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2015 DIGILAW 2677 (ALL)

Hari Om Sharma v. State of U. P.

2015-08-31

KRISHNA MURARI, MAHESH CHANDRA TRIPATHI

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JUDGMENT 1. Heard Shri Anil Bhushan, learned Senior Counsel assisted by Shri Neelabh Srivastava for the petitioner and Shri Chandra Shekhar Singh for the respondent-Avas Vikas Parishad. 2. Petitioner has approached this Court challenging the notice dated 12th May, 2009 (Annexure 14 to the writ petition) issued by Assistant Commissioner (Housing), U.P. Avas Evam Vikas Parishad requiring him to deposit the outstanding amount mentioned in the allotment letter dated 07.10.2008 within 15 days and to get the formalities completed, failing which the allotment shall be cancelled. A further writ of mandamus has been claimed commanding the respondent to charge the rate of the land in terms of the order dated 05.09.2003. 3. Facts of the case, in brief, giving rise to the dispute are as under. 4. Petitioner purchased an area of about 192.28 sq. mtr. of land from the erstwhile owner Jagdish Prasad vide registered sale deed dated 01.11.1999. However, subsequently, it transpired that the aforesaid land was subject matter of acquisition by Avas & Vikas Parishad, Uttar Pradesh (hereinafter referred to as 'Parishad') for establishing a residential colony at Sikandara. He made an application dated 30th September, 2000 for exemption of the said land from acquisition. Vide letter dated 15.01.2003 of Joint Housing Commissioner, the petitioner was informed that the matter has been referred to Samadhan Samiti and he may fill up the requisite form and deposit the processing fee of Rs.1000/- by means of a bank draft drawn in favour of the Parishad payable at Lucknow. Petitioner completed the formalities and deposited the requisite fee of Rs.1000/-. The Samadhan Samiti took up the matter in its 13th meeting dated 08.08.2003 and vide resolution no. 9, took a decision to allot an area of 192.28 sq. mtr. of land to the petitioner at the then prevalent rates, subject to the decision of the complaint case No. 31 of 2002 filed by one Suresh Kumar Ojha in District Consumer Forum, U.P. against the Parishad in respect of the said land. After the aforesaid decision by the Samadhan Samiti, vide letter dated 05.09.2003 Joint Commissioner Housing required the Executive Engineer, U.P. Avas Vikas Parishad, Agra to obtain consent of the petitioner and to take necessary steps accordingly and to submit a compliance report. Petitioner submitted his consent vide letter dated 01.11.2003. However, thereafter the matter remained pending at the end of the Parishad and no allotment letter was issued. Petitioner submitted his consent vide letter dated 01.11.2003. However, thereafter the matter remained pending at the end of the Parishad and no allotment letter was issued. Finally, a letter dated 12.09.2008 was issued to the petitioner by Assistant Housing Commissioner again sending his consent for allotment of plot no. 14/1, Sector 4A, area 192.28 sq. mtr. and to deposit a sum of Rs.61,100/- as registration fees. The petitioner deposited the registration fees of Rs.61,100/- by means of a bank draft drawn in favour of the Parishad. Thereafter, an allotment letter dated 07.10.2008 was issued to the petitioner. The allotment was made on the rates prevalent in the year 2008 for a consideration of Rs.11,22,945/-. 5. It is submitted by the learned counsel for the petitioner that his rights flow from the date of the decision taken by the Samadhan Samiti in its 13th meeting dated 08.08.2003 to allot the plot in his favour at the then prevalent rates and the Parishad is estopped from claiming any higher rates from the petitioner. It is further submitted that in pursuance to the decision taken by the Samadhan Samiti, petitioner was required to give a consent letter for allotment of the plot, which was duly submitted by him and, thus, the respondent-authority unnecessary took five years in issuing the allotment letter and they cannot be said to be justified to charge the higher rate prevalent in 2008 on account of their own default. 