Progressive Co-Operative ... vs State Of U.P.Through Prin. Secy. ...
2013 Latest Caselaw 3273 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								              										Reserved
 
 
 
		             Writ Petition No.6951(M/B) of 2010 
 

 
	Progressive Co-Operative Housing Society Ltd.   .....  Petitioner.
 
					Versus
 
	State of U.P. and others		.........		Opposite Parties.
 

 
					***
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Anurag Kumar, J.

(Per Uma Nath Singh, J)

This writ petition has been filed with prayers : (i) for issuance a writ, direction or order in the nature of certiorari for the quashment of the order in furtherance of which the scheme titled "Greenwood Apartments" in respect of Sector I, Gomti Nagar Extension Yojana, Lucknow [especially in respect of plot no. 1/27 situated in Vardhan Khand-Sector I, Gomti Nagar Extension Yojna, Lucknow] has been sought to be implemented after summoning the original records with direction to the respondents to restrain from making any allotment in respect of the land allotted to the petitioner by means of agreement dated 11.7.2005 and not to make and cause any interference in the peaceful possession of the property in question, and again also for the quashment of the order of the Executive Engineer (Acquisitions) (Respondent no.5) dated 22.3.2007 (vide annexure no. 9) which imposes restrictions on the registration of sale deeds executed by the petitioner in respect of the property in question; (ii) for issuance of a writ, direction or order in the nature of mandamus: (a) directing the respondents to handover the possession of all the plots of land which have been allotted to the petitioner society as per the supplementary agreement dated 11.7.2005; (b) commanding the respondents to execute sale deed with the members of the petitioner society notwithstanding the order dated 22.3.2007; (c) directing the LDA to refund the entire amount of Rs. 3,64,288 alongwith interest thereon which has illegally been charged by the LDA from the petitioner with a penal interest for not making timely payment of Development charge; (d) commanding the LDA to pay to the petitioner an interest @ 16% on a sum of Rs. 43,27,259=95 from 11.7.2007 till the actual payment is made, and (e) for grant any other relief(s) that this Court may deem fit and proper in the interest of justice.

The brief facts giving rise to the filing of this petition are that the petitioner is a Co-operative Housing Society Ltd. incorporated and registered under the provisions of U.P. Co-operative Societies Act, 1965. The objective of the Society is to acquire, develope, plot and sell land for the benefits of its members and the society has been in continuous functioning since very inception, say, from the date of registration. It has also undertaken large development projects in the past. In furtherance of its objectives the petitioner society purchased lands including the land situated at villages Bijaipur and Kamta in Tehsil and District-Lucknow, ad-measuring 45 Bighas 6 Biswas 6 Biswansi and 6 Kachwansis. Subsequent to the purchase of that land by the petitioners, the Lucknow Development Authority (hereinafter to be referred to and called 'the LDA') decided to utilize the said land as part of its Gomti Nagar Scheme. Thus, the State Government issued a notification under the Land Acquisition Act, 1894, for acquiring 40 Bighas 6 Biswas 3 Biswansis out of the land belonging to the petitioner. The acquisition proceedings were challenged by the petitioner by means of a Writ Petition No. 2039 (MB) of 1986 before this Court.

Having found merit in the submissions of the petitioner, the Court passed the order of restraint against the respondent-authorities from taking over the possession of the petitioner's land which was sought to be acquired. The order dated 3.4.1986 restraining the respondents from taking over the possession of petitioner's property in question was alleged to have been violated by them and thus the petitioner had to file a contempt petition being Criminal Misc. Case No. 910 (C) of 1986 against the officials alleged to be in contempt. This Court took a serious view of the matter and the then VC of the LDA was directed to appear in person and answer the charges of contempt alleged against him. After the passing of the said summoning order by the Court, the respondents offered a compromise to the petitioner wherein the petitioner was offered an alternate site in exchange and lieu of its lands under proposed acquisition. The total land that was offered to the petitioner as a part of the compromise was only 60% of the entire land belonging to the petitioner Society, namely 1,01,986 Sq. Mts. The petitioner was offered only 61181.47 Sq. Mts. against 1,01,986 Sq. Mts and that too at a disadvantageous location. Further, the petitioner was also required to pay the development charges to the LDA in respect of the said alternate land proposed to be offered to the petitioner.

