Lila Ram Chawla and Another v. U. P. Avas Evam Vikas Parishad and Others
2010-07-23
PRADEEP KANT, RITU RAJ AWASTHI
body2010
DigiLaw.ai
Heard learned counsel for the petitioner Sri Mohd. Arif Khan assisted by Mohd. Adil Khan and Sri Mahesh Chandra, learned counsel for the Avas Vikas Parishad. The petitioners are in unauthorized possession over Plot no.14 C.P. 105 Rajajipuram Yojna, Lucknow since 1975, over which the petitioners are running a Saw Mill in the name of M/s Haryana Saw Mill. Avas Evam Vikas Parishad, Lucknow (hereinafter referred to as the Parishad) framed a scheme known as Tikait Rai Talab Colony, Lucknow which was to be executed adjacent to the land of the petitioners where they had established their Saw Mill. The petitioners made a representation for allotment of plot in question to the Housing Commissioner, of the Parishad. The actual date of application is not on record but in pursuance of the said prayer a letter was issued on 4th August 2000 by the Parishad intimating the petitioners that a decision has been taken that the land in question be allotted in their favour on payment being made by them of the amount determined, which was to be done by applying commercial rates over half of the area and for rest of the area, at residential rates. The petitioners, in response, submitted a letter dated 18 August 2000 saying that the rates may be calculated treating it to be residential area and not as commercial area. The matter was considered by the Parishad and the petitioners were informed vide letter dated 2nd February, 2001 that a decision has been taken to allot the plot having an area of 2033.60 squire meters to the petitioners by charging commercial rates of 1/3rd area and the rest 2/3rd area on residential rates. The petitioners were required to forward their consent to the aforesaid rates within 15 days. The petitioners on 14.02.2001 communicated their consent but in the said letter they also mentioned that the land is low lying i.e. 5 ft. low than the level of the road where the water logging takes place and there is no provision of sewerage, therefore, the land be levelled by putting earth and the provision be made for out let of the water.
low than the level of the road where the water logging takes place and there is no provision of sewerage, therefore, the land be levelled by putting earth and the provision be made for out let of the water. To this letter/request of the petitioners, the Parishad on 17.9.2001 informed them that if they are ready to take the plots on "as is where is basis" they may give their consent within 15 days and further that this was the last opportunity, if they wish to have the land. Parishad, however, did not find any ground for accepting the other request. The petitioners on 26.9.2001 again made a request as they had made earlier in the letter dated 14.02.2001, intimating their consent. Thereafter on 11.4.2002, the petitioners were informed by the Parishad that in view of the consent given by them for purchasing the land, 1/3rd at the commercial rate and 2/3rd at the residential rates, they were required to deposit 10% of the estimated price of the land in the shape of demand draft/pay order up to 25.4.2002. This amount was determined as Rs.4,90,000/- which was mentioned in the letter/order itself. The letter further says that the amount be paid within the stipulated period so that decision for allotment of the plot may be taken and allotment letter may be issued. In pursuance of the said requirement ,the petitioners did deposit an amount of Rs.1,00,000/- by two bank draft/pay orders each of Rs.50,000/- on 2.8.2002, i.e. after the given date 25.4.2002. After the deposits of the aforesaid amount of Rs.1,00,000/- the petitioners did not deposit the balance amount to the tune of Rs.3,90,000/-, which amount was deposited by the petitioners by means of two pay orders on 22.12.2009 and 31.12.2009 respectively. On 22.12.2009 the amount of Rs.3,90,000/- was deposited vide aforesaid pay order dated 22.12.2009 and the amount of Rs.,1,00,000/- was deposited under the pay order dated 31.12.2009. This amount of Rs.1,00,000/- was deposited, as the amount deposited earlier stood forfeited under the orders passed by the Parishad on 26.10.2009.
