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2003 DIGILAW 1657 (ALL)

KRISHAK SAHKARI AVAS SAMITI LTD KANPUR v. STATE OF U P

2003-07-25

MARKANDEY KATJU, R.S.TRIPATHI

body2003
M. KATJU, J. This petition furnishes a typical instance of a widespread malpractice which is going on in this Court, and possibly in other Courts too, of filing writ petitions in which material facts are concealed, knowing that once an interim order is obtained it can be continued indefinitely by various devices, taking advantage of the fact that due to the heavy arrears in the Courts there is often a great delay in deciding cases. 2. This writ petition had been filed in the year 1993 for a mandamus directing the State Government to regularize the sanctioned map in favour of the petitioner society. The petitioner has also prayed for a mandamus directing the respondents to treat the land as regularized in favour of the petitioner and also for mandamus directing the respondents not to interfere with the construction work of the petitioner and to refund the development charges paid by the members of the petitioner society. 3. The petitioner is a society and claims to be the owner of certain plots mentioned in paragraph 2 of the petition. In paragraph 3 of the writ petition it is stated that the petitioner submitted a map for sanction of construction of buildings vide Annexure-6 to the writ petition. The petitioner has alleged that it has paid the betterment and development charges. 4. In paragraph 5 of the writ petition it is alleged that the petitioner and its predecessor have been recorded in the revenue records in the Khasra and Khatauni vide Annexures-17 to 20 of the writ petition. 5. In paragraph 6 of the writ petition it is alleged that acquisition proceedings were started in 1982 although the petitioners had purchased the land in 1981 but no notice was sent to the petitioner although the petitioners name was recorded in the revenue record when the acquisition proceedings started. In paragraph 9 of the writ petition it is alleged that the petitioner society had purchased plots in good faith, and the Kanpur Development Authority (K. D. A.) had circulated a notice that the society should deposit the amount for regularization vide Annexures 23 and 24 to the writ petition. It is alleged in paragraph 10 of the writ petition that all the possession before 31-3-1990 has been regularized. 6. It is alleged in paragraph 10 of the writ petition that all the possession before 31-3-1990 has been regularized. 6. It is alleged in paragraph 13 of the writ petition that there are notifications dated 25-4-1984 and 16-6- 1992 that if the plots have been purchased by the society, the said land shall be exempted from the acquisition proceedings. True copy of the G. O. dated 25-10-1971, 25-4-1984 and 16-6-1992 are Annexures 25, 26 and 27 to the writ petition. The petitioner has alleged in paragraph 16 of the writ petition that in view of Section 360 of the Nagar Mahapalika Adhiniyam, 1959 the acquisition proceedings have to be treated as having abandoned. Similar provision exists in the U. P. Urban Planning and Development Act, 1973. 7. A counter-affidavit has been filed by the K. D. A. In paragraph 4 of the same it is stated that the sale- deed dated 11-5-1981 filed as Annexure-2 to the writ petition is not a sale-deed but is power of attorney executed in favour of one Amar Singh and not in favour of the petitioner society. The sale-deeds copies of which are Annexures 3, 4 and 5 have also been executed in favour of Amar Singh and not in favour of the petitioner. It is alleged that the disputed land was acquired by the K. D. A. long before the execution of the sale-deed and as such the petitioner was not the owner of the disputed plots. Moreover, a perusal of copies of these sale-deeds show that they are not registered documents. 8. In paragraph 5 of the counter-affidavit it is stated that the plan, copy of which is Annexure-6 to the writ petition, is not authenticated nor is supported by any document to show that it was submitted for approval. In paragraph 6 of the counter- affidavit it is stated that the petitioner has not paid any betterment or development charges. The receipts filed as Annexure-16 to the petition show that token payment was made by several different persons and not by the petitioner. Annexures 8, 9 and 12 are below show-cause notices issued by the K. D. A. to various persons against unauthorized construction and Annexures 10 and 11 are demolition notices. 