Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 2242 (ALL)

Sunita Devi v. State Of U. P.

2024-10-23

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

body2024
JUDGMENT : Ashwani Kumar Mishra, J. (Ref:- Civil Misc. Recall Application No. 03 Of 2023) 1. Petitioners, by means of the instant recall application, have sought recall of the order dated 20th November, 2023 passed by this Court in the present writ petition. It is contended that correct facts have not been noticed while disposing of the writ petition and the petitioners’ grievance has not been adverted to. 2. The petitioners have claimed following reliefs in the present writ petition:- “(I) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities not to charge the amount as mentioned in allotment letters for the quarters in Adarsh Colony Haiza Hospital, Allahpur, Prayagraj (Annexure No.10 to the writ petition). (II) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to abide by their own policy with respect to circle rate of Adarsh Colony, Haiza Hospital, Allahpur, Prayagraj (Annexure No. 10 to the writ petition). (III) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent authorities to take a decision on the representation of the petitioners dated 19.08.2023 (Annexure No. 11 to the writ petition). (IV) to issue any other suitable writ, order or direction in the nature as this Hon’ble Court may deem fit and proper to meed the ends of justice under the facts and circumstances of the present case. (V) to award cost of the writ petition to the petitioners.” 3. This Court had disposed of the writ petition vide following orders dated 20.11.2023:- “Petitioners appeared to have been allotted a house by the respondent Nagar Nigam under some policy of the Government to relocate the displaced persons. It is asserted by the petitioners that they are living in the premises for last more than 20 years and have also paid the entire consideration warranted to be deposited by them for execution of transfer deed. It is urged that the authorities are not executing transfer deed and are acting arbitrarily in the matter. Sri Arun Kumar, appearing for the Nagar Nigam states that petitioners have been informed of the dues payable by them, and in the event they deposit the same, their claim for execution of transfer deed would be considered as per law. It is urged that the authorities are not executing transfer deed and are acting arbitrarily in the matter. Sri Arun Kumar, appearing for the Nagar Nigam states that petitioners have been informed of the dues payable by them, and in the event they deposit the same, their claim for execution of transfer deed would be considered as per law. Learned counsel for the petitioners, in reply, submits that the amount due and payable towards the property in question has already been deposited. Be that as it may, in the facts of the case, it would be appropriate to permit the petitioners to represent their grievance before respondent no.2, annexing all relevant materials in support of their claim, alongwith a certified copy of this order, within two weeks from today. The second respondent shall get the petitioners' claim examined, in accordance with law, by passing an appropriate reasoned order, within a further period of two months, thereafter. All consequential action shall be taken in terms of such determination, without further loss of time. With the above observations/directions, this writ petition stands disposed of.” 4. It is asserted that the authorities have arbitrarily determined the amount payable vide allotment order (Annexure-10 to the writ petition), inasmuch as the circle rate of area has been determined on a higher rate. It is also urged that the recital in the first paragraph of the order dated 20.11.2023 that petitioners have deposited the entire consideration for execution of transfer deed is factually incorrect and apparently facts of a different case are inadvertently mentioned in the order dated 20.11.2023. 5. We have heard Sri Abhishek Bhushan, learned counsel for the petitioners, learned Standing Counsel for the State and have perused the material on records. 6. In order to appreciate the contentions advanced on behalf of applicants-petitioners, certain background facts require narration at the outset. 7. Petitioners allege that under a scheme sponsored by the State Government, 142 one room residential quarters were constructed in Haija Hospital Compound, Allahpur, Allahabad. Under the scheme those persons, who were displaced on account of construction of these quarters, were required to be rehabilitated. According to the petitioners 92 persons were allotted quarters in the scheme and possession was handed over to them. 8. In paragraph no. 10 of the writ petition, it is admitted that petitioners were not allotted quarters in the scheme. Under the scheme those persons, who were displaced on account of construction of these quarters, were required to be rehabilitated. According to the petitioners 92 persons were allotted quarters in the scheme and possession was handed over to them. 8. In paragraph no. 10 of the writ petition, it is admitted that