Rashid Umar S/O Badruddin Ahmad vs The Chairman L D A Lko.& 2 Ors.
2013 Latest Caselaw 7284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Lucknow Bench Lucknow
 

 
***********
 

 

 
[RESERVED]
 
Reserved On:- 11.11.2013                                    [ A.F.R. ]       
 
Circulated On:-26.11.2013
 
Delivered On:- 04.12.2013
 

 
Court No. - 27
 

 
Case :- MISC. BENCH No. - 11737 of 2011
 

 
Petitioner :- Rashid Umar S/O Badruddin Ahmad
 
Respondent :- The Chairman L D A Lko.& 2 Ors.
 
Counsel for Petitioner :- Ashutosh Srivastava
 
Counsel for Respondent :- C.S.C.,Anuj Kudesia,Rajesh Singh Chauhan,Shobhit Mohan Shukla
 

 

 
Hon'ble Devi Prasad Singh,J.

Hon'ble Ashok Pal Singh,J.

[Per Justice Devi Prasad Singh]

1 The petitioner, an allottee of a plot by the Lucknow Development Authority Lucknow (in short LDA), has preferred the instant writ petition being aggrieved by the decision in not entertaining petitioner's application for sanction of map for construction of house over the plot in question broadly on the ground that the place in question was earmarked as park. Brief facts with regard to controversy in question, are discussed hereinafter.

2 In pursuance of advertisement published by the LDA, the petitioner had applied for allotment of a plot. Application submitted by the petitioner in accordance with Rules, was accepted and the LDA allotted Plot No.D-4/223-A in Vishal Khand Gomti Nagar, Lucknow, in terms of layout plan. In consequence thereof, the petitioner deposited the entire cost of the plot and thereafter LDA executed a registered sale-deed of the plot in question. Physical possession was also given to the petitioner of the plot in question by the LDA on 15.2.1997. Thereafter, the petitioner constructed its boundary wall. A copy of the sale-deed executed by the LDA dated 25.6.1996, has been annexed as Annexure No.1 to the writ petition which shows that in lieu of payment of Rs.74,670.12 P., the sale-deed was executed. Along with the sale-deed, part of layout plan containing the plot in question has also been attached indicating the area to the tune of 211.65 sq. m.

3 After obtaining physical possession of the land in question, the petitioner submitted house map for sanction to the LDA on 28.5.2004. The application moved by the petitioner for sanction of house map, has been rejected on the ground that it cannot be considered since the plot allotted to the petitioner, is not the part of the layout plan. A copy of the order dated 5.6.2004 passed by the competent authority of LDA, has been filed as Annexure No.3 to the writ petition. After receipt of petitioner's representation by another letter dated 26.7.2006, contained in Annexure No.8 to the writ petition, again the petitioner was informed that the plot in question being not the part of the layout plan, the Board took a decision to cancel the allotment and matter has been referred to the vigilance inquiry. Similar communication has been made by the letter dated 21.1.2009 contained in Annexure No.9 to the writ petition, by the Secretary, LDA.

4 While filing the writ petition, the petitioner further took plea that in adjoining plot No.D-4/223-B and D-4/223-C construction has already been raised by the respective owners in pursuance of map sanctioned by the LDA and the occupants are residing there since last 8 years with all civic amenities provided by the LDA and with regard to owner of another plot No.D-4/223-H, located in the same line, the occupant has constructed house on sanctioned map and residing since last ten years. Thus, a plea has further been set up by the petitioner that in the same vicinity, the map of other allottees has been sanctioned and the occupants are residing since last more than a decade.

5 A defence has been set up by the LDA that the plot in question falls in an area marked for construction of park. Attention has been invited by the petitioner's counsel to the letter of the Lok Ayukt dated 1.6.2006 which has been filed as Annexure No.RA-1 to the rejoinder affidavit which indicates that the Plot No.D-04/223 in the same vicinity has been allotted in an area reserved for ''future planning'. The Lok Ayukt interfered on the application moved by Rita Agarwal. Thus, before the Lok Ayukt, the LDA has not set up a case that the vicinity in question, has been marked for park. Rather, defence was set up that it was marked for ''future planning'. LDA further wrote a letter that the petitioner may withdraw the amount along with interest or he may be allotted another plot in other area on current rate. Though during the course of hearing, this Court directed to provide information with regard to alternative availability of plot for settlement of matter but LDA informed that no plot is available in the Gomti Nagar Scheme. At the most, the adjustment may be done in Extension Scheme on current rate which the petitioner declined to accept. Further learned counsel for the petitioner invited attention to the publication published in the news paper dated 23.7.2011 whereby, the Lucknow Nagar Nigam, Lucknow has published a final list of parks situated in the city of Lucknow and the list does not contain the existence of any park in the present area.