Thus, the petitioner alleges to have suffered heavy financial losses, even though he agreed to accept the compromise offered by the respondents, and settled the matter. This Court thus disposed of the Writ Petition No. 2039 (MB) of 1986 in view of the compromise entered into between the parties. Thereafter, there was a legitimate expectation that the petitioner would be put in actual possession of the plots of land offered by the LDA as part of the compromise. However, the LDA handed over the possession of only 46648.55 Sq. Mts. of land against area provided under the settlement namely 61181.47 Sq. Mts. Thus the petitioner was not handed over the possession of the remaining land of 14532.91 Sq. Mts. It has also been submitted that the petitioner had always discharged its obligations and had also paid the entire development charges as and when it became due and payable. Since the petitioner was not given possession of the remaining land namely 14532.91 Sq. Mts. for which it was entitled, it submitted a representation before the respondent authorities and requested the LDA to immediately handover the possession of the remaining 14532.91 Sq. Mts. of land to the petitioner.

After several representations and personal visits by the Secretary of the petitioner society to the respondent authorities, Vice Chairman LDA finally passed a speaking order dated 15.3.2005 with inordinate delay accepting the omission of the respondent authorities and also agreed that the petitioner Society was entitled to be handed over the physical possession of 14532.27 Sq. mts. of land which it had been demanding since long. The order dated 15.3.2005 also noticed the fact that the petitioner had already paid Rs. 2,83,32,417=91 towards the development charges, and therefore, it was not liable to pay any interest. In fact the respondents themselves had defaulted in handing over the possession of the land to the petitioner which the petitioner was entitled to. Further, vide the said order it was also noticed that the action of the respondents was contemptuous and in order to avoid any contempt of court proceedings, it was necessary to resolve the matter immediately. In spite of order dated 15.3.2005 passed by the Vice Chairman LDA, admitting the default made by the respondent authorities, the LDA failed to hand over possession of the remainder of the land measuring 14532.27 Sq. Mts. to the petitioner. Thereafter, the LDA expressed its inability to hand over the possession of the balance land as according to them the said land had already been utilized for some other purpose. However, the LDA offered yet another alternate site to the petitioner for which a demand of another Rs. 87,97,836=25 was made by the LDA. The alternate site so offered was situated at an even more disadvantageous location than the original alternative offered earlier. Even though the terms and conditions of the offer were prejudicial to the interest of the petitioner society as it entailed surrendering extremely valuable land by the petitioner in exchange for relatively low cost land, but since about 20 years had lapsed by then and the petitioner was still running from pillar to post to get its due, the petitioner agreed to accept the said offer of the LDA primarily for the reason that it would be given immediate possession of the remainder of the land.

