Allahabad High Court
Omkar And Others vs State Of U.P. Thru Secy. And Others on 17 December, 2013
Bench: Arun Tandon, Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
A F R
Court No. - 10
Case :- WRIT - C No. - 334 of 2013
Petitioner :- Omkar And Others
Respondent :- State Of U.P. Thru Secy. And Others
Counsel for Petitioner :- Shesh Kumar,Radha Kant Ojha,Raj Kumar Singh,Sabhajeet Singh,V.S. Srivastava,Y.D.Sharma
Counsel for Respondent :- C.S.C.,Prem Prakash Tiwari,Raj Kumar Ojha
Hon'ble Arun Tandon,J.
Hon'ble Anjani Kumar Mishra,J.
Heard Sri Umesh Narayan Singh, Senior advocate assisted by Sri Raj Kumar Singh, advocate on behalf of the petitioner, Sri Raj Kumar Ojha, Senior advocate on behalf of respondent no.2 & 3 and Sri Prakash Tiwari, advocate on behalf of respondent.
Petitioner before this Court seeks quashing of the order dated 14.12.2012 and dated 17.12.2012 passed by respondents no.2 & 3 respectively.
Facts in short leading to present writ petition are as follows :
Plot no.19 village-Gopalpur Shivpuri, District-Gorakhpur is stated to be bhumidhari of fathers of the petitioners. This land measuring 1.20 acres was subject matter of the Land Acquisition Proceedings initiated by the Sate of U. P. After acquisition the same has been transferred in favour of Gorakhpur Development Authority. Petitioner no.1 and fathers of petitioners no.2 to 9 filed Original Suit No.24 of 1998 for injunction restraining the defendants to the suit namely the Development Authority from interfering with the possession of the plaintiffs over the land in question. It is their case that a temporary injunction was also granted in the said suit. After father of petitioners no.2 to 9 expired they were substituted in the suit. It is their case that the suit remained pending for more than a decade and because of the injunction order, the Development Authority could not develop the land.
The Development Authority is stated to have passed a resolution no.90.08 in its meeting held on 27.03.2010 to the effect that if the plaintiffs agree to withdraw the suit at their own cost and further agree to deposit the external development charges and to pay the current value of the property and thereafter get a talpat manchitra approved, then in that circumstance, the Development Authority may consider the allotment of the land, subject matter of the suit in favour of the plaintiffs.
On the basis of said resolution an order was issued by the Assistant Property Officer, Gorakhpur Development Authority on 20.11.2010 to the effect that if the petitioners agree to pay a sum of Rs.4, 28,87,074/- in all, 10 % of which must be deposited within one month of the letter and further submit a proof of the suit having been withdrawn, further proceedings for allotment of the land may be taken.
It is the case of the petitioners that an application for withdrawal of the suit was made on 8.04.2011 and Rs.42 lacs & odds were deposited on 10.03.2011 in terms of the letter dated 20.11.2010. It is also stated that before any orders could be passed on the withdrawal application, the suit itself was dismissed in default on 17.05.2011. An application for recall of the said order has been filed, which is pending even today. According to the petitioners, they have deposited a sum of Rs.9 lacs & odds on 7.09.2012, a sum of Rs.15 lacs & odds on 10.12.2012 and a sum of Rs.1 crore & 56 lacs on 17.12.2012. On 29.09.2012 a allotment letter was issued by the Prabhari Adhikari Sampatti, Gorakhpur Development Authority, with reference to the order of the Vice Chairman dated 28.09.2012, which also provided for the conditions of allotment. The allotment conditions mentioned that the total value of the land is Rs.4 crores, 28 lacs & odds. Petitioner has deposited registration fee of Rs.42 lacs & odds. 25 % of the total price is to be deposited by 28.12.2012 i.e. Rs.1 crore, 7 lacs & odds. A further sum of Rs.51 lacs & odds towards fee hold charges was to be deposited by 28.10.2012. A copy of the allotment letter is enclosed as Annexure 8 to the present writ petition. The other conditions shall be referred to at the appropriate stage.
It is the case of the petitioners that by means of the order dated 14.12.2012 they have been informed that final decision in the matter of allotment could have been taken in a Board meeting only and since allotment letter dated 28.09.2012 has been issued without approval of the Board, it is premature. Therefore, the money deposited by the petitioners is being returned and the matter shall be placed in the next meeting of the Board for its decision. This is the first order, which is under challenge in this petition. As a consequence to the said letter of the Vice Chairman, the Prabhari Adhikari has issued a consequential order cancelling the letter of allotment and the money deposited by the petitioner has been returned. The consequential order is also under challenge.
In order to keep the records straight, it may be recorded that in terms of the letter of the Vice Chairman dated 4.12.2012, the matter was placed in the meeting of the Board of the Development Authority held on 15.01.2013. A decision has been taken to cancel the offer, which was made earlier to the petitioners as well as the allotment letter issued by the Vice Chairman with a direction to return the money. It has also been decided to allot the plot by public auction in terms of the G. O. dated 22.02.1996.
We may record that this decision of the Board has been communicated to the petitioners by means of counter affidavit, which was served in the month of January 2013. The petitioners have not chosen to challenge the said resolution of the Board for the reasons best known to him.
