Rajesh Kumar Tekriwal v. State of Himachal Pradesh
2017-10-18
AJAY MOHAN GOEL
body2017
DigiLaw.ai
JUDGMENT : Ajay Mohan Goel, J. The case of the petitioner in brief is that in the year 2009 respondent No. 2 had invited offers for flats which said respondent intended to raise at Housing Colony HIMUDA Apartment Kasumpti. Petitioner also applied for allotment of flat under Partially Self Financing Scheme in the said colony on 08.10.2009. Draw of lots was held on 06.04.2010 as per which, flat No. 3 Category-II in Block No. 16 stood allotted to the petitioner for which he also paid 2% choice money. The tentative cost of the flat was Rs.29,15,000/-. Allotment letter also stood issued to the petitioner dated 21.04.2010 (Annexure P-1). Vide Annexure P-4, the petitioner was informed by respondent No. 2 that Category-II Block No. 16 had been shifted to the hill side as the earlier proposed block was not feasible due to shifting of other blocks. It was also mentioned in the communication that due to shifting of the said block on hill side it will have garage instead of parking floors. Vide Annexure P-5 dated 18.08.2012, the petitioner was further informed that flat numbers have been kept as per allotment i.e. flat No. 1, 3 and 5 towards block and flat No. 2, 4 and 6 towards open side. As per the petitioner, as the location of the flats in Block No. 16 stood altered by respondent No. 2 without informing him, he sought requisite information under the Right to Information Act. According to him, information supplied to him demonstrated that respondent No. 3 had been allotted No. 2 which was at the back side of Block No. 16 towards the hill side and he had manipulated the things with respondent No. 2 regarding change of flat which request of his stood accepted without inviting any objections from other allottees. As per the petitioner, he visited the concerned authorities of respondent No. 2 on various occasions who had agreed that flat No. 3 would be allotted to him but the same was not done and accordingly, he was deprived the allotment of the flat which initially stood allotted in his favour. As per the petitioner, this entire exercise was undertaken by respondent No. 2 to confer undue benefit upon respondent No. 3. It is further alleged in the petition that sites for raising construction of flats stood altered without any actual change in the drawing.
As per the petitioner, this entire exercise was undertaken by respondent No. 2 to confer undue benefit upon respondent No. 3. It is further alleged in the petition that sites for raising construction of flats stood altered without any actual change in the drawing. In this background, the petitioner has filed the present petition praying for the following reliefs:- “(i) That the respondent No. 1 & 2 may be directed to produce total record of the case; (ii) That the respondents No. 1 and 2 may kindly be directed to abide by terms and conditions of Scheme under Partially Self Financing Scheme in Housing Colony HIMJUDA Apartment Kausmpti Shimla-9 and accordingly allot flat No. 3 in Block No. 16 to the petitioner and the order which has been passed for allotting flat No. 3 in favour of respondent No. 4 may kindly be set-aside and quashed. The respondents No. 1 and 2 may also be directed to adhere to the terms and conditions of the Scheme. (iii) That an inquiry may kindly be ordered to be initiated against erring officials of respondent No. 2 who have deviated from the original plan and are trying to give undue advantage to respondent No. 3 and 4. (iii) That the writ petition may kindly be allowed with costs. Any other suitable relief which this Hon’ble Court deems fit and proper under the given facts and circumstances of the case may also be passed in favour of the petitioner.” 2. In its reply filed by respondent No. 2, the said respondent has denied the allegations levelled by the petitioner. Stand of respondent No. 2 is that as per the original location of Block No. 16, flats No. 1, 3 and 5 were shown adjoining to Block No. 15 and flats No. 2, 4 and 6 were reflected on the open side at the time when choice of flat, block and floor was sought vide Annexure P-3. It is further mentioned in the reply that Block No. 16 was shifted towards hill side as construction of the same was not feasible on the earlier plan site. Shifting of the Block also resulted in the change of the numbering of the flats.
It is further mentioned in the reply that Block No. 16 was shifted towards hill side as construction of the same was not feasible on the earlier plan site. Shifting of the Block also resulted in the change of the numbering of the flats. It is further mentioned in the reply that respondent No. 3 who was allottee of flat No. 2 in Block No. 16 vide communication dated 26.07.2012 (Annexure R-2/2) objected to the said change in the numbering of the flats and called upon for the restoration of the same as per the original plan. On examination, it was also found that numbering of the flats in Block No. 16 was not shown as per the original lay out plan and thereafter it was decided to change the numbering of the flats as per the original lay out plan and allottees of Block No. 16 were intimated all these facts vide letter dated 18.08.2012 (Annexure P-5). On these basis, it is denied by respondent No. 2 that respondent No. 3 had manipulated the change of flat as was alleged by the petitioner. 3. Respondent No. 3 in its reply has also denied the allegations of the petitioner and has mentioned therein that on account of shifting of Block his position had been altered by respondent No. 2 and in this background, he represented to respondent No. 2 to restore the flat numbers as per the original lay out plan, which was accordingly done by respondent No. 2. 4. These are the respective pleadings of the parties. 5. I have heard learned counsel for the parties and have also gone through the records of the case. 6. Primarily, the dispute involved is as to whether the petitioner was handed over the flat which in the draw of lots initially was allotted in his favour or with the change of location of the Block, respondent No. 2 in connivance or in order to confer undue advantage upon respondent No. 3, allotted said flat to respondent No. 3 instead of the petitioner as alleged. 7. In my considered view, issue which stands raised by the petitioner herein involves highly disputed questions of fact which cannot be adjudicated by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 8.