6 While defending the action on behalf of LDA, the solitary argument raised by learned counsel is that the area in question where the land has been allotted, has been earmarked for park hence no allotment could have been done. Further LDA took a plea that no land could be allotted to the petitioner in Vikalp Khand and Viram Khand of Gomti Nagar, Lucknow, since the plots are not available. A vigilance inquiry has been set up which according to petitioner, was concluded in the year 2008 but the outcome of the vigilance inquiry, has been kept secret and no action has been taken thereon.

7 While filing counter affidavit, LDA has said nothing with regard to layout plan annexed with the sale-deed executed by it in favour of the petitioner. The sale-deed contains map of part of the layout plan showing the plot in question. With regard to averments contained in para 9 of the writ petition revealing construction of houses in three plots in the same vicinity, a defence has been set up that a case has been filed and the matter is pending with the prescribed authority of LDA. The counter affidavit does not contain any detail or nature of proceeding which the LDA initiated against the three allottees who have constructed the house and residing in the same vicinity since almost a decade. Nothing has been said in the counter affidavit how and in what manner the layout plan annexed with the sale-deed, suffers from illegality.

Even while filing counter affidavit, LDA had not set up a case that it has changed its layout plan, or in the original layout plan vicinity in question was earmarked as "Park". Neither original nor modified layout plan has been filed by the LDA so that inference may be drawn that the area in question is a park.

8 In spite of order passed by this Court, LDA has not brought on record the sanctioned plan of Gomti Nagar Scheme including Vishal Khand to establish that the area in question was earmarked as park. It appears that defence of park has been set up keeping in view some judgments of this Court and Hon'ble Supreme Court that for the quality of life, nature of such area should not be changed. In absence of any material on record including the sanctioned plan of Gomti Nagar Scheme, the defence of the LDA, seems to be afterthought and false. There is one more reason why the case set up by the LDA seems to be not correct. The order rejecting the petitioner's application for sanction of map, assigns the only reason that the plot in question is not the part of the layout plan. In case the plot was allotted to the petitioner over an area which was earmarked as park, then such reason should have been assigned by the LDA in the letter dated 26.7.2006 contained in Annexure No.8 and letter dated 21.1.2009 contained in Annexure N.9 to the writ petition. It appears that the LDA has been changing its stand from time to time and plea set up in the affidavit is not in consonance with the reason assigned in the orders passed by it from time to time (supra). It is settled law that reason assigned in an order, may not be supplemented by an affidavit without any other material evidence, vide Mohinder Singh Gill and another v. The Chief Election Commissioner and others, AIR 1978 SC 85. LDA seems to have not filed its affidavit with clean hands and has tried to conceal material fact.

9 The petitioner has deposited the cost of the plot in question and the physical possession thereof was given in pursuance of registered sale-deed executed in favour of the petitioner long back i.e., in the year 1996 and the LDA woke up only when an application was moved for sanction of a map that too, in the year 2004. Application of the petitioner for sanction of construction of house seems to be rejected for extraneous reasons or considerations.

10 We are living in an era where not only life but quality and dignity of life are the fundamental rights protected by Article 21 of the Constitution of India, vide Hinch Lal Tewari versus Kamala Devi:2001(6) SCC 496 and Banglore Medical Trust versus B.S. Mudappa AIR 1991 SC 1902; Milkmen Colony Vikas Samiti versus State of Rajasthan and others AIR 2007 SC 1046 and Nagar Nigam, Meerut versus Al Faheem Meat Exports Private Limited and others 2006(13) SCC 382.