6. A counter affidavit has been filed on behalf of the Parishad, wherein the facts that decision was taken by Samadhan Samiti in 2003 to allot the plot at the then prevalent rates, has not been denied. What has been pleaded in the counter affidavit is that property number to the land could not be given in the lay out plan and the town planner vide his letter dated 26.07.2008 carved out the plot and allotted the numbers including plot no. 14/1 in Sector 4A. It is further pleaded in the counter affidavit that after the plot was carved out in July 2008, the Executive Engineer of the Construction division vide letter dated 06.09.2008 recommended for allotment of the plot in favour of the petitioner and thereafter vide letter dated 12.09.2008, petitioner was informed to deposit registration fees amounting to Rs.61,100/- along with consent letter. After the petitioner deposited the registration fees, plot no. After the petitioner deposited the registration fees, plot no. 14/1, Sector 4A, measuring area 192.28 sq. mtr. was allotted to the petitioner vide letter dated 07.10.2008 at the rate of Rs.6160/- per sq. mtr, which was prevalent in 2008. 7. Referring to the averments made in the counter affidavit, it has been submitted by the learned counsel for the respondents that since the petitioner deposited the registration amount in the month of October 2008, as such, he was allotted the land at the rate prevalent at that time and there is no illegality in the same. 8. A perusal of the averment made in the counter affidavit clearly demonstrates that after the decision of the Samadhan Samiti on 08.08.2003 to allot the plot in favour of the petitioner at the then prevalent rate, whatever delay has occurred in issuing the allotment letter, whether it be because of the fact that plot was not carved out in the lay out and the town planner carved out the same in July 2008, on the part of the Parishad. After the decision of the Samadhan Samiti, the petitioner was required to submit a consent letter, which was given by him on 01.11.2003. The respondent-Parishad did not take any further steps in the matter, though petitioner kept on agitating the issue by making representations. The respondent also cannot take shelter behind the fact that some dispute was pending before the Consumer Forum, which came to be decided in 2008, inasmuch as the decision of the Samadhan Samiti was to allot the land of the petitioner at the then prevalent rate, subject to the decision of the complaint case pending before the District Consumer Forum. 9. There is no material on record to justify five years' delay in issuing the allotment letter to the petitioner so as to justify the action of the respondent-Parishad to charge the rates prevalent in the year 2008. 10. In view of the above facts and discussions, the petitioner is entitled for allotment of the plot at the rates prevalent on 08.08.2003 when decision was taken by the Samadhan Samiti. 11. 10. In view of the above facts and discussions, the petitioner is entitled for allotment of the plot at the rates prevalent on 08.08.2003 when decision was taken by the Samadhan Samiti. 11. Under the interim order dated 22.07.2009 passed by this Court, the land was directed to be kept reserved for the petitioner, provided he deposits within a month the entire amount of which demand was to be made by the Parishad worked out at the rate prevalent on 08.08.2003 after adjusting the registration amount. In compliance of the aforesaid order, a demand of a sum of Rs.4,79,038/- was raised on 13.03.2010. In the rejoinder affidavit, it is stated that petitioner has deposited the said amount by means of two bank drafts on 09.04.2010. The deposit has been made within one month from the date of demand as directed by this Court. The fact is also not being disputed by the learned counsel appearing for the Parishad. 12. Since the petitioner is found entitled to allotment of plot at the rate prevalent in 2003, and has deposited the same in accordance with the demand raised by the respondent-Parishad in pursuance to the order dated 22.07.2009, nothing remains due to be paid by him, and the notice dated 12.05.2009 making demand of Rs.11,22,945/- is illegal and without any justification, and cannot be sustained. 13. Accordingly, notice dated 12.05.2009 raising a demand on the rate prevailing in 2008, impugned in this petition, is quashed. Respondent Avas Vikas Parishad is directed to complete the formalities for the allotment and handover possession of the plot in dispute to the petitioner within one month from the date of receipt of certified copy of this order. 14. Writ petition, accordingly, stands allowed. 15. However, there shall be no order as to costs.