On 22.12.2009 the amount of Rs.3,90,000/- was deposited vide aforesaid pay order dated 22.12.2009 and the amount of Rs.,1,00,000/- was deposited under the pay order dated 31.12.2009. This amount of Rs.1,00,000/- was deposited, as the amount deposited earlier stood forfeited under the orders passed by the Parishad on 26.10.2009. Since the allotment letter was not issued, the petitioners wrote a letter on 16.6.2010 requesting that they have deposited Rs.3,90,000/- plus Rs.1,00,000/-, therefore, they be issued the allotment letter/order to which the Parishad replied vide letter dated 3.7.2010 that the petitioners did not give the consent within the time prescribed, therefore, their request was rejected by the Parishad on 16.12.2003 itself, on the basis of which, proposal for allotment was also cancelled. The petitioners were also refunded the bank draft/pay orders. It is against this order dated 3.7.2010 that the present writ petition has been filed, mainly asserting that the reason given therein, namely, the petitioners did not give their consent to the proposal given by the Parishad with respect to the rates on which the land was to be allotted, is factually incorrect. In support of this plea, attention of the Court has been drawn to the letter dated 14.2.2001 and 26.9.2001. In the letter dated 14.2.2001, in the first paragraph, consent has been given but in subsequent paragraph certain conditions were imposed in the shape of request. Parishad, however, wanted the petitioners to give an unconditional consent, therefore, they vide letter dated 26.9.2001 asked the petitioners to give their consent on "as is where is basis" but the petitioners again submitted almost same reply which they had given earlier. Here it is pertinent to mention that the plea of unconditional consent having been given or not, is not of much relevance in view of the fact that on 11.4.2002 the Parishad informed the petitioners that in view of the consent given by them, a decision has been taken to allot the land in their favour for which they had to deposit 10% amount of the estimated price upto 25.4.2002, which was specified as Rs.4,90,000/- in the letter dated 11.4.2002.
Thus, once the Parishad had accepted the consent as was extended by the petitioners and required them to deposit the amount, aforesaid, for considering the allotment and issuing allotment letter in pursuance of the decision so taken, the fact whether the consent earlier given was conditional or not loses its importance. The petitioners, however, did not comply with the aforesaid directive of making deposit of Rs.4,90,000/- within time as they had deposited only Rs.1,00,000/- that too belatedly as already observed above. The Parishad, therefore, took a decision on 26.10.2009 saying that despite repeated reminders being given, since the petitioners have not deposited the amount aforesaid, therefore, the proposal for allotment of land/plot is cancelled. This order dated 26.10.2009 though has been brought on record by the petitioners, themselves, but has not been challenged nor any relief for quashing of the said order has been sought for. Once the proposal for allotment was cancelled on 26.10.2009, there was no occasion nor any right or authority with the petitioners to deposit the amount of Rs.3,90,000/- and that of Rs.1,00,000/- without any order being passed by the Parishad. In the order dated 26.10.2009 it was also stated that the amount of Rs.1,00,000/- deposited by the petitioners stands forfeited. The amount, therefore, which has been deposited by the petitioner in December, 2009 by virtue of two pay orders was a wholly unauthorized deposit which had no sanctity or authority of the Parishad. Therefore, making of such deposit in the treasury or bank, in the account of Avas Vikas Parishad by a voluntary act and unilateral action of a defaulter can not be said to be a valid deposit in terms of the conditions on which the proposal for allotment was to be considered. The deposit was to be made only with the authority and permission of the Parishad which of course became extinct after the order dated 26.10.2009. The aforesaid order also says that this order has been passed in continuation of the order dated 16th December 2003, whereby the proposal for allotment was cancelled and the security was forfeited. The order dated 16th December 2003 has not been brought on record.
The aforesaid order also says that this order has been passed in continuation of the order dated 16th December 2003, whereby the proposal for allotment was cancelled and the security was forfeited. The order dated 16th December 2003 has not been brought on record. The argument that the order impugned i.e. 3.7.2010 is a non-speaking order and gives only one reason for cancelling the proposal for allotment viz consent was not given by the petitioners, within time, which is factually incorrect is also of no assistance to the petitioners as the letter is only a communication of the factum that the proposal for allotment of land already stands cancelled on 16.12.2003. The reason for cancelling the proposal for allotment has been specifically mentioned in the order dated 26.10.2009 (not under challenge), which can not be substituted or read otherwise by any recital made in the communication dated 3.7.2010. The petitioners, who were in unauthorized possession over the land in question, having been given the offer for allotment in the year 2000, did not comply with the essential and precondition of deposit of the requisite amount for more than full nine years, despite repeated reminders, can not find fault in the action of the Parishad in cancelling the proposal, rather they are to blame themselves, for inviting such an action/order. We, thus, do not find any force in the argument raised by the learned counsel for the petitioners so as to interfere in the matter under the discretionary jurisdiction of Article 226 of the Constitution. The writ petition is dismissed with the aforesaid observations.