9. The receipts filed as Annexure-16 to the petition show that token payment was made by several different persons and not by the petitioner. Annexures 8, 9 and 12 are below show-cause notices issued by the K. D. A. to various persons against unauthorized construction and Annexures 10 and 11 are demolition notices. 9. In paragraph 7 of the counter-affidavit it is stated that the name of the petitioner is nowhere recorded in the revenue records as is apparent from a perusal of the extracts of Khasra and Khatauni copies of which are Annexures 17 to 20 to the writ petition. The disputed land is recorded in the name of the respondent K. D. A. and to prove this extracts of khatauni 1397 and 1402-F have been filed as Annexure C. A.-1 to Annexure C. A.-5. 10. In paragraph 8 of the counter-affidavit it is stated that 16 disputed plots were acquired vide Award No. 10 dated 31-3- 1981 in respect of which notification under Section 357 U. P. Nagar Mahapalika Adhiniyam was published on 14-4-1952, 21-4-1952 and 28-4-1962 and notification under Section 363 of the Adhiniyam was published on 5-10-1963. The possession of the land was taken by the K. D. A. on 25-4- 1981. The remaining four plots were acquired by Award No. 39 dated 31-12-1968 in respect of which notification under Sections 357 and 63 was published and possession was taken over by the K. D. A. of Plot Nos. 153, 154 and 155 on 5-3-1979 while possession of plot No. 152 was taken on 6- 4-1984. It is further stated that the name of the petitioners was not recorded in the revenue records and these petitioners have claimed to have acquired the land by sale-deed in 1982 which was wholly illegal. Copy of Award No. 10 dated 31-3-1981 and possession certificates are Annexures C. A.-6 to C. A. 9. 11. In paragraph 9 of the counter-affidavit it is stated that the Award No. 39 dated 31-12-1968 was in respect of 4 plots No. 152 to 155 which was quashed by this Court in Writ Petition No. 800 of 1969 Smt. Raj Rani and others v. State of U. P. . Fresh notices were issued to the landholders on 5-3-1979 and the disputed land was finally acquired vide Award No. 10 dated 31-3-1981 vide Annexure C. A.-6 to the counter-affidavit. Fresh notices were issued to the landholders on 5-3-1979 and the disputed land was finally acquired vide Award No. 10 dated 31-3-1981 vide Annexure C. A.-6 to the counter-affidavit. This award has become final and it was never quashed by the High Court or the Supreme Court. In paragraph 10 of the counter-affidavit it is stated that the disputed land was acquired long time back by the K. D. A. The allegation of the petitioner that it purchased the land in dispute after the date of the award i. e. , 31-3- 1981 is not correct. The petitioner society is only an illegal and unauthorized occupant of the disputed land. The notices Annexures 23 and 24 were published by the K. D. A. for general information for regularization of unauthorized possession. The petitioner did not deposit the regularization charges. It is further stated that the K. D. A. had directed as a policy decision to regularize such cases which do not affect the scheme of the K. D. A. nor are otherwise detrimental to the town planning norms. In the present case the petitioner society did not apply for regularization. Token money had been deposited by individual persons and not by the petitioner. In paragraph 11 of the counter-affidavit it is stated that the petitioner was not owner of the disputed land which was acquired by the K. D. A. The petitioner illegally took possession of it. In paragraph 12 it is stated that the land acquisition proceedings had commenced several years before the petitioner society acquired the land and the award was also given before the so-called purchase of the land by the petitioner. As such it is alleged that the petitioner is not entitled to any exemption. The K. D. A. never notified for taking the land out of acquisition proceedings and the question of estoppel does not apply. 12. In paragraph 13 of the counter-affidavit it is stated that the major part of the scheme has already been executed and the work is in progress and the area has by and large been developed. As such it is false to say that the scheme has been abandoned. 13. An affidavit has also been filed alongwith the stay vacation application. In paragraph 13 of the counter-affidavit it is stated that the major part of the scheme has already been executed and the work is in progress and the area has by and large been developed. As such it is false to say that the scheme has been abandoned. 