Accordingly a supplementary agreement dated 11.7.2005 was executed handing over paper possession of 14532.27 square meters of developed land/plots. A perusal of the agreement dated 11.7.2005 would indicate that the plots of land allotted to the petitioner have clearly and specifically been mentioned and includes plot No. 1/27 Vardaan Khand in Gomti Nagar Extension Yojna, Sector-1. Thereafter, again in spite of handing over the possession of 14532.27 Sq. Mts. of land, the respondents refused to execute the registry of 7,147.77 Sq. Mts. of land out of 14532.27 Sq. Mts. of land, allotted to the petitioner, including the plot no. 1/27, Vardhan Khand-Sector-1, Gomti Nagar Extension Yojna, Lucknow. The registry in respect of the said plots is still not being made by the respondents, in spite of the petitioner having made several requests to the respondent authorities. When the requests of the petitioner did not yield any result, the petitioner informed the respondent authorities that if the balance land i.e. 7147.77 Sq. Mts. as per the agreement dated 11.7.2005 is not registered in favour of its members, it would be constrained to take recourse to legal proceedings against them. It is also a submission that between the years 2005 and 2007, there was an astronomical increase in the prices of the plots whose possession was handed over to the petitioner by means of the agreement dated 11.7.2005, and now it transpires that the LDA, with a view to deprive the petitioner of the said plots of land devised a plan to divert the attention of the petitioner from claiming the same and once again started creating a situation where the petitioner would be forced to part with its land in lieu of a lesser valuable property. It is also an averment that towards prosecution of its design, the respondent in a most perverse and arbitrary manner, by the order of its Executive Engineer (Acquisition) dated 22.3.2007 directed the Under Secretary (N) to stay the registration of the sale deeds of even those plots of the petitioner society of which, the possession had already been handed over to the petitioner.

A perusal of the order dated 22.3.2007 itself would indicate that the said order had been issued on the basis of a false and frivolous ground that the petitioner had not furnished to the L.D.A. the details of the development charge deposited by the petitioner with the LDA. In fact the petitioner claims to have forwarded the payment details regularly. One such letter is dated 8.2.2007. It has been alleged that the said order was only meant to harass the petitioner and nothing else as the development charges were deposited by the petitioner with the LDA itself, and therefore, there was no necessity for demanding the details of the said deposits from the petitioner by the L.D.A. It is also a submission that the case of the LDA was not that the development charges had not been deposited by the petitioner, but the allegation was only to the extent that the details of the said deposits had not been furnished. The petitioner lodged its protest against the order dated 22.3.2007 vide its letter dated 30.3.2007 alongwith the request that the order dated 22.3.2007 imposing a restriction on the registration of the sale deeds in respect of the plots of the petitioner society be removed. As a matter of abundant precaution, the petitioner also furnished to the LDA the details of the development charges deposited by it. The restriction imposed on the registration of the sale deed by the order dated 22.3.2007 has still not been removed even though full payment of development charges due have been deposited before time and yet the petitioner has still not been handed over the possession of the plots of land to which it is entitled as per the agreement dated 11.7.2005. It has also been contended that since then the respondent authority on some pretext or the other has engaged the petitioner in correspondence without actually lifting the restriction over the registration of the sale deeds and without handing over the actual possession of the remainder of the land as detailed in agreement dated 11.7.2005 including plot no. 1/27 Vardaan Khand, Sector-1, Gomti Nagar Extension.

The petitioner vide letter dated 29.1.2009 took up its stand that since the LDA has neither done the development work nor handed over the land/plots it should pay interests to the petitioner as per the agreement.

It is also an assertion of the petitioner that instead of acting upon the letter dated 29.1.2009 as required by them, thereby handing over the actual possession of the remaining land, the respondents served a notice dated 4.6.2009 upon the petitioner requiring it to pay a penal interest of Rs.3,64,338=00 being interest on late payment of development charge.

It is also pleaded that the Vice Chairman of the LDA in its order dated 15.3.2005 had clearly indicated that the petitioner was not required to pay any interest on the development charge as it was the LDA which had defaulted in completing the development work and in handing over the possession of the plots of land.

It is also the case of the petitioner that as on 15.2.2010, it was the LDA which owed interest to the petitioner on account of the delay in handing over the possession over the plots in question. This fact was brought to the notice of the LDA by the petitioner vide its letters dated 24.8.2009 and 15.2.2010.

Even though the demand of penal interest was completely illegal and unjustified, the petitioner fearing that joining issues on the said matter would only delay the redressal of its grievance, deposited the said amount under protest on 8.6.2009 and a letter dated 9.6.2009 was sent to the respondent authorities along with a copy of the challan informing it about the deposit so made.

