Shilpi Agrawal vs State Of U.P.And Others
2013 Latest Caselaw 7508 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 
Case :- WRIT - C No. - 1947 of 2004
 

 
Petitioner :- Shilpi Agrawal
 
Respondent :- State Of U.P.And Others
 
Counsel for Petitioner :- D.K. Srivastava
 
Counsel for Respondent :- C.S.C.,A.K. Singh Yadav
 

 
Hon'ble Arun Tandon,J.

Hon'ble Anjani Kumar Mishra,J.

Petitioner before this Court seeks a writ of mandamus commanding  the respondent not to proceed with fresh auction of shop/ kiosk and to deliver possession of one shop to the petitioner as per the allotment order dated 30.10.1995.

Possession of the said shop/ kiosk has also been prayed for.

Petitioner has lastly prayed for consideration of his representations dated 12.11.1999, 23.5.2001 and 30.12.2003.  Reliefs prayed for in the writ petition are as follows:-

"A. writ, order or direction in the nature of mandamus directing the respondents not to proceed with fresh auction before giving possession to the petitioner in regard to the allotment made through order dated 30.10.1995 in regard to kiosk in Vaishali Scheme, at Section-3, Ghaziabad.

B. writ, order or direction in the nature of mandamus directing the respondents/ authorities to give the possession of the Kiosk in the scheme of Vaishali of Sector-3, Ghaziabad, pursuance to the allotment made in her favour for which the petitioner has already deposited full amount.

C. writ, order or direction in the nature of mandamus directing the respondent /authorities to take the decision on the representation of the petitioner dated 12.11.99, 23.5.2001 and 30.12.2003 as contained in Annexures 5, 6 and 8 ofs the writ petition.

D. any other suitable writ order or direction which this Hon'ble Court may deem fit under the circumstances of the case.

E. an order for costs of the petition to the petitioner."

With reference to an advertisement published by Ghaziabad Development Authority in the year 1994 petitioner is stated to have submitted an application for allotment of kiosk/ shop in Vaishali Scheme, Sector-3, Ghaziabad.

It is his case that respondent vide letters dated 5.11.1994 and 30.5.1995 informed the petitioner of reservation of one such kiosk/shop in his favour and required the petitioner to deposit a sum of Rs. 11,000/ within one month of the receipt of the letter details of other payment were to be communicated to the petitioner later.  It is then stated that on 18th March 1996 another letter was issued,  informing the petitioner to deposit the balance amount of the estimated cost of the kiosk/ shop calculated as Rs. 45,000/-.  The petitioner was asked to deposit the balance amount in three monthly installments commencing from 2nd April, 1996 to 30th May, 1997.

It is stated that thereafter nothing was done by the Development Authority. Petitioner therefore filed his representations dated 12th November, 1999 and 23rd May, 2001.  He was surprised to receive information of the settlement of the shop/ kiosk constructed at Vaishali Scheme in Sector 3 by public auction with reference to the notice enclosed as Annexure 7 to the writ petition.  The date of auction was notified as 12.1.2004. It is at this stage that the petitioner made another representation on 30.12.2003.  On no response having been received,  he has approached this Court.

It is the case of the petitioner that since a shop was reserved in his favour as is reflected from the letters dated 30.10.1995 and 18.3.1996, the respondent cannot put the shops to auction without settling one of them with the petitioner.

A counter affidavit has been filed on behalf of the respondent and it has been stated that because of the restraint placed by the Hon'ble  High Court, the advertised shop/ kiosk were not constructed and all such persons who had deposited the money, were informed vide letter dated 28.4.2001 to take back their money with interest at the rate of 5 percent.  It is stated that the document which has been brought on record by the petitioner claiming to be an allotment letter was in fact a reservation letter only and since constructions could not be raised, the question of any allotment does not arise.  In view of the same it has been contended that no relief need be granted to the petitioner.

In rejoinder, counsel for the petitioner points out that the letter referred in paragraph 6 of the counter affidavit qua intimation to withdraw the money with 5 percent interest has never been issued to the petitioner and even otherwise the noting which has been enclosed along with the counter affidavit does not support the averment which has been made in paragraph 6.  He points out that in the note-sheet it is mentioned that since there were more applicants than the number of shops constructed, it is not possible to allot shop to all of the applicants in whose favour reservation was made while in paragraph 6 it is stated that since kiosks/ shops were not constructed and therefore the allotment could not be made.

We may further record that on 19th January, 2004 an order was passed by the High Court in the present writ petition requiring the respondent to keep the one shop reserved in Sector-3 Vaishali Scheme, Ghaziabad pending disposal of the present petition.  Such Shop is still reserved and  it is stated by the Development Authority that the same can be allotted in favour of the petitioner at the current market value and not at the rate which were subject matter of advertisement in the year 1994.

An affidavit has been filed by the Vice-Chairman of the Development Authority today before this Court and it has been stated that the shop which are advertised have been constructed under a different scheme and the scheme which was subject matter of advertisement in 1994-95 was in respect of the construction of the shop at road pattries which could not be undertaken because of the restraint order of the Hon'ble High Court .

It has also been stated in paragraph 5 that the shop in Sector 3, Vaishali Scheme which has been constructed adjacent to the convenient shopping centre is presently valued at Rs. 6,74,779/- and if the petitioner so desires  it can be allotted to him at the said price.

We have heard counsel for the parties and examined the record.

At the very outset we may record that the present writ petition has been made after eight years of the alleged letter of allotment in favour of the petitioner. 

From a simple reading of the documents enclosed as Annexures 3 and 4 to the present writ petition which are claimed to be allotment order by the petitioner, we find that the same are mere letters informing about registration of the application of the petitioner for allotment of the shops.

We have no hesitation to record that there has been, in fact, no allotment of any particular shop in favour of the petitioner at any point of time and the conflict pointed out by the petitioner qua the case of the Development Authority that shop were not constructed with reference to the scheme which was notified in the year 1994-95 and that there were more applicants that the number of shops constructed as per the noting enclosed along with the counter affidavit dated 28.4.2001 is more imaginary than substantial in nature.

From the affidavit which has been filed today, it is apparent that these shops which were the subject matter of noting dated 28.4.2001 are the ones which has been constructed in the year 1998-99 and not the shops which were the subject matter of the advertisement of 1994-95.  At least there is a serious issue in that regard and such issues of fact cannot be examined under the writ jurisdiction.

We are of the opinion that the Development Authority is more than fair in offering shop which is available at Vaishali Scheme, Sector 3 at the market price to the petitioner in the facts of the case.

We therefore dispose of the present writ petition by providing that if the petitioner desires to have the said shop allotted in his favour, liberty is granted to the petitioner to make an application in that regard offering the price fixed by the Development Authority and on such application being made the request of the petitioner shall be processed and appropriate order shall be passed within four weeks from the date of production of a certified copy of this order.

We provide that in case the petitioner seeks withdrawal of the money /adjustment of the same against the price of the shop offered,  his request shall be considered and  in both cases the petitioner shall be entitled to interest at the rate of 12 percent from the date the deposit was made till the date the amount is adjusted / returned as the case may be.

Order Date :- 18.12.2013

Priyanka