petitioners were not allotted quarters in the scheme. One Susheela Devi filed Writ Petition No.53724 of 2005 in which an interim protection was issued by this Court on 5.8.2005, which is reproduced hereinafter:- “Tag and list this petition along with the records of writ petition no. 22647 of 2005. We are informed that the petitioners have deposited requisite amount i.e. Rs. 10,000/- or Rs. 15,000/- as the case may be, with the Nagar Nigam. Learned counsel for the Nagar Nigam informed that flats required to be offered to the petitioners, in lieu of aforesaid payment are ready and entire exercise of issuing relevant allotment order and handing over possession can be completed within one month from today. Let desired exercise be undertaken. The petitioners undertake, through their counsel, that they shall vacate the premises in their possession, as on date, within one week of receiving orders/letter of allotment coupled with order to take possession of alternative flats. In case any of the petitioners finds difficulty in obtaining possession he may approach the court within that one week itself. After expiry of one month from today, subject to the compliance of the above order of making available alternative accommodation by allotment, Nagar Nigam shall approach this Court for further orders of dispossessing rank trespassers/ encroachers. List on 22nd August 2005.” 9. Though petitioners claim that under the aforesaid orders, they too were entitled to allotment but from the records, it is apparent that none of the petitioners were a party to the Writ Petition No.53724 of 2005 and it is not clear as to on what basis the petitioners claim protection of the order dated 5.8.2005, passed in the writ petition of Susheela Devi. It is then stated that on 25.9.2009 fresh applications were invited by Nagar Nigam, Prayagraj for allotment of houses. Security deposit of Rs.10,000/- was required to be made. The petitioners claim that they deposited Rs.10,000/- and Rs.15,000/- under the scheme for allotment of a quarter. Paragraph nos. It is then stated that on 25.9.2009 fresh applications were invited by Nagar Nigam, Prayagraj for allotment of houses. Security deposit of Rs.10,000/- was required to be made. The petitioners claim that they deposited Rs.10,000/- and Rs.15,000/- under the scheme for allotment of a quarter. Paragraph nos. 12, 13 and 14 of the writ petition disclose the right of petitioners in respect of the quarters in question and are reproduced hereinafter:- “12. That, in pursuance of aforesaid advertisement, the petitioners submitted their applications for allotment of quarter along with security deposit of Rs.10,000/- and Rs.15,000/- as required. 13. That, even after security deposits were submitted, the respondent authorities allotted the quarters in favour of petitioners and from time to time they were given hope that they will be allotted the aforesaid quarters. 14. That, the petitioners were peacefully living in the aforesaid quarters, although without any allotment and all of sudden one of the resident of the same colony namely Bhaiya Ram filed Writ-A No.18370 of 2021 before this Hon’ble Court for allotment of some different quarter in the same colony.” 10. Despite specific query made to counsel for the petitioners, no explanation has been furnished on behalf of petitioners as to how the petitioners came in possession of the quarters, particularly when there is no allotment letter on record in respect of any of the petitioners. 11. The petitioners in the writ petition have prayed that the amount demanded from them vide allotment letters be not realized from them. 12. In the absence there being any previous allotment order placed on record, the petitioners’ contentions that they were put in possession over the quarters or that they were continuing in possession of these houses for long cannot be accepted. The status of the occupants without any valid allotment would that be of trespassers. It appears that a petition was filed by one Bhaiya Ram, being Writ-A No.18370 of 2021, wherein this Court passed following orders on 12.4.2022:- “In compliance of earlier order of this Court, Sri Arun Kumar, learned counsel for the respondent Nagar Nigam has filed personal /compliance affidavit of the Municipal Commissioner annexing therewith list of allotment made in respect of various persons totaling to 113 people, which is taken on record. From the perusal of the list, which is appended as annexure 2 to the compliance/personal affidavit, it transpires that members of the same family have come to be allotted quarters and that shows that principles of rule of law have not been followed. Municipal Commissioner is directed to hold a fact finding enquiry as to how different quarters have come to be allotted in respect of the same family members . A list of 21 unauthorized occupants of Nagar Nigam residential quarters on the campus of Haiza Hospital, has been filed. Learned counsel for the respondent also states that several information in the past regarding unauthorized occupants have been served through notice, however, their eviction could not be ensured till date. In view of