7. In my considered view, issue which stands raised by the petitioner herein involves highly disputed questions of fact which cannot be adjudicated by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. 8. The scope of interference by this Court under Article 226 of the Constitution of India in matters involving seriously disputed questions of fact stands settled by the Hon’ble Supreme Court. In Dharam Dutt and Others Vs. Union of India and Others, (2004) 1 Supreme Court Cases 712, it was held by Hon’ble Supreme Court that disputed questions of fact which cannot be determined except after taking of evidence are not fit to be taken up for the purpose of adjudication in exercise of writ jurisdiction. 9. Similarly in Sanjay Sitaram Khemka Vs. State of Maharashtra and Others, (2006) 5 Supreme Court Cases 255, it has been held by the Hon’ble Supreme Court that matters involving disputed questions of fact cannot be dealt with in exercise of its power of judicial review by the High Court. Paras 8 and 9 of the said judgment are quoted herein below: “8. Having regard to the allegations and counter allegations made by the parties before us, we are of the opinion that no releif can be granted to the Petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law. 9. A Writ Petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the Petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution. 10. In State of Assam Vs.
We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution. 10. In State of Assam Vs. Bhaskar Jyoti Sarma and Others, (2015) 5 Supreme Court Cases 321, Hon’ble Supreme Court has held as under:- “19. In support of the contention that the respondents are even today in actual physical possession of the land in question reliance is placed upon certain electricity bills and bills paid for the telephone connection that stood in the name of one Mr. Sanatan Baishya. It was contended that said Mr. Sanatan Baishya was none other than the caretaker of the property of the respondents. There is, however, nothing on record to substantiate that assertion. The telephone bills and electricity bills also relate to the period from 2001 onwards only. There is nothing on record before us nor was anything placed before the High Court to suggest that between 7-12-1991 till the date the land in question was allotted to GMDA in December, 2003 the owner or his legal heirs after his demise had continued to be in possession. All that we have is rival claims of the parties based on affidavits in support thereof. We repeatedly asked the learned counsel for the parties whether they can, upon remand on the analogy of the decision in Gyanaba Dilavarsinh Jadega, adduce any documentary evidence that would enable the High Court to record a finding in regard to actual possession. They were unable to point out or refer to any such evidence. That being so the question whether actual physical possession was taken over remains a seriously disputed question of fact which is not amenable to a satisfactory determination by the High Court in proceedings under Article 226 of the Constitution no matter the High Court may in its discretion in certain situations enter upon such determination. Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.” 11. In Bank of India Vs.
Remand to the High Court to have a finding on the question of dispossession, therefore, does not appear to us to be a viable solution.” 11. In Bank of India Vs. Surendra Steel Industries Private Limited and Others, (2008) 17 Supreme Court Cases 672, Hon’ble Supreme Court has held: “At the outset, we would like to emphasise that the High Court erred in at all entertaining the petition of Respondent 1 under Article 226. This was not an appropriate jurisdiction to decide what was essentially a matter of pure contract which involved disputed questions of fact.” 12. From above it is clear that it is not appropriate for the High Court to entertain and adjudicate upon petitions which involve disputed questions of fact. In this writ petition the grievance which has been raised by the petitioner involves disputed questions of fact. Whether or not the flat which was initially allotted to the petitioner has been wrongly allotted to respondent No. 3 after the shifting of the Block is a disputed question of fact. Whereas, the petitioner by way of averments made in the petition has tried to justify that a wrong flat stands allotted to him, on the other hand, respondents No. 2 and 3 in their reply have tried to demonstrate that contention of the petitioner is incorrect as he has rightly been handed over the possession of the flat to which he was entitled after the shifting of the Block. All these contentions are undoubtedly disputed questions of fact which need to be substantiated by the respective parties by leading their respective evidence which cannot be done before this Court in a writ petition. 13. In view of the above discussion, as this writ petition involves highly disputed questions of fact, the same is accordingly dismissed with liberty to approach the appropriate Court of law/forum for the redressal of his grievance which stands raised by way of this writ petition. Miscellaneous applications pending, if any, also stand disposed of.