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2018 DIGILAW 488 (ALL)

ALKA R. MAHAJAN v. STATE OF U. P.

2018-02-22

BALA KRISHNA NARAYANA, IRSHAD ALI

body2018
JUDGMENT : (Delivered by Hon'ble Irshad Ali,J) Heard Sri Ashutosh Mishra, learned counsel for the petitioner, learned Standing counsel for the respondent no. 1 and counsel for the respondent nos. 2 to 4. By means of the present writ petition, the petitioner has challenged the order dated 27.12.2006 passed by respondent no. 2 whereby the allotment of flat made in favour of petitioner Smt. Alka R. Mahajan has been cancelled. Learned counsel for the petitioner submitted that a scheme, code no. 2001-2002 (H) (03) was published by the New Okhla Industrial Development Authority for the allotment of flats by way of draw of lots. The petitioner applied vide Application No. 700 dated 5.1.2002 under the aforesaid scheme from her address 71/A Muirabad, Opposite St. Peters Church, Allahabad. He further submitted that the petitioner due to a matrimonial dispute with her husband, was living separately from her husband, hence, she moved the aforesaid application by enclosing banker's cheque No. 900749 as Rs. 2 lacs drawn on Punjab National Bank Naraina Vihar, New Delhi on 5.1.2002. In pursuance to the said application, the petitioner was allotted HIG Flat in Sector-52 NOIDA and in pursuance thereof a letter was issued to her on 11.1.2002 and thereafter, permanent allotment letter was issued to the petitioner on 26.4.2002, accordingly, Flat No. 9-B Block E-5, Sector 52, NOIDA was allotted to the petitioner. He further submitted that the petitioner had also deposited certain amount in installments with the NOIDA. Learned counsel for the petitioner has also pointed out that between 5.7.2001 to 12.2.2004 petitioner had no relation with her husband and the petitioner was not aware about his activities. The husband of the petitioner also applied for allotment of flat and the same was allotted to him in the aforesaid scheme which was not permissible in law in view of the conditions given in sub para (ii) of para 19 of the terms and conditions of the said scheme. Thus, the NOIDA issued a notice to the petitioner on 11.7.2005 to show cause why the allotment of flat made in her favour be not cancelled on the ground of her husband being allotted separate flats under the scheme code no. 2001-2002 (H) (03), which was contrary to the said provision of the scheme. The petitioner submitted her reply on 28.7.2005 in which she stated that the husband of the petitioner Mr. 2001-2002 (H) (03), which was contrary to the said provision of the scheme. The petitioner submitted her reply on 28.7.2005 in which she stated that the husband of the petitioner Mr. Romi Mahajan had moved an application on 3.5.2005 before the NOIDA, due to matrimonial dispute between them on account of which they were living separately, in ignorance of the fact that an application was moved by his wife also for the allotment of flat in the same scheme and when the aforesaid fact cause came to his knowledge, he moved an application for surrendering the flat allotted to him with the request to cancel his allotment. The application of the husband of the petitioner was entertained and his application for surrendering of the allotment of flat was accepted and the amount deposited by the husband of the petitioner was refunded on 25.11.2005. In the meantime, one Sri Shashi Saxena moved an application before NOIDA to purchase the flat which was allotted to the petitioner, thereafter, a notice was issued to the petitioner on 3.5.2005 which was duly replied vide reply dated 13.5.2005. After submission of reply by the petitioner a notice dated 25.8.2006 was issued to the petitioner calling upon her to show cause why the allotment of the Flat No. 9-B, Block E-5, Sector 52, NOIDA made in her favour be not cancelled. The aforesaid notice was duly replied by the petitioner vide reply dated 13.9.2006. The respondent vide order dated 27.12.2006 cancelled the allotment of Flat No. 9-B, Block E-5, Sector 52, NOIDA made in favour of the petitioner. Learned counsel for the petitioner next submitted that the respondent while passing the impugned order dated 27.12.2006 did not take into consideration of her reply. He further submitted that once the husband of the petitioner surrendered his flat and his application was accepted and the earnest money refunded, the respondent committed gross illegality in passing the order impugned dated 27.12.2006. Learned counsel for the petitioner also submitted that the respondent no. 2 is interested to allot the petitioner's flat to a person of his own choice so the action is arbitrary and illegal. He further submitted that due to non consideration of the reply of the petitioner the impugned order suffers from vice of violation of principles of natural justice. Learned counsel for the petitioner also submitted that the respondent no. 2 is interested to allot the petitioner's flat to a person of his own choice so the action is arbitrary and illegal. He further submitted that due to non consideration of the reply of the petitioner the impugned order suffers from vice of violation of principles of natural justice. We have considered the rival submissions advanced by the learned counsel for the parties and perused the material on record. On bare perusal of the impugned order dated 27.12.2006, it is apparent on the face of it that the reply submitted by the petitioner has neither been adverted to nor taken into consideration. The respondents while passing the impugned order dated 27.12.2006 violated the Rules of principles of natural justice in not considering the reply submitted by the petitioner, thus, the impugned order which has been passed in violation of principles of natural justice cannot be sustained. Accordingly, we quash the order dated 27.12.2006 and remit the matter back to the respondent no. 2 with a direction to him to pass a fresh order in accordance with law after affording opportunity of hearing to the petitioner and considering her reply within a period of one month from the date of production of certified copy of this order before him. The Writ petition succeeds and is allowed. No order as to costs.