above, Municipal Commissioner is directed to get the notice already issued to the unauthorized occupants enforced as expeditiously as possible preferably within a period of thirty days from today. Thus, Municipal Commissioner shall also ensure that unauthorized occupants residing in 21 quarters on Haiza Hospital compound do vacate the quarters in accordance with law and if need be necessary police force be demanded from the Senior Superintendent of Police Prayagraj. The Senior Superintendent of Police is directed to make available requisite police force, if demanded. The question of consideration of fresh allotment will be considered only after unauthorized occupants vacate the premises in question upon which they are residing without there being any valid allotment made in their favour by the Nagar Nigam. The Municipal Commissioner, shall file affidavit annexing therewith enquiry report as directed hereinabove, which is to be completed within a period of thirty days and also report regarding removal of unauthorized occupants of the quarters to the Nagar Nigam by the next date fixed. List this case on 26th May, 2022.” 13. Again on 26.5.2022, following orders in the above case were passed by this Court:- “Heard learned counsel for the parties. A compliance affidavit of Sri Ravi Ranjan, Municipal Commissioner, Nagar Nigam, Prayagraj has been filed today, which is taken on record, in which it is stated that out of illegal occupancy of 21 quarters, 7 quarters have been vacated and possession thereof has been taken. A compliance affidavit of Sri Ravi Ranjan, Municipal Commissioner, Nagar Nigam, Prayagraj has been filed today, which is taken on record, in which it is stated that out of illegal occupancy of 21 quarters, 7 quarters have been vacated and possession thereof has been taken. So far as remaining 14 quarters are concerned, it is stated that people, who were illegally living therein, had put lock on it and ran away from the spot and certain people are creating unnecessary public nuisance over the place and creating hindrance in exercise of power by the administration of the Corporation, in executing its order. It is further stated that the action to take physical possession of properties of the Nagar Nigam qua 14 quarters will take place in next ten days' time. It can only be termed as unfortunate that people, who are not in authorized possession of the accommodation of the Municipal Corporation, Prayagraj, have put up locks on such quarters and the Municipal Commissioner, Nagar Nigam, Prayagraj has shown his helplessness in getting possession of these quarters by breaking the lock just for the reason that certain people including women are creating public nuisance on the spot. The lawful action has to be taken in such matter. Last opportunity is afforded to the Municipal Commissioner to comply with the order of this Court dated 12.04.2022 in its letter and spirit and file compliance affidavit by the next date fixed. List on 4th July, 2022.” 14. Another writ petition, being Writ-C No. 13389 of 2022 (Manoj Kumar and 18 others Vs. State of U.P. and two others) was also filed in respect of the same subject, which was disposed of vide order dated 17.08.2022, referring to the order passed by this Court in Bhaiya Ram (supra). Paragraph Nos. 10 to 13 of the order passed in the writ of Manoj Kumar (supra) are reproduced hereinafter:- “10. It has been submitted by learned counsel appearing for the respondent nos.2 and 3 that as of now no person is in occupation of the quarters which were got vacated in pursuance of interim order passed by this Court in Writ Petition filed by Bhaiya Ram. 11. It has been submitted by learned counsel appearing for the respondent nos.2 and 3 that as of now no person is in occupation of the quarters which were got vacated in pursuance of interim order passed by this Court in Writ Petition filed by Bhaiya Ram. 11. It has also been submitted that petitioners although claim to be the applicants for allotment under the category of displaced persons but they were unauthorizedly occupying the residential Quarters for a long time of almost 25 years and they do not come under the category of displaced persons. 12. This petition is disposed of with a direction to the respondent nos.2 and 3 to consider the claim of the petitioners as well as other similarly situated persons who had applied in pursuance of advertisement issued by the Nagar Nigam on 26.05.2009 and had deposited the requisite amount with the Nagar Nigam for fresh allotment of residential quarters in Adarsh Basti Haija Hospital Allahpur, Allahabad. 