13. An affidavit has also been filed alongwith the stay vacation application. In paragraph 5 it is stated that the land in dispute has already been acquired by the Nagar Mahapalika, Kanpur whose successor is the K. D. A. Hence the petitioners have no right to hold the property. The total area of the scheme is about 27,678 sq. meters of the land in dispute and the K. D. A. has demarcated the plot as per layout of the scheme vide Annexure-1. It is stated in paragraph 7 that the K. D. A. is not able to develop or regularize the plots in favour of the persons concerned due to the interim order dated 27-3-1993 passed in this case. 14. In paragraph 9 it is alleged that the petitioner is only entitled to compensation and they cannot withhold the acquisition proceedings or the development or allotment of the land. 15. We have also perused the rejoinder-affidavit. 16. On the facts of the case we find no merit in this petition. As stated in the counter-affidavit, the land in dispute had already been acquired and the award had been given. It seems that by total concealment of facts the interim order dated 27-3-1993 was obtained by the petitioner. The facts mentioned in the counter-affidavit have been completely concealed in the writ petition. Thus the petitioner has not come to this Court with clean hands and this petition is liable to be dismissed on this ground itself. It is well- settled that when a person approaches this Court under Article 226 of the Constitution he must not conceal any material facts. The allegations in paragraphs 4 to 14 of the counter-affidavit have been completely concealed in the writ petition. Writ jurisdiction is equity jurisdiction, and will not be exercised in favour of a party who conceals material facts. 17. Moreover, it is evident from paragraphs 4 to 14 of the counter-affidavit that the land in question has already been acquired under the Land Acquisition Act and the petitioner have no right to the land in dispute any more. Writ jurisdiction is equity jurisdiction, and will not be exercised in favour of a party who conceals material facts. 17. Moreover, it is evident from paragraphs 4 to 14 of the counter-affidavit that the land in question has already been acquired under the Land Acquisition Act and the petitioner have no right to the land in dispute any more. At best they have right of compensation. 18. In view of the interim order of this Court dated 27-3-1993 the whole scheme has been obstructed. 19. A supplementary affidavit has also been filed by the K. D. A. and in paragraph 3 of the same it is mentioned that the plots in question are recorded in the name of the K. D. A. in the revenue paper of 1403-F. Copy of the khasra has been filed as Annexure S. A. 1. 20. Moreover, as is evident from the counter-affidavit the acquisition proceedings for acquiring the land had started several years before the petitioner society acquired the land, and the award was also given before the so-called purchase of the land by the petitioner. Hence there is no question of grant of exemption in favour of the petitioner. We also agree that there is no question of estoppel in this case. 21. As stated in paragraph 13 of the counter-affidavit, the major part of the scheme has already been executed and remaining work was in progress and area had been developed, but to the interim order of this Court dated 27-3-1993 further development was obstructed. We see no reason to continue the order dated 27-3- 1993 any further as it was obtained by concealment of facts and by abuse of the process of the Court. 22. As held by the Full Bench of this Court in Asiatic Engineering Co. v. Achhru Ram and others, AIR 1951 Allahabad 746 (vide para 51) a person who files a writ petition must come with clean hands and must not suppress relevant facts. Writ jurisdiction is discretionary jurisdiction and discretion will not be exercised in favour of a person who does not come with clean hands. The petitioner has not come with clean hands in this case and has suppressed very material facts stated in the counter-affidavit. Hence we are not inclined to exercise our discretion under Article 226 in his favour. 23. The petition is dismissed and interim order vacated. We further impose Rs. The petitioner has not come with clean hands in this case and has suppressed very material facts stated in the counter-affidavit. Hence we are not inclined to exercise our discretion under Article 226 in his favour. 23. The petition is dismissed and interim order vacated. We further impose Rs. 50,000 costs on the petitioner for concealing material facts in this petition. The cost must be paid within a month to the K. D. A. , failing which it will be recovered by the District Magistrate, Kanpur, Nagar as arrears of land revenue from the petitioner and paid to the K. D. A. The Registrar General of this Court will send copy of this judgment forthwith to the D. M. , Kanpur Nagar. Petition dismissed. .