11 Citizens cannot be deprived of the rightful use of their property on flimsy grounds. A quick decision is to be taken by the authorities in such matters where properties are purchased to accommodate the family. Since last almost ten years, the petitioner has been deprived of constructing the house and while defending its action, LDA has not come with clean hands. LDA seems still not sure as to whether the vicinity where the plot has been allotted, is earmarked for park or future planning and as to how the layout plan annexed with the sale-deed is not correct. In case layout plan and sale-deed executed by the LDA were not lawful and correct, then it was open for the LDA to have served a notice and take an appropriate action in accordance with law but no such action was ever taken by it. Even for adjustment, the LDA, has been insisting for payment of cost of the new plot at the current rate. Such action on the part of the LDA, is not justifiable.

12 Moreover in para 16 of the writ petition, the petitioner has given reference of three plots in the same line and vicinity where houses have already been constructed about a decade back. At the most, in view of the letter of Lok Ayukt, the area in question may be held to be the land earmarked for future planning. The land earmarked for ''future planning' does not render the allotment and execution of sale-deed thereof invalid. It may be mere irregularity and LDA cannot deprive the citizen of the use of the plot with regard to which the sale-deed has already been executed and some of the allottees have constructed houses.

13 Rejection of petitioner's application for sanction of map on one hand and permitting the other allottees to construct houses on sanctioned maps, amounts to treat equals unequally which shall be violative of Article 14 of the Constitution of India, vide M.P. Oil Extraction and another Vs. State of M.P. And others 1997 (7) SCC 592; Venkateshwara Theatre Vs. State of A.P. (1993) 3 SCC 677; Union of India Vs. Tulsiram Patel (1985) 3 SCC 398; Ashok Kumar Gupta Vs. State of U.P (1997) 5 SCC 201; State of Kerala Vs. N. M. Thomas (1976) 2 SCC 310.

14 While deciding a case, reported in Ganesh Prasad. Vs. L.D.A., and others [2011 (29) LCD 2541], and delivering judgment on behalf of the Court, one of us (Hon'ble Mr. Justice Devi Prasad Singh) had considered the different pronouncement of Hon'ble Supreme court and held that it is not permissible for LDA to use the deposits of allottees without delivering the possession of plot and not permitting the citizens to utilise their allotted land by construction of houses for their habitation which shall amount to unjust enrichment. In such a situation, the LDA may be directed to pay compensation and interest on the amount deposited by the allottees.

15 From factual matrix on record, there appears to be no room of doubt that LDA while filing counter affidavit has not approached this court with clean hands. It has not brought on record any evidence including sanctioned plan of Gomti Nagar Scheme, which may indicate that defence set up by it, that the plot allotted to the petitioner is in an area specified for park. Thus, LDA has tried to conceal material fact and has not assisted the Court in a just and fair manner which is invariably expected from the instrumentalities of the State.

16 In Zenit Mataplast Private Limited. Vs. State of Maharashtra and others (2009) 10 SCC 388, Hon'ble Supreme Court while reiterating the settled proposition of law, held that action of States and its instrumentalities must be fair, bona fide and non-discriminatory and unbiased. Its decision should be based on rule of law and known principles, and must be predictable. Similar proposition has been reiterated by the Hon'ble Supreme Court in the case reported in NOIDA Entrepreneurs Association. Vs. NOIDA and others (2011) 6 SCC 508, Relevant para 40 and 41 of the said judgment are reproduced as under:-

"40. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. [Vide: Erusian Equipment & Chemicals Ltd. v. State of WB, Ramana Dayaram Shetty v. The International Airport Authority of India, Haji T.M. Hassan Rawther v. Kerala Financial Corpn., Shrilekha Vidyarthi v. State of U.P. and M.I. Builders (P) Ltd. v. Radhey Shyam Sahu ].

41. Power vested by the State in a Public Authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. [Vide: Commr of Police v. Gordhandas Bhanji, Sirsi Municipality v. Ceceila Kom Francis Tellis, State of Punjab. v. Gurdial Singh, Collector (District Magistrate) v. Raja Ram Jaiswal, Delhi Administration v. Manohar Lal, and N.D. Jayal v. Union of India.]"

17 In view of the above, it appears that the petitioner has been deprived from the lawful use of the plot (supra) allotted to him by LDA on unfounded grounds in an extremely high handedness and arbitrary manner. The map submitted by the petitioner to construct his house, has been rejected on unfounded grounds. In consequence thereof, the petitioner has suffered since more than a decade to provide shelter to his family or to enjoy lawful property rights. It is a fit case where writ petition be allowed with exemplary costs in view of cases reported in Salem Advocate Bar Association (II), Vs. Union of India (2005) 6 Supreme Court Cases 344; Dalip Singh Vs. State of Uttar Pradesh and others 2010 (2) SCC 114, in addition to the relief which the petitioner may claim for damages from the LDA, through a competent forum or court. The relief claimed by the petitioner in the writ petition is also modified to meet the ends of justice.