The LDA kept the petitioner engaged in correspondence and discussions giving the impression that they intend to resolve the issue. However, it was later discovered that the respondents had in fact no intention of actually doing so and they were only buying time for themselves to alienate the plots in question. In this background the petitioner-society filed this writ petition seeking reliefs as prayed against the respondents on 22.7.2010.

When the matter was listed on 29.7.2010, the Court, inter alia, passed the following order:

"Shri D.K. Upadhyay, learned Chief Standing Counsel, very fairly submitted that the averments made in this writ petition, prima-facie, appear to be correct. He has also received instructions from the respondents that they are committed to honour the terms of the agreement. However, he prays for and is granted a week's time to seek further instruction to place a viable proposal in respect of the settlement. Thus we direct that till then, the respondent shall not alienate the land being plot no.1/27 situated in Vardhan Khan-Sector 1, Gomti Nagar Extension Yojna, Lucknow in favour of a third party.

List the matter on 16th August, 2010."

Thereafter, this Court passed further order on 18.8.2010:

"Shri D.K. Upadhyay, learned counsel appearing for Lucknow Development Authority, submitted that the LDA has not taken any steps after passing of interim order dated 29.07.2010 to change the nature of land and he even agrees that this Court may pass the order of status quo. So we direct the parties to maintain status quo as it exists today in respect of the land in question. However, as Shri Upadhyay pleaded, we grant liberty to the LDA to file an affidavit setting out the details with specific plots proposed to be offered in lieu of the plot of petitioner said to be required for the purposes of raising a multi-storied building of a group housing society.

List on 06.09.2010."

The order dated 24.11.2010, being relevant, is also reproduced

as:

"We passed the following order on 29.07.2010:

"Shri D.K. Upadhyay, learned Chief Standing Counsel, very fairly submitted that the averments made in this writ petition, prima-facie,appear to be correct. He has also received instructions from the respondents that they are committed to honour the terms of the agreement. However, he prays for and is granted a week's time to seek further instruction to place a viable proposal in respect of the settlement. Thus we direct that till then, the respondent shall not alienate the land being plot no.1/27 situated in Vardhan Khan-Sector 1, Gomti Nagar Extension Yojna, Lucknow in favour of a third party.

List the matter on 16th August, 2010."

Thereafter also, the LDA was granted time vide order dated 29.10.2010, as under:

'Shri D.K. Upadhyay, learned counsel for LDA, on instructions states that though the details as sought for about the payment made by the petitioner society have already been submitted but some time is required for verification of the same. It is also stated that if the said amount is found to have been paid, the LDA will execute the sale-deed.

Thus, we grant a week's time to learned counsel for LDA to seek instructions.

List on 09.11.2010.

Interim order, if any, shall continue till the next date of listing.'

.

However, there is no instruction given to learned counsel for LDA and thus it is directed that the Vice Chairman of Lucknow Development Authority shall remain present in Court with the records of this case on the next date of hearing i.e. 06.12.2010.

List on 06.12.2010.

Interim order, if any, to continue till the next date of listing."

On 6.12.2010, the Court granted time to the LDA to file counter affidavit as:

"Pursuant to our order dated 24.11.2010, Vice Chairman of Lucknow Development Authority Sri Mritunjay Kumar Narain is

present in Court.

Learned counsel for L.D.A. states that a counter affidavit containing some offers as also the details of calculation of outstanding dues, and the payment schedule is ready for filing but as the Bar has suspended the work for today, the matter cannot proceed further.

Learned counsel for L.D.A. thus may file the counter affidavit in Registry during the course of day.

List the matter after a week. Personal appearance of Vice Chairman of Lucknow Development Authority is dispensed with until further orders.

Interim order, if any, shall continue till the next date of listing."

The Court has recorded the following order on 25.01.2011:

"Mr. D.K.Upadhyaya, learned Chief Standing Counsel, states that in the rejoinder to counter affidavit, a new case has been set up. Therefore, the LDA wants to file reply limited to that part of the rejoinder affidavit.

