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2013 DIGILAW 2975 (ALL)

Amar Kumar v. State of U. P.

2013-12-09

ASHOK PAL SINGH, DEVI PRASAD SINGH

body2013
JUDGMENT Heard learned counsel for the petitioners, learned Standing Counsel, Sri J.N. Mathur, learned Senior Counsel appearing for the Lucknow Development Authority, Lucknow and perused the records. 2. Since, in these bunch of writ petitions, common question of law and facts are involved, hence, they are being decided by a common judgment and order. 3. According to learned counsel for the petitioners, the petitioners have applied for allotment of plots /flats in the scheme, namely, Nehru Enclave situated in Gomti Nagar, Lucknow, in pursuance of the scheme floated by Lucknow Development Authority, Lucknow. The petitioners have fulfilled necessary conditions and their applications forms were found to be eligible for allotment of plots/flats in terms of information brochure. Admittedly, the petitioners had deposited entire costs of the flats/plots. However, on account of dispute between the Lucknow Development Authority and the Army, a part of the scheme could not be materialized. In consequence thereof, the petitioners could not be allotted flats/plots. The scheme is of the years 1991-1994 and all the petitioners have deposited the amount in terms of information brochure and the scheme with regard to costs of the flats/plots. Since then, the petitioners are running from pillar to post for allotment of the flats/plots, but, Lucknow Development Authority has failed to fulfill the dream of their houses/flats. 4. A common argument has been advanced by learned counsel for the petitioners that majority of the petitioners have applied for allotment of flats/plots after taking loan from the Bank or other financial institutions, and they are now facing extreme hardship on account of non-delivery of possession of flats / plots. 5. Sri J.N. Mathur, learned Senior Counsel appearing for Lucknow Development Authority submits that Lucknow Development Authority is ready to refund the amount deposited by the petitioners alongwith interest @ 9%. However, submission of learned counsel for the petitioners is that now it is beyond the reach of the petitioners to purchase the flats/plots at the current rate since they have already taken loans from different Banks and also have deposited the outstanding dues in terms of allotment letter to Lucknow Development Authority. Further submission of learned counsel for the petitioners is that the petitioners have fulfilled the required terms and conditions of the allotment letters issued in consequence thereof. They have also deposited the entire amount of flats/plots. Further submission of learned counsel for the petitioners is that the petitioners have fulfilled the required terms and conditions of the allotment letters issued in consequence thereof. They have also deposited the entire amount of flats/plots. Now, it is not open for the Lucknow Development Authority to withdraw from its liability with regard to allotment of flats/plots. It is also submitted that the petitioners are ready to opt for alternative flats/plots in terms of allotment made in the years 1991-1994. 6. Arguments advanced by learned counsel for the petitioners carry weight. The citizens who had applied for allotment of flats/plots in the years 1991-1994 and have deposited the entire costs of land in lieu of allotment letters issued to them, ordinarily, they should not be deprived of the allotment of flats / plots. 7. Being the Government instrumentality, it was bounden duty of Lucknow Development Authority to provide alternative accommodations to the petitioners in terms of original allotment order. In case, the scheme with regard to Nehru Enclave is suffering from some problems, then it is not expected from Development Authority to act like a private company. In the allotment of houses, once Lucknow Development Authority or the State Government or its instrumentality are involved in commercial activity, then their standard of working must be different from the private sectors, keeping in view the interest of the public as well as plights of the citizens. 8. Learned counsel for the petitioners have invited attention of this Court towards recent judgment passed in Writ Petition No. 11737(M/B) of 2011(Rashid Umar Vs. The Chairman L.D.A., Lucknow & others) dated 04.12.2013. Para -19 of the aforesaid judgment is reproduced as under : “Ordinarily, it is not permissible for development authorities as well as colonizers to shift the place of allotted plot or flat to an another place or cancel the allotment merely on payment of interest unless they have some justifiable, compelling and lawful reasons to do so. In that case also it shall be always incumbent on the development authorities or colonizers to allot the same nature and category of flats or plots to such allottees. A justifiable compelling and lawful reason, for example may be where the development authorities' own title of the property has been revoked. In that case also it shall be always incumbent on the development authorities or colonizers to allot the same nature and category of