On behalf of the petitioners it is contended that the order dated 14.12.2012 and the consequential order dated 17.12.2012 are illegal inasmuch as, the allotment of the land had been made in favour of the petitioners in terms of the resolution no 90.08 of the Board of Gorakhpur Development Authority. The allotment was not vitiated because of fraud or misinterpretation and, therefore, the respondents have no jurisdiction/authority to review the same. It is further stated that there is absolutely no justifiable reason to cancel the allotment, which had been made in favour of the petitioners.
Sri R. K. Ojha, Senior Advocate has submitted before this Court that the Gorakhpur Development Authority in exercise of power under Section 56 (2) (f) of the U.P. Urban Planning and Development Act has framed regulations with the approval of the State Government known as Gorakhpur Development Authority Land and Building (Registration & Allotment) Regulation 1992, which have been amended in the year 1997-98 (hereinafter referred to as Regulation). He submits that under Clause 30 of the said Regulations, a power under section 31(16) has been conferred upon the Vice Chairman to arrive at a settlement in matters where civil suits are pending, and the same could not be decided for long. It has been provided that if the parties to suit come up with a prayer for allotment of the land, then it shall be open to the Vice Chairman to allot such land in favour of the contesting parties subject to the condition that the suit proceedings are withdrawn. He submits that it is with reference to this power that the Vice Chairman had decided to settle the matter with the petitioners and to accept their offer qua allotment of land. As a matter of fact, the Board of Development Authority had passed a resolution with reference to the powers conferred under Section 31(16) referred to above on 27.03.2010. He submits that in the facts of the case there was no illegality in allotment of land in favour of the petitioners for settling the dispute pending in the suit for years. Counsel for the petitioner has also made reference to Section 18 of the Urban Planning and Development Act, which confers power upon the Development Authority to settle the land with any person in such manner and subject to such terms and conditions as it considers expedient for securing the development of the development areas according to the plan.
Sri Ojha has also referred to Section 51 of the Act, which authorizes the Development Authority to delegate its power upon such officers or local authorities in such case and subject to such conditions as it may specify.
Sri Umesh Narayan Sharma, Senior advocate on behalf of the Development Authority disputes the correctness of the contentions so raised. He submits that the final resolution of the Development Authority dated 15.01.2013 enclosed along with counter affidavit has not been challenged by the petitioners. Therefore, the relief as prayed may not be granted in this petition. On merits he submits that although under Section 31(16) of the Regulations, a power has been conferred upon the Vice Chairman to make allotment of land in favour of one of the contesting parties to a suit, which is pending since long, so that the controversy may be led to rest but, such power conferred upon the Vice Chairman has necessarily to be exercised fairly the best interest of the Development Authority. If the suit itself was not maintainable, there should not be a compromise. The plaintiff's/petitioner's suit was for a injunction restraining the defendant Development Authority from taking possession of the land even after Notification under section 4 & 6 of the Land Acquisition Act having been issued such a suit is legally not maintainable. And, therefore, compromise in the facts of the case was a farce.
He further submits that power to issue directions by the State Government to the Development Authority and its officers flows from Section 41 of the 1973 Act. The Government had issued a direction under Notification dated 22.02.1996 categorically directing that all the commercial properties within the development area and belonging to the Development Authority shall be settled by public auction only. Therefore, allotments of land within the commercial areas in favour of the petitioners in the facts of the case was violative of the directions issued by the State Government. It is in this background that under the resolution dated 15.01.2013 a decision has been taken to withdraw the offer and to cancel the allotment.
He further submits that the letter of allotment as enclosed by the petitioner is not complete. Clause D of the conditions of the allotment have not been transcribed in the typed copy of the letter enclosed with the petition.
Clause D of the allotment letter dated 29.09.2012 reads as follows:
**¼?k½ vo'ks"k 65 izfr'kr /kujkf'k :0 2]78]76]598-00 ek= dks fnukad 27-12-2012 rd Hkqxrku djuk lqfuf'pr djsaA**
He explains that from paragraph 12 of the present writ petition it is apparent that the petitioner has not deposited this sum of Rs.2,78,76,598/- till date. Therefore, breach of the conditions of the letter of allotment is writ large on record. He further explains that the orders which have been impugned in the writ petition were only interim decisions, inasmuch as, in the order dated 14.12.2012 it was specifically mentioned that the proceedings in the matter of allotment of land to the petitioners is to be placed in the next meeting of the Board for final decision. The consequential letter is only follow up of the said order of the Vice Chairman. He submits that the petitioners should have awaited the decision of the Board and now when the decision of the Board has come, petitioners have chosen not to challenge the same.
Lastly, it is contended that the entire money, which was deposited by the petitioner has been returned to him except the registration amount, which shall be returned in near future. He, therefore, submits that in the facts of the case no interference against the decision of the Board is called for.
