 10.7 is one and the same i.e. Rs. 10,000/- per square meter. In the background aforesaid, proper rate has been charged by the respondents and calculated on the formula given by the State Government, that too, in pursuance to the directions of the Division Bench of this Court. Therefore, the writ petition filed to challenge the rates charged for allotment of shop/plot, being devoid of any merit, may be dismissed.
7. I have considered rival submissions of learned counsel for the parties and perused the record.
8. The controversy in the present writ petitions is regarding rates charged for allotment of shop/plot in Fruit and Vegetable Mandi in Bagru. At the time of allotment of shop, the rate was indicated to the petitioner as is coming out from the allotment letter dated 18.5.2007 at annexure-3 followed by lease agreement on the agreed rate. The question is as to whether petitioner can challenge the rates once agreed not only at the time of allotment but in token of acceptance thereof while executing lease deed. The only-plea taken by the petitioner is regarding knowledge of the fact for charging lesser rate in the year 2008.
9. The writ petition does not challenge the lease deed in reference to the rates thus without touching the lease deed, challenge to the rates has been made, whereas, lease deed is nothing but mutual acceptance of terms and conditions by the parties and unless challenged, a direction contrary to it cannot be given.
10. This is only one part of the controversy. The ground of estoppel also has been raised against the petitioner and can be accepted in view of the execution bf lease deed without protest.
11. On the facts, allotment of the shop to the petitioner was in Fruit and Vegetable Mandi and Grain Mandi is adjacent to it. In view of above, it can safely be concluded that the DLC rate to be charged for the land in same area cannot be in variance. The perusal of the document at annexure-12 dated 11.8.2009 reveals DLC rate taken therein is Rs. 3500/- per square meter. It is in reference to DLC rate as given at item No. 10.2 of the DLC rates. However, it was explained by the respondents while sending reply to the representation/legal notice of the petitioner. It was informed that the clarification has been made about the mistake committed by the respondents by taking the rate of Rs. 3500/- per square meter as DLC rate of the area. It was much prior to filing of the writ petition. It was also indicated that follow up action was directed to charge DLC rate of Rs. 10,000/- for allotment of all the shops. In view of above, respondents had taken action not only on filing writ petition but before that i.e. at the time of sending reply to the representation made by the petitioner. Accordingly, the respondents themselves have disowned the order which may have been passed in mistaken belief of the rates to be Rs. 3500/- per square meter.
12. The question further comes as to whether rate Rs. 875/- per square meter can be charged from the petitioner as was charged from shop keeper of Grain Mandi while granting lease in the year 2008, that too, in the second phase. The issue aforesaid has been raised in ignorance of the fact that the allotment was no doubt made in the year 2008 but it was not for Fruit and Vegetable Mandi but for Grain Mandi. The formula for determination of the rate for the lease of the shop was different for Fruit and Vegetable Mandi than of Grain Mandi apart from different policy thus prayer to apply rate of 875/- per square meter cannot be accepted. Learned counsel for the respondents has clarified that initially in Grain Mandi the shops were rented out. The government, thereafter, evolved a policy to grant lease on payment of amount at the rate of 25% of the DLC rate and if someone fails to opt for it then to continue on rent. The allotment of shops in Grain Mandi was based on the aforesaid policy, accordingly, the rates charged from the allottees was on a different formula than what was charged from those allottees of shops in Fruit and Vegetable Mandi wherein it was by taking cost of land at the DLC rate plus 70% of development charges to be divided by the area of land. In view of above, the petitioner cannot compare the rates charged from those who are the allottees in Grain Mandi than to those who were allotted shops in Fruit and Vegetable Mandi under a different policy.
13. The respondents have filed additional affidavit to which a counter has been filed by the petitioners. In the additional affidavit, the order indicating DLC rates has been submitted apart from the formula of calculation of the cost of the plot for allotment. As per the documents indicating DLC rates, at item No. 10.2, the commercial rate of the shop was 3500/- per square meter, whereas, for item No. 10.4 and 10.7 it is at the rate of 10,000/- per square meter as on 21.12.2007. The variation of the DLC rate is due to location. According to the respondents, location of the land is what has been specified in item No. 10.7, whereas, according to the petitioner, it is as per item No. 10.2. The issue of location of the land so as the question of the DLC rates cannot be determined by this Court because it needs determination of question of facts.
14. In view of the discussion made above, I find that so far as challenge to the rate charged from the petitioners treating it to be higher than what has been charged from the allottees of the shops in Grain Mandi, cannot be accepted being under different policy and formula. It is further a fact that petitioners had accepted allotment followed by lease deed without protest and even the rate given in lease deed has not been challenged, if the prayer clause is taken note of. Unless the lease deed is questioned, the prayer made in the writ petition cannot be granted. In the result, writ petitions so as the stay applications are dismissed.