List the matter after one week.

Interim order to continue till the next date of hearing."

Thereafter vide the order dated 7.3.2011 the Court directed the Account General, U.P. to depute some Accounts Officer/Auditors competent to find out the exact amount, if any, required to be paid by the petitioner-society as under :

"As there is a controversy over the exact amount required to be paid and the amount actually paid in the Bank, we direct the Accountant General, U.P., to depute some Accounts Officers and Auditors competent to do the job. They shall also remain present in Court on 28.03.2011.

Let a copy of this order be served upon the Accountant General, U.P., for compliance.

List on 28.03.2011."

	It appears from the order dated 16.5.2011, as given below,    that the report was submitted in Court on behalf of Accountant General, U.P.:
 
"Report on behalf of Accountant General, U.P., filed in Court, is taken on record and copies thereof are served upon learned counsel for peititioner and respondents-State. 
 
List the matter on 11.07.2011. 
 
Interim order to continue till then. 
 
Further appearance of Officers of Accountant General's office is dispensed with." 
 

 
	As the parties were agreeable to resolve the dispute out of Court on the basis of report submitted by Auditors of Accountant General, on 28.7.2011, this Court granted further two weeks' time to do so.  The order dated 28.7.2011 is as under:
 
"As learned counsel for parties agree that the parties may make endeavour to resolve the dispute out of Court on the basis of report submitted by Auditors of the Accountant General Office independently, the parties are granted 2 weeks time to do so. List the matter thereafter. 
 
Interim order to continue till then.' 
 

 
	It also appears from the order dated 10.10.2011 that the mater was referred to Mediation Centre for settlement and reconciliation but that also failed. The order dated 10.10.2011 is as under:
 
"We have heard learned counsel for parties and perused the pleadings of writ petition. 
 
On 28.7.2011, we passed the following orders:- 
 
'As learned counsel for parties agree that the parties may make endeavour to resolve the dispute out of Court on the basis of report submitted by Auditors of the Accountant General Office independently, the parties are granted 2 weeks time to do so. List the matter thereafter. 
 
Interim order to continue till then.' 
 
Learned counsel still pray for further time to negotiate the matter through Mediation and Conciliation Centre, High Court, Lucknow Bench , Lucknow.
 
They may do so subject to deposit of Rs.20,000/-(rupees twenty thousand only) each within a week. 
 
List the matter with report of the Centre." 
 

Thereafter, vide the order dated 3.12.2012, a direction was given to trace out the report of Accountant General submitted in Court as recorded in the earlier order.  It appears that the original report could not be traced out by the office and its copy issued to the petitioner and other parties has been made available for facilitating the disposal of the case.  Then on 9.1.2013, this Court passed the following order:

"Looking to the chequered background of this case and the allegation of harassment caused by the Lucknow Development Authority to the petitioner, we are constrained to summon the Principal Secretary (Housing), Chairman, Lucknow Development Authority and Vice Chairman, Lucknow Development Authority with records for assistance. Thus they shall remain present in Court on 15.01.2013.

List the matter on 15.01.2013.

Interim order, if any, to continue till then."

The officers as directed appeared before this Court on 15.1.2013 when the following order was passed :

"Pursuant to our last order dated 9.1.2013, Principal Secretary (Housing) and Vice Chairman, Lucknow Development Authority, Shri Rajiv Agarwal, are present in Court. They state that the petitioner Society has already been provided 54329 square meters land but instead of utilizing the land for residential purpose, they have entered into some agreements for commercial use of the land. Thus, Mr. Dhruv Mathur, learned counsel for petitioner prays for and is granted time till Monday to seek instructions.

List the matter on 21.1.2013.

Personal appearance of Principal Secretary (Housing) is dispensed with until further orders. However, Shri Rajiv Agarwal, Vice Chairman, Lucknow Development Authority, who is in the helm of affairs, shall remain present in Court on 21.1.2013. The Lucknow Development Authority shall also produce the sale deeds and other documents to show that some part of the land allotted to the petitioner Society is being used for commercial purpose."