flats or plots to such allottees. A justifiable compelling and lawful reason, for example may be where the development authorities' own title of the property has been revoked. In case development authorities or the colonizers continue with lawful possession of the area which has been allotted to the allottees, then in such a situation, they will not have right to cancel the allotment or shift the place of allotment to other area may be, with a provision to refund the amount deposited by the allottees for the purpose with interest. Subject to above, in any case, for some lawful reason, the possession is not delivered and allotment cannot be materialised, then it shall be obligatory on the part of the development authorities or the colonizers to provide other plot or flat as the case may be, on the same cost which has been deposited by the allottee. The reason is that at a point of time when the citizen books the flat or plot at a location of his or her choice, the decision is taken keeping in view the financial viability as well as location. It is not necessary that after sufficient long period, the citizen will be able to purchase a plot or flat on the revised price. Hence they cannot be penalised for commission or omission on the part of the development authorities or the colonizers. 9. In view of above, we are of the view that in case petitioners are not ready for refund of their amount alongwith interest @ 9 per cent, then Lucknow Development Authority cannot compel them to receive back the money which has been deposited by them in the years 1991-94. Being the instrumentality of the State, it shall be open to Lucknow Development Authority to adjust the petitioners amount in some other schemes or appropriate place and allot them flats/plots, as the case may be, on the very price which they have deposited in the years 1991-94. 10. In one another case, Ganesh Prasad Vs. Lucknow Development Authority, Lucknow reported in 2011(29) LCD 2541, this court considered the situation where the allottees deposited the cost of the land and yet Lucknow Development Authority failed to deliver them possession of their flats/plots. 10. In one another case, Ganesh Prasad Vs. Lucknow Development Authority, Lucknow reported in 2011(29) LCD 2541, this court considered the situation where the allottees deposited the cost of the land and yet Lucknow Development Authority failed to deliver them possession of their flats/plots. More or less a similar situation was also considered by this Court in the case of Kiran Yadav Vs. Commissioner, Lucknow & others in Writ Petition No. 1855 (M/B) of 2004. 11. It has been held in the case of Ganesh Prasad (Supra) and Kiran Yadav (Supra) that once the entire costs of the plots/flats are deposited, then any inaction on the part of Development Authority amounts to arbitrary exercise of power and unjust enrichment from the costs of flats/plots deposited by the allottees. Such allottees shall be entitled for payment of interest till possession of plots/flats are not handed over and they may also claim damages from the competent court or forum. 12. We have been informed that the Judgment of this court in the case of Ganesh Prasad (Supra), has been affirmed by Hon'ble Supreme Court and the SLP has been dismissed. 13. In view of above, there appears no reason on the part of Lucknow Development Authority to compel the petitioners to take back the costs of lands/plots deposited by them with Lucknow Development Authority and Lucknow Development Authority may give the plots/flats to the petitioners allotted in any other schemes which they are running in the District of Lucknow. 14. In view of above, we allow these bunch of writ petitions. 15. Accordingly, a writ in the nature of mandamus is issued directing Lucknow Development Authority, Lucknow to allot the alternative flats/plots to the petitioners in terms of original agreement and information brochure and the costs deposited by them without charging any additional costs for the purchase of land. It shall be open to the petitioners to move fresh applications within a month from today and thereafter Lucknow Development Authority shall deliver possession of the plots/flats expeditiously, say within a period of four months. Keeping in view of the law laid down in the case of Ganesh Prasad (Supra), petitioners shall be also entitled for interest on the amount which they have deposited in the years 1991-94. Keeping in view of the law laid down in the case of Ganesh Prasad (Supra), petitioners shall be also entitled for interest on the amount which they have deposited in the years 1991-94. For that, we leave it for open the petitioners to move applications for payment of interest on the amounts deposited by them in the light of Judgement of Ganesh Prasad's case (Supra). In case any application is moved by the petitioners, the same shall be considered by the Lucknow Development Authority. 16. The order passed shall not come into petitioners' way with regard to allotment of lands/ plots at alternative site. 17. This order shall be applicable to those allottees who have not accepted the costs of flats/plots from the Lucknow Development Authority.