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2016 DIGILAW 3743 (ALL)

PREM CHANDRA CHAUDHARY v. STATE OF U. P.

2016-11-18

ANANT KUMAR, SATYENDRA SINGH CHAUHAN

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JUDGMENT By the Court.—Heard Mr.Jaideep Narain Mathur, learned Senior Advocate assisted by Mr. Ashutosh Shukla, Advocate, learned counsel for petitioners, Mr. O.P. Srivastava, Senior Advocate, assisted by Mr. Kumar Ayush, learned counsel appearing for Lucknow Development Authority and perused the record. 2. Through this petition, the petitioners have challenged the order passed by the Lucknow Development Authority dated 25.10.2010, by means of which a demand has been made with the petitioners to deposit an amount of Rs. 21,98,165/- by the Lucknow Development Authority. 3. The brief facts, for disposal of present controversy, are that the petitioners purchased House No. 2/160, Vishwas Khand, Gomti Nagar, Lucknow from one Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali by way of a registered sale-deed. After execution of aforesaid sale-deed, the petitioners requested the Lucknow Development Authority for mutating their names. The name of the petitioners was thereafter mutated on 8.8.2000. It is to be noted that initially the house in question was allotted to one Smt. Kamar Jahan vide allotment letter dated 7.4.1984. Smt. Kamar Jahan had deposited all the dues as demanded by the Lucknow Development Authority and after completing all the formalities the Lucknow Development Authority executed lease-deed in favour of Smt. Kamar Jahan on 6th March, 1995. Smt. Kamar Jahan proposed to sell the house in question to one Smt. Meenakshi Kohali, for which permission was sought with the Lucknow Development Authority by means of application dated 6.3.1995 and the permission was ultimately granted vide order dated 3.5.1995. Thereafter, a registered sale-deed was executed by Smt. Kamar Jahan in favour of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali on 4.5.1995. The aforesaid persons applied for mutation, however, when the names of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali were not mutated, they filed Writ Petition being No. 1867 (MB) of 1995 and on 7.7.1995 this Court had given a direction to the Lucknow Development Authority to clarify as to why the application submitted by the petitioners for mutation of their names was not being disposed of and three weeks’ time was allowed to the Lucknow Development Authority to do the same. 4. Later on the said writ petition was disposed of finally vide order dated 5.7.1999 directing the Lucknow Development Authority to mutate the names of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali. In spite of that the mutation application of Smt. Meenakshi Kohali and Mr. 4. Later on the said writ petition was disposed of finally vide order dated 5.7.1999 directing the Lucknow Development Authority to mutate the names of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali. In spite of that the mutation application of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali was not decided by the Lucknow Development Authority, then they filed a contempt petition bearing Criminal Misc. Case No. 87 (C) of 2000, then the Lucknow Development Authority passed an order dated 1.9.1999 directing Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali to deposit an amount of Rs. 3,370/-. Thereafter, the Lucknow Development Authority vide order dated 7.2.2000 mutated names of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali in the records of Lucknow Development Authority. After mutation of the names of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali, they sold the house in question to the petitioners and prior to the execution of the sale-deed in favour of the petitioners, the petitioners examined all the relevant papers furnished by Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali and also examined the papers of original allottee Smt. Kamar Jahan including duly executed lease deed by the Lucknow Development Authority. Thereafter, the petitioners got the sale-deed executed in their favour by Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali on 15.5.2000. 5. After execution of the sale-deed the petitioners applied for mutation and at the time of mutation, nothing was demanded by the Lucknow Development Authority and names of the petitioners were mutated in the records of the Lucknow Development Authority in place of Smt. Meenakshi Kohali and Mr. Vinod Kumar Kohali on 8.8.2000. It is to be noted that when the petitioners verified the records of the property in question in Lucknow Development Authority, then it was found that a notice dated 12.4.1985 was issued to Smt. Kamar Jahan (original allottee), demanding balance amount of Rs. 20,000/-. It was further revealed that the aforesaid amount of Rs. 20,000/- was deposited by Smt. Kamar Jahan in UCO Bank in the account of Lucknow Development Authority on 26.10.1994. 6. The petitioners, thereafter, submitted an application on 27.11.2001 for declaring the property in question to be freehold by depositing the requisite fee as demanded by the Lucknow Development Authority i.e. 2% of the valuation of the property. 20,000/- was deposited by Smt. Kamar Jahan in UCO Bank in the account of Lucknow Development Authority on 26.10.1994. 6. The petitioners, thereafter, submitted an application on 27.11.2001 for declaring the property in question to be freehold by depositing the requisite fee as demanded by the Lucknow Development Authority i.e. 2% of the valuation of the property. The free-hold deed was not executed, then the petitioners wrote a letter dated 29.12.2006 to the Vice Chairman of the Lucknow Development Authority but no action was taken on their application. The petitioners thereafter wrote a letter dated 30.6.2007 to the Vice Chairman of Lucknow Development Authority. By this letter the petitioners prayed that necessary instructions may be issued to the Lucknow Development Authority to execute the free-hold deed. The petitioners all of sudden received a letter dated 25.10.2010, by which the Lucknow Development Authority asked the petitioners to deposit an amount of Rs. 21,98,165/- up to 1st December, 2010. The petitioner therefore wrote a letter on 9.11.2010 asking about the complete facts from the Lucknow Development Authority. However, the relevant facts were not supplied to the petitioners. 