V.K. Singhal, J. - (1.) The petitioners have challenged the order dated 28.2.94 by which they were required to make the payment of balance amount payable by the petitioners along with interest/penalty within 10 days and further prayer has made that the direction to pay a sum of Rs. 73.23 lacs by way of interest should be directed to be given by the respondent and they should be restrained in charging the interest at an existing rate of 15% or to act contrary to the settlement dated 30.1.93. The preliminary objections which was raised by the learned counsel for the respondent are that the petitioner has alternate efficacious remedy and the writ petition is not maintainable in the contractual matter. It is also submitted that since the questions which have been raised are disputed question of fact, therefore this Court should refuse to enter into the merits of the case.
(2.) The argument of both the learned counsel on the preliminary objections as well as on merit have been heard.
(3.) In order to appreciate the preliminary objections even on merit, the necessary facts relevant for consideration are, that an advertisement was issued by the respondent for auction of the property known as Old Motor Garage (near Amarpura) M.I. Road, Jaipur. The auction was held on 8.1.92 and the petitioners are the highest bidder. A writ petition No. 2841/92 was filed on 9.4.92 wherein a prayer was made to pass an order under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 (ULCAR) and directions were sought to remove the encumbrances and burdens on the land in question and also to have a joint measurement. The demand of the balance amount and penalty and interest was prayed to be quashed without removal of the statutory encumbrances and other burdens, and the letters written by the respondent from time to time were prayed to be cancelled. It was further prayed that the amount which has already been deposited should not be forfeited. The said writ petition was dismissed with cost of Rs. 1,5001- on 3rd July, 1992., It was decided in the writ petition that the petitioner has failed to make the deposit of 85 % of the amount within the stipulated time and the assurance of the J.D.A. has also taken into consideration that the land will be handed over free from all encumbrances including ULCAR Act. The oral assurances were denied by the respondent and on that basis it was observed that the Doctrine of Promissory Estoppel does not arise. The area of temple land measuring 37.50 sq.m. was reduced by letter dated 26th March, 92, and it was observed that all structures on the land were removed by the J.D.A. before issuing the demand notice and no structure or encroachment exists on the land. Since the matter was pertaining to contractual dispute the writ petition was held not a proper remedy. An appeal was filed against the judgment of the learned Single Judge. Before the decision of the said appeal, an agreement was entered into in the meeting held in the Chamber of Jaipur Development Commissioner on 30.1.93. The various points which were decided in the said meeting are as under:- "(i) Exemption from ULCAR : On deposition of the amount of Rs. 4 crore's as agreed in this agreement and on submission of the application before the State Government for exemption by the purchaser, the JDA will ensure that the exemption will be given within 60 days but if in any case except due to the default on the part of the purchaser the exemption is not issued within the stipulated period of 60 days, the purchaser will be entitled to claim interest @ 15% per annum. (ii) Exclusion of the Temple area : The main temple area including the passage area,, will be excluded from the allotment and no cost of the land so excluded will be charged. Set backs and Coverage Area : The purchaser will be allowed to construct up to the extent of 62.5% of the ground area and it on any reasons 62.5% ground coverage does not become available under the main building, the set backs on the Motilal Atal road side shall be suitably modified for the main building, subject to the condition that the total built-up area shall under no circumstances exceed to 62.5% of the plot area. Subject to the above, these constructions will be made strictly in accordance with the prescribed building norms and parameters as per JDA Building Regulations. Maps to the approved in 60 days subject to the maps being in accordance with the auction conditions and bye-laws. Terms of payment (i) Rs. 2 crores to be paid today i.e. on 30th Janaury, 1993 towards the balance dues. (ii) Rs. 2 crores to be paid by 20th February, 1993. (ii) Balance outstanding amount to be paid in monthly instalments subject to the condition that each instalment shall be of a minimum amount of Rs. 25 Lacs plus the interest payable on such instalment and the whole of the outstanding auction plus interest amount shall be paid within a maximum period of 12 months from the date of this agreement. Interest @ 18% per annum shall be payable on the outstanding unpaid amount with effect from the date of this agreement. Physical possession of the whole of the property shall be handed over to M/s. K.K. Complex Ltd. as soon as Rs. 4 crores is realised as per this agreement. Boundary on Amarpura temple side to be constructed by J.D.A. up to the temple point i.e. so as to enclose the approach to temple from M.I. Road. The lease deed shall be executed by J.D.A. in favour of purchasers only after receipt of full payment payable by the purchasers. Neither the petitioner nor the J.D.A. will go to any Court against this compromise. Without prejudice to the terms of this agreement the Hon'ble High Court shall independently decide the question as to the claim for interest and penalty, for the period prior to the date of this agreement/clarification. In the event of any default by the purchaser, in payment of the dues, the allotment will stand automatically cancelled and the entire land along with the constructions, if any, will stand vested in J.D.A. without any encumbrance. No further notice by JDA would be necessary for the above. (Note) The Secretary was present during the major part of discussions, but could not be present during the signing of the Agreement, as he had to go elsewhere.";