In the counter affidavit dated 6th December, 2010 submitted on behalf of the LDA and its Officers (respondent nos. 3 to 5), it is pleaded that the writ petition would not be maintainable on the ground of availability of invoking arbitration clause as per the condition VIII (15) of the agreement dated 23.2.1995. It is admitted that the parties are legally bound to follow the terms and conditions of the agreement. It is also admitted that the LDA is under obligation to provide land to petitioner-society as agreed to in the bipartite settlement. However, at the same time it is also suggested that the petitioner-society is under obligation to bear the consequences of non payment of instalments of development charges in terms of time frame given in the schedule as contained in the agreement. It is also admitted that plot no.1/27 Vardan Khand, Gomti Nagar Extension Scheme ad-measuring 6000 square meters is a part of settlement agreement between the petitioner-society and the LDA. However, at present, the area of aforesaid plot no.1/27 is only 4530 square meters having the length and width of 75.50 meters and 60 meters respectively. It is also submitted that plot no.1/27 was included for construction of group housing scheme namely Greenwood Apartments but now the same has been taken out from the said scheme and the LDA has decided to settle the said plot ad-measuring 4530 square meters in favour of the petitioner-society. So far as the residual area out of total 6000 square meters area is concerned, the LDA is exploring the alternative sites so that the residual area of 1,470 square meters can be given to the petitioner-society. It has also been stated that as soon as a plot of the said area is located, the same shall be settled in favour of the petitioner-society.

It is admitted that vide the agreement entered into between the petitioner and the LDA on 15.7.1994, the land ad-measuring 35653.104 square meters was sought to be settled in favour of petitioner upon the terms and conditions mentioned in the agreement. However, the said agreement was superseded by another agreement dated 23.2.1995 by means of which an area ad-measuring 61181.47 square meters was sought to be settled in favour of the petitioner-society upon the terms and conditions mentioned in the agreement. That apart, as part of agreement dated 23.2.1995, the petitioner-society was to pay Rs.3,51,98,162.76 to the LDA as development charges in the manner as prescribed in Note-3 of the agreement. The Note stipulates that the first instalment towards the development charges was due within 3 months from the date of filing of the compromise before this Court in Writ Petition No.2093 (MB) of 1986. The agreement/compromise dated 23.2.1995 was filed before this Court on 11.1.1996 and the said writ petition was disposed of on 19.3.1996 in view of the agreement. In terms of the agreement the last date to deposit the first instalment was 10.4.1996, and accordingly, further instalments were due on 10.7.1996, 10.10.1996, 10.1.1997, 10.4.1997, 10.7.1997, 10.10.1997, 10.1.1998, 10.4.1998,10.7.1998, 10.10.1998 and 10.1.1999.

Further, as per clause VIII (11) and VIII (14) of the agreement, the LDA was to carry out the internal and external development works of the plots under agreement. It was to complete the development works within a period of three years from the date of deposit of payment of 1st instalment by the petitioner-society. Consequences of the said failure have been mentioned in Clause VIII (11) of the agreement, according to which, in case of failure to complete the development works within the period of 3 years, the petitioner-society was entitled, to carry out and complete the same and the LDA, in the said eventuality, was liable to reimburse the amount already deposited by the petitioner as expenses for development with interest at the rate of 16% per annum without any objection, in case a demand was raised by the petitioner-society.

It is also stated that on account of agitation and opposition of the farmers, the development work could not be carried out by the LDA and at the same time the petitioner-society never desired to carry out the development works on its own.

In case of default in payment of the instalments on due dates interest at the rate of 16% per annum was liable to be paid on the defaulted amount from the date of default of payment till the date of actual payment. It further provides that payment so made was to be of the entire amount of the particular instalment and not for its parts at different times and each payment shall be accompanied with the statement explaining the payment in detail.