18. "Food, cloth and shelter" are the basic amenities of human requirement in a civilized society. Right to life does not mean to animal living. The application moved by the citizens for allotment of flats or plots to the development authorities or the colonizers, depends upon various factors like cost subject to financial capacity, location of plot and surrounding area etc. All these factors co-relate to the quality of life as well as dignity which is fundamental right guaranteed under Article 21 of the Constitution of India vide, Kharak Singh Vs. State of U.P., AIR 1963 SC 1295; State of Maharashtra VS. Chandrabhan Tale, AIR 1983 SC 803; Bandhua Mukti Morcha Vs. U.O.I., AIR 1984 SC 802; Maneka Gandhi Vs. U.O.I. AIR 1978 SC 597; Board of Tustees of the Port of Bombay Vs. Dilip Kumar Raghavendranath Nadkarni, AIR 1983 SC 109.

Accordingly, once the cost of plot or flat is deposited, then it shall be incumbent on development authorities as well as colonizers to deliver the possession of plot or flats to the allottee within reasonable period. In case not delivered, then allottee shall be entitled to interest as well as damages, vide, Ganesh Prasad. Vs. L.D.A., and others [2011 (29) LCD 2541] (supra).

19. Ordinarily, it is not permissible for development authorities as well as colonizers to shift the place of allotted plot or flat to an another place or cancel the allotment merely on payment of interest unless they have some justifiable, compelling and lawful reasons to do so. In that case also it shall be always incumbent on the development authorities or colonizers to allot the same nature and category of flats or plots to such allottees. A justifiable compelling and lawful reason, for example may be where the development authorities' own title of the property has been revoked. In case development authorities or the colonizers continue with lawful possession of the area which has been allotted to the allottees, then in such a situation, they will not have right to cancel the allotment or shift the place of allotment to other area may be, with a provision to refund the amount deposited by the allottees for the purpose with interest.

Subject to above, in any case, for some lawful reason, the possession is not delivered and allotment cannot be materialised, then it shall be obligatory on the part of the development authorities or the colonizers to provide other plot or flat as the case may be, on the same cost which has been deposited by the allottee. The reason is that at a point of time when the citizen books the flat or plot at a location of his or her choice, the decision is taken keeping in view the financial viability as well as location. It is not necessary that after sufficient long period, the citizen will be able to purchase a plot or flat on the revised price. Hence they cannot be penalised for commission or omission on the part of the development authorities or the colonizers.

20. In the present case, from the material on record, it does not appear that the petitioner was allotted the plot at a place earmarked for park. Maximum, it may be, a land for future planning but that too, seems to be not correct since already several persons have constructed the house in the same vicinity on the sanctioned plan/map passed by the LDA. Accordingly, the petitioner seems to be entitled for not only possession of plot in question in pursuance of the sale-deed executed by the LDA but also to construct a house in pursuance of map sanctioned by the LDA.

21. In view of the above, the writ petition is allowed with costs. A writ in the nature of certiorari is issued quashing the order dated 5.6.2004 contained in Annexure No.3 followed by the order dated 26.7.2006 contained in Annexure No.8 and the order dated 21.1.2009 contained in Annexure No.9 to the writ petition with consequential benefits.

A writ in the nature of mandamus is issued commanding the respondent LDA to reconsider the petitioner's case for sanction of map in accordance with Rules keeping in view the observations made in the body of judgment expeditiously say, within one month from the date of receipt of a certified copy of this judgment and order.

The costs are quantified to Rs.1/- lakhs (one lakhs) which shall be deposited in this Court within a period of two months. In case the costs are not deposited, the same shall be recovered as arrears of land revenue by the District Magistrate, Lucknow. Out of costs so deposited, the petitioner shall be entitled to withdraw an amount of rupees fifty thousands and rest amount shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench Lucknow. Registry to take follow up action.

The writ petition is allowed accordingly.

[Justice Ashok Pal Singh]     [Justice Devi Prasad Singh]
 
Order Date :- 04.12.2013
 
Rajneesh Dy. R-PS)