13. In case there are more applicants than the number of residential Quarters available, it shall be open for the respondent nos.2 and 3 to hold a lottery at a public place and make allotment in the presence of all the applicants and try to complete entire allotment process within a period of three months from the date a copy of this order is produced before them.” 15. Record of the writ petition further reveals that yet another Writ Petition No.16777 of 2023 (Ajeet Kumar Gupta and others Vs. State of U.P. and 2 others) was filed, which came to be disposed of on 18.5.2023, vide following orders:- “It transpires that certain quarters were constructed under the State scheme in Haija Colony Compound, Allahpur, Allahabad for allotment under the E.W.S. category in the year 1999-2000. Various persons came in occupation of these houses and an advertisement was published by Nagar Nigam, Allahabad in the year 2009 inviting applications for allotment of E.W.S. houses to eligible candidates in different categories. The petitioners claim to have applied for allotment against the 2009 advertisement but they were not allotted E.W.S. houses. Some of these persons approached this Court by filing Writ Petition No. 13389 of 2022 for an appropriate direction to the respondents to allot the flats to those who had applied against advertisement and thereby consider this claim for regularization also. The petitioners claim to have applied for allotment against the 2009 advertisement but they were not allotted E.W.S. houses. Some of these persons approached this Court by filing Writ Petition No. 13389 of 2022 for an appropriate direction to the respondents to allot the flats to those who had applied against advertisement and thereby consider this claim for regularization also. The writ petition came to be disposed of on 17.08.2022 by passing the following orders:- "12. This petition is disposed of with a direction to the respondent nos.2 and 3 to consider the claim of the petitioners as well as other similarly situated persons who had applied in pursuance of advertisement issued by the Nagar Nigam on 26.05.2009 and had deposited the requisite amount with the Nagar Nigam for fresh allotment of residential quarters in Adarsh Basti Haija Hospital Allahpur, Allahabad. 13. In case there are more applicants than the number of residential Quarters available, it shall be open for the respondent nos.2 and 3 to hold a lottery at a public place and make allotment in the presence of all the applicants and try to complete entire allotment process within a period of three months from the date a copy of this order is produced before them." It appears that the applicants were far more than the number of houses available and, therefore, some of the persons again came to this Court by filing Writ Petition No. 6338 of 2023, wherein this Court observed as under in para 4 to 7 on 12.04.2023:- "4. Having heard the learned counsel for the parties and having perused the record, the Coordinate Bench of this Court in Manoj Kumar and 18 others (supra), had disposed of the writ petition with the following observations: "12. This petition is disposed of with a direction to the respondent nos.2 and 3 to consider the claim of the petitioners as well as other similarly situated persons who had applied in pursuance of advertisement issued by the Nagar Nigam on 26.05.2009 and had deposited the requisite amount with the Nagar Nigam for fresh allotment of residential quarters in Adarsh Basti Haija Hospital Allahpur, Allahabad. 13. 13. In case there are more applicants than the number of residential Quarters available, it shall be open for the respondent nos.2 and 3 to hold a lottery at a public place and make allotment in the presence of all the applicants and try to complete entire allotment process within a period of three months from the date a copy of this order is produced before them." 5. The above order has neither been reviewed nor recalled nor it has been set aside or stayed. Further, the present petition appears to have been filed with laches, inasmuch as the petitioner was always aware of the fresh advertisement dated 03.12.2022 and the clear stipulation therein to file applications by 07.01.2023. The petitioner neither filed any such application nor approached the Court within that time. 6. At this late stage when the lottery is to be drawn tomorrow, we do not find any good ground to offer any interference as may cause further delay in the allotment proceedings. Accordingly, the petition is dismissed. 7. Needless to add, if any EWS accommodation remains to be allotted, the respondents may issue fresh advertisement, wherein all applicants including the present petitioner may have a right to participate." The present writ petition has been filed stating that eight houses were reserved for general category, against which no applications for allotment were filed and, therefore, these eight houses continue to remain vacant as on date. It is urged that there is no reservation for unreserved category and in the event there were no candidates available in the unreserved category, the houses available ought to have been made available to other applicants, if they fulfill the condition of allotment. Shri Arun Kumar for the Nagar Nigam does not dispute the legal proposition that reservation cannot be for unreserved category and in the absence of other eligible persons, it is open for the Nagar Nigam to offer the houses to remaining applicants by following a fair and transparent procedure. In the facts of the present case, we are of view that if there are houses still available, the Nagar Nigam would be justified in allotting those E.W.S. houses to remaining