7. It is contended on behalf of the petitioners that some interpolation was done by the original allottee Smt. Kamar Jahan in connivance with the officials of the Lucknow Development Authority, as a result of which an amount of Rs. 20000/- was not deposited by Smt. Kamar Jahan and it was illegally shown to be deposited in favour of Smt. Kamar Jahan. It has been pointed out by the learned counsel for the petitioners that on account of the aforesaid interpolation in the records, the amount of Rs. 20000/- which was outstanding against Smt. Kamar Jahan was never deposited and the Lucknow Development Authority calculated the interest on the said amount and raised a demand against the petitioners for depositing the said amount. The learned counsel for the petitioners has submitted that no liability was ensured in respect of the aforesaid interpolation, neither any punishment has been awarded. The opposite parties delayed the matter with no final result. 8. The submission of learned counsel for the petitioners is that if any liability can be fixed, it can be fixed against the original allottee i.e. Smt. Kamar Jahan and the same cannot be realized from the petitioners who happen to be the third purchaser. The opposite parties delayed the matter with no final result. 8. The submission of learned counsel for the petitioners is that if any liability can be fixed, it can be fixed against the original allottee i.e. Smt. Kamar Jahan and the same cannot be realized from the petitioners who happen to be the third purchaser. The submission is that if the initial liability has not been fixed, then the same cannot be shifted against other persons, except the person who failed to deposit the amount and against whom it is alleged that she indulged into interpolation in connivance with the officials of the Lucknow Development Authority. It is also submitted that at an earlier point of time, this Court with a view to settle the matter amicably asked the petitioners to deposit an amount of Rs. 5,00,000/- with the Lucknow Development Authority and the petitioners in pursuance of the order of this Court submitted an application before the Lucknow Development Authority and have also filed an affidavit before this Court in which they have readily agreed to deposit the said amount as directed by this Court but the offer of the petitioners has been rejected by the Lucknow Development Authority. 9. The learned Senior Counsel Mr. O.P. Srivastava appearing on behalf of the Lucknow Development Authority states that the amount was due against Smt. Kamar Jahan and the petitioners being subsequent purchasers are liable to pay the said amount. The Lucknow Development Authority is a public body and, therefore, the public body cannot be made to suffer only on account of the reason that Smt. Kamar Jahan has sold the property. 10. We have heard the learned counsel for the parties and perused the record. 11. This Court while hearing the case passed an order on 10.5.2012, which reads as under : “After hearing learned counsel for parties at length on 9.5.2012, we had directed the respondents to consider whether, on payment of lumpsum amount of Rs. 5 lakhs in lieu of original amount of Rs. 2,40,000/-, the controversy may be settled at rest. Sri Rajesh Singh Chauhan, learned counsel for the O.P. No. 2 and 3, Lucknow Development Authority, Lucknow, submits that the matter has not been considered on account of any statutory provision. 5 lakhs in lieu of original amount of Rs. 2,40,000/-, the controversy may be settled at rest. Sri Rajesh Singh Chauhan, learned counsel for the O.P. No. 2 and 3, Lucknow Development Authority, Lucknow, submits that the matter has not been considered on account of any statutory provision. Keeping in view the facts and circumstances of the case, we direct the respondents to consider the petitioner’s case for amicable settlement on payment of Rs. 5 lakhs or in round figure by placing the matter before the Board. We have passed the order keeping in view the fact that the petitioner is not original purchaser. The house in question was purchased by original allottee from whom, another person has purchased the same and thereafter, the petitioner has purchased it at later stage being not aware with the dispute from the original allottee. Let decision be taken by the respondents through the Board. List after two months.” 12. After the aforesaid order, the petitioners gave an offer to the Lucknow Development Authority by moving an application, however, the application moved by the petitioners has been rejected. 13. The question before this Court is as to whether the amount sought to be realized from the petitioners can either be realized in the facts and circumstances of the present case. 14. We find that the petitioners happen to be the third purchaser. The property in question was initially allotted to Smt. Kamar Jahan. If any interpolation was done, Smt. Kamar Jahan took undue advantage of the same and she is to be penalized for the same. The petitioners who happen to be the third purchaser cannot be fastened with the aforesaid liability by any logic or any statutory liability whatsoever under any Act or Law. The offer given by the petitioners has been rejected by the Lucknow Development Authority finding that the offer is too less but we, in the facts and circumstances of the case, feel that it is an additional penalty upon the petitioners amounting to Rs. 5,00,000/- which has been directed to be deposited with the Lucknow Development Authority in view of the amicable settlement. The affidavit filed by the petitioners suggests that the petitioners tried to deposit the aforesaid amount of Rs. 5,00,000/-. Therefore, inspite of the fact that liability is not established upon the petitioners under the law, we direct the petitioners to deposit an amount of Rs. The affidavit filed by the petitioners suggests that the petitioners tried to deposit the aforesaid amount of Rs. 5,00,000/-. Therefore, inspite of the fact that liability is not established upon the petitioners under the law, we direct the petitioners to deposit an amount of Rs. 5,00,000/- with the Lucknow Development Authority and the Lucknow Development Authority will proceed to execute the freehold deed within a period of two months from today. Since the petitioners state that they have deposited the entire amount in respect of freehold separately, the amount so deposited shall be taken into consideration. 15. With the observations and direction made herein above, the writ petition stands disposed of.