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2003 DIGILAW 1241 (ALL)

Deep Narain v. Commissioner

2003-05-21

MARKANDEY KATJU, R.S.TRIPATHI

body2003
ORDER : M. Katju, J. This writ petition has been filed for a writ of certiorari to quash the impugned order dated 3.12.1999, Annexure-1 to the writ petition and for a mandamus directing the respondents to handover charge of flat in question to the petitioner. 2. The controversy relates to plot No. 2/81 EWS Type-II ADA Colony, Sulemsarai, Allahabad, which was initially allotted to Deep Narain, and an agreement was executed in his favour. In paragraph 4 of the writ petition it is alleged that Deep Narain executed a power of attorney in favour of Munna Lal Kesarwani on 24.1.1991 and since then the latter is looking after the aforesaid plot and is in possession over the same. The Respondent No. 2 has issued a possession certificate in favour of Deep Narain. In paragraph 6, it is stated that since 24.1.1991, the Petitioner has been continuously depositing the monthly instalments vide Annexure-2 to the writ petition. 3. On 3.12.1999, the flat was allotted by the Respondent No. 2 in favour of the Respondent No. 3 and it is alleged that this was done without giving opportunity of hearing to the Petitioner. Hence the Petitioner moved an application dated 12.1.2000 for cancellation of the allotment but to no avail. Hence this petition. 4. A counter-affidavit has been filed and it has been stated in paragraph 4 of the same that the Petitioner sold the said house to one Munna Lal Kesarwani without permission from the A.D.A. It is alleged that the Petitioner has no right to sell the house to anyone without the permission of the A.D.A. The Petitioner did not deposit the instalments, within time and hence the allotment was cancelled on 29.10.1988 by the Vice Chairman, A.D.A. Thereafter Munna Lal Kesarwani filed an application before the A.D.A. that he is mukhtareaam of the flat and he may be permitted to deposit the instalments. However, the mukhtarnama produced by Munna Lal Kesarwani was not a registered deed. The Petitioner has been asked by the letters dated 19.3.1999 and 19.4.1999 of the Respondent to appear before it but he did not appear. Hence the allotment has been done in favour of Respondent No. 3 by the allotment committee and a sale deed has been executed in his favour. The Petitioner has been asked by the letters dated 19.3.1999 and 19.4.1999 of the Respondent to appear before it but he did not appear. Hence the allotment has been done in favour of Respondent No. 3 by the allotment committee and a sale deed has been executed in his favour. In paragraph 6 it is stated that the instalments of the flat were not paid by the Petitioner within time for which he was issued notices on different occasions. Hence his allotment was cancelled as per the rules. In paragraph 8 it is stated that mukhtarnama of Munna Lal Kesarwani was not a registered one, and on spot inspection illegal possession by unauthorized persons was found on the plot. In paragraph 10, it is stated that the Petitioner did not pay the instalments in time and he had no right to transfer the possession to Munna Lal Kesarwani. 5. In our opinion, there is no merit in this writ petition. It is well-settled that writ jurisdiction is discretionary jurisdiction and we are not inclined to exercise our discretion in favour of the Petitioner in this case. It is evident that Deep Narain purported to sell the property to Munna Lal Kesarwani without permission from the A.D.A., which was clearly illegal. Moreover he has not deposited the instalments within time. Hence there was nothing illegal in cancelling the allotment in his favour. As regards the allegation that opportunity of hearing was not given to the Petitioner, it has been stated in paragraph 11 of the counter-affidavit that Deep Narain was asked by several letters of the A.D.A. to appear before it and explain his conduct but he did not appear. Thus, opportunity of hearing was given to the Petitioner. As stated in paragraph 12 of the counter-affidavit reallotment has been done in favour of Respondent No. 3 who has deposited the entire amount. 6. Thus, there is no force in this writ petition and is accordingly dismissed.