candidates who have applied for such flats in the year 2009. In the facts of the present case, we are of view that if there are houses still available, the Nagar Nigam would be justified in allotting those E.W.S. houses to remaining candidates who have applied for such flats in the year 2009. For such purposes, it will also be open for the Nagar Nigam to draw lottery, if the number of applicants are more than the houses available with Nagar Nigam. Claim of all eligible applicants, irrespective of the category, in which they have applied, against the advertisement of 2009, would be considered for allotment in terms of the directions issued in the previous writ petition against the unreserved category. Required action in that regard shall be taken within a period of two months from today. The writ petition stands disposed of accordingly.” 16. It is pursuant to the above orders passed by this Court that ultimately allotment letters have been issued in favour of the petitioners. The allotment letters are not under challenge, and in the absence thereof, no mandamus can be issued restraining the respondent authorities from demanding the amount mentioned in the allotment letters, for the quarters in question. 17. Allotment letters have been issued to the petitioners on 24.7.2023 specifying the cost of the house, as also payment schedule, as per which the amount is required to be paid to the petitioners. The allotment orders in favour of petitioners dated 24.7.2023 are not under challenge. Petitioners otherwise have not been able to disclose any right in them to remain in possession of the houses, except for the orders of allotment dated 24.7.2023. The allotment orders also show that petitioners have deposited some amount on 26.7.2023, without there being any challenge to the cost of the houses indicated in the allotment letters. 18. The petitioners have not challenged the allotment letters and have deposited part of the amount without any protest and have also come in possession and thereby acquiesced to it. As such, no mandamus can now be issued to the authorities not to charge the balance amount mentioned in the allotment letters. The demand of amount pursuant to the allotment order dated 24.7.2023 is a consequence of the allotment order itself and in the absence of any challenge to it the authorities cannot be restrained from implementing the allotment order, insofar as it relates to the demand under it. 19. The demand of amount pursuant to the allotment order dated 24.7.2023 is a consequence of the allotment order itself and in the absence of any challenge to it the authorities cannot be restrained from implementing the allotment order, insofar as it relates to the demand under it. 19. Since the petitioners have not deposited the full amount pursuant to allotment letters, despite having acquiesced to it, no mandamus can be issued to the respondents not to charge the amount mentioned in the allotment letters. 20. Petitioners’ contention that the amount of houses have been arbitrarily fixed cannot be entertained in the present case, particularly as we find that petitioners in the past have apparently occupied the houses unauthorizedly and under the orders of this Court in Writ-A No.18370 of 2021, they have been evicted, after noticing their status as unauthorized occupant. 21. On account of the orders passed by this Court, the petitioners claim for allotment has been considered and the allotment orders have been issued to them. Having acquiesced to such allotment orders, the petitioners are not entitled to a writ of mandamus restraining the respondents from charging the amount mentioned in the allotment letters. 22. The other prayer in the writ petition is to direct the authorities to consider the petitioners’ representation dated 19.8.2011, which is contained in Annexure-11 to the writ petition. The prayer in the representation is that allotment of quarters in favour of the petitioners be made as per the rate admissible in the year 2009. The prayer clause of the representation dated 19.8.2011 reads as under:- ^^vra% Jhekuth fuosnu gS fd ge izkFkhZx.k ds DokVZjksa dks vkacVu dh nj lu~ 2009 ds vuqlkj dh tk;s vU;Fkk dh fLFkfr esa ge izkFkhZx.k dks ekuuh; mPp U;k;ky; dk lgkjk ysuk iMsxkA^^ 23. In the absence of any right accrued in favour of the petitioners in the year 2009 and without there being any challenge to the allotment orders dated 24.7.2023, no direction can be issued to consider the petitioners’ representation for the price of the house to be fixed as per the allotment rates of 2009. 24. In that view of the matter, the order passed by this Court earlier on 20.11.2023 is modified and the writ petition is consigned to records by holding that petitioners are not entitled to any relief in the case, for the reasons narrated above. 25. 24. In that view of the matter, the order passed by this Court earlier on 20.11.2023 is modified and the writ petition is consigned to records by holding that petitioners are not entitled to any relief in the case, for the reasons narrated above. 25. The recall application and the writ petition are, accordingly, consigned to records.