Having heard counsel for the parties and examined the records of the present writ petition, we may at the very outset deal with the power, which has been conferred upon the Vice Chairman under Clause 31(16) of the Regulations as framed by the Gorakhpur Development Authority. The Clause reads as follows :
**izkf/kdj.k dh os Hkw[k.M tks fdUgha dkj.kksa ls fookfnr gS vkSj mudh fookn fofHUu U;k;ky;ksa esa yafcr gksus ds dkj.k dkQh le; ls vfuLrkfjr iM+s gS ds fuLrkj.k gsrq ;fn fdlh O;fDr vFkok laLFkk }kjk fooknksa dks lekIr djkdj Hkwfe vius i{k esa vkoafVr djkus gsrq izkFkZuk i= fn;k tkrk gS rks mik/;{k dks ;g vf/kdkj gksxk fd muds i{k esa Hkw[k.M dk vkoaVu dj ldrs gSa] fdUrq 'krZ gksxh fd vkosnd }kjk okn ls lacaf/kr lHkh izdj.k ds O;; Lo;a ogu djus gksaxsA**
From a simple reading of the clause it is apparent that a power has been conferred upon the Vice Chairman to negotiate the matters, which are pending in a competent court of law since long. But, this power which has been conferred upon the Vice Chairman has to be exercised in the best interest of the Development Authority and not to cause loss to the Development Authority. The minimum expected for judicious exercise of discretion under Clause 16 by the Vice Chairman is that he should have examined as to whether the suit for injunction as filed by the plaintiffs itself was maintainable or not. In case the suit itself was not maintainable, there was no occasion for any compromise being made. The plaintiffs cannot be provided land merely because they have chosen to file a suit, which is legally not maintainable. Any settlement to the contrary may only result in frivolous suits being filed and the matter being compromised by Development Authority contrary to the interest of the authority itself.
We, therefore, clarify that power under Clause 16 has necessarily to be exercised in the matters, which are legally maintainable before Court concerned and not otherwise. In the facts of the case, we have serious doubts with regards to the maintainability of the suit for injunction in the matter of possession even after notification under Section 4 & 6 of the Land Acquisition Act have been issued qua the land subject matter of the suit.
In paragraph 4 of the writ petition it has been stated that the petitioners nor their father had been paid any compensation in pursuance to the land acquisition proceedings, which fact has been specifically denied in the counter affidavit filed by the Development Authority. In paragraph 20 it has been stated that the entire amount of compensation has already been deposited and in that regard reference has been made to the profit and loss account of the Development Authority.
From the resolution of the Board dated 20.11.2010, which is sheet anchor of the entire case set up by the petitioner, we find that a decision was taken to allot 1.20 acres of the land to the petitioners subject to fulfillment of two conditions which were as follows :
(a) they agree to deposit the development charges along with the current value of the land and get the map sanctioned ; &
(b) they withdraw the suit, which is pending before the Civil Court on their own expense.
On satisfaction of the said conditions, the issue of allotment of land could be considered. With reference to the said resolution of the Development Authority, a letter was issued by the Assistant Sampatti Adhikari on 20.11.2010 requiring the petitioners to complete the two formalities as follows:
(a) to deposit a sum of Rs.42 lacs & Odds, which was 10 % of the total money payable by the petitioners for the land in question
(b) to produce a certificate in respect of the withdrawal of the suit.
Petitioners are stated to have deposited the money and, therefore, they satisfied the first condition. But, from the records we find that no certificate was produced by the petitioners in respect of the suit having been withdrawn. As a matter of fact, an application was made by the petitioners for withdrawal of the suit dated 8.04.2011. But before our orders could be passed thereon, the suit itself was dismissed in default on 17.05.2011. As per the case of the petitioners an application for restoration of the suit proceedings is still pending.
In these set of facts, we have no hesitation to record that the suit has not been withdrawn till date and, therefore, the second condition of the order dated 20.11.2010 does not stand satisfied. Mere submission of the application to withdraw the suit will not suffice in the facts of the case.
We further find that under the letter of allotment dated 29.09.2012 Clause (D), which has been reproduced herein above the petitioner was required to deposit the balance 65 % of the amount i.e. Rs.2,78,76,598.00. This money was required to be deposited in the accounts of the Development Authority maintained at Andhra Bank, Ramgarhsal, Branch Gorakhpur.
Admittedly, the petitioners have not deposited this balance amount of Rs.2,78,76,598.00 within time stipulated and even today there is no statement of fact, qua deposit of this money.
We also find substance in the contention raised on behalf of the Development Authority that in view of the G.O dated 22.02.1996 commercial plots could have been settled by public auction only. Therefore, allotment of the commercial plots in favour of the petitioners under the alleged letter of allotment dated 29.09.2012 was illegal being in breach of the directions issued by the Government. Therefore, even if it is assumed that the Vice Chairman could have exercised his power of allotment in view of resolution 31(16) of the Regulation such exercise of power cannot be contrary to the directions of the State Government issued under Section 41 of the Act.
For the reasons recorded above, we hold that allotment letter dated 29.09.2012 itself is bad in law. We find no good ground to interfere in exercise of equitable jurisdiction under Article 226 of the Constitution of India in the facts of this case.
Writ petition is dismissed.
Copy of the letter dated 29.09.2012 as produced on behalf of the respondent is kept on record.
Order Date : 17.12.2013
M. Himwan