However, it is also asserted that the LDA was not able to carry out the external and internal development works for the reasons beyond its control and the petitioner-society also never expressed any desire to carry out the said works on its own. The petitioner failed to deposit the instalments as per schedule and thus as per the said clause, the petitioner-society has made itself liable to pay interest on the defaulted amount as per the said agreement which on the date of filing of the counter affidavit namely 6.12.2010 was calculated as under:

(a)	Total payable amount between              - Rs.2,82,41,425=68
 
          10.4.1996 to 10.1.1999 as per
 
          schedule of agreement dated 23.2.1995.
 

 
(b)     Amount deposited by the petitioner-        - Rs. 2,83,32,417=99
 
         society.
 

 
(c)Total amount of interest payable             - Rs. 11,75,58,562=74
 
           by the petitioner as per clause VIII(14)
 
           of the agreement dated 23.2.1995.
 

 
(d)Balance amount now payable as            : (a) + (b) + (c)
 
           on 31.12.2010.                                       -  Rs.11,74,67,570=43
 

 

Nonetheless it is admitted that while issuing the order dated 15.3.2005, Clause VIII (14) of the agreement dated 23.2.1995 was overlooked. It is also admitted that the issue relating to payment of interest as per schedule given in the agreement dated 23.2.1995 was lost sight of as it mainly referred to the payment of principal amount and, therefore, the plea of petitioner does not find support from the order dated 15.3.2005. It is also admitted that since the LDA could not settle the entire area agreed between the two parties as an area ad-measuring 14532.27 square meters could not be made available to the petitioner-society, it is in these circumstances that a supplementary agreement was entered into between the parties on 11.7.2005. It has also been stated that the principal amount deposited by the petitioner-society i.e. Rs. 28441424.08 was deducted from the original liability of Rs. 3,51,98,162.76 and an original amount of Rs. 8795836.25 was due. It is stated that the calculations made in the supplementary agreement dated 11.7.2005 and the provisions made therein supplement the original agreement dated 23.2.1995 and the terms and conditions of the supplementary agreement do not in any manner supersede, annul or modify the conditions mentioned in the agreement dated 23.2.1995. However, it is stated that the residual original amount of Rs. 8795836.25 was also not deposited by the petitioner within time and for this reason the petitioner had also paid penal interest on the said amount as per the condition No. VIII (14) of the agreement dated 23.2.1995. It is also stated that the interest towards the principal amount of Rs. 28241425.68 has yet not been paid by the petitioner. The respondents reiterate the calculation of payment already done vide the preceding paragraph number 16 of the instant counter affidavit. Thus, there is categorical admission by the LDA that it is under a legal obligation to provide land to the extent of short fall to the petitioner for which necessary exercise for locating and earmarking the plot is being undertaken. Nevertheless, it is asserted that the petitioner-society is also under obligation to comply with the terms and conditions of the agreement, as stated above.

In the rejoinder affidavit dated 6.1.2011 filed by the petitioner, it is submitted that the LDA has tried to mis-lead the Court by diverting the main issue and highlighting the issue of non-payment of development charges and interest by the petitioner-society. It has been asserted by the learned counsel for the petitioner-society that the respondents are thus responsible for not carrying out the development activities in time, which has not been completed even till date. In spite of the fact that the petitioner-society had made all the due payments to the respondents, the possession of land allocated has not yet been made over to the petitioner. Furthermore, sale deed in respect of the same plot has not been executed in view of the impugned order dated 22.3.2007 passed by the Executive Engineer (Acquisition). The respondents have already stated that they are committed to honour the terms of the agreement, but they are resiling from their statement and are trying to justify their inaction and omission to comply there with by mentioning irrelevant facts. The averments made in the counter affidavit are contrary to the stand taken earlier which has been noticed and recorded in the order dated 29.7.2010. Besides, despite admission with respect to the amount paid by the petitioner, the LDA has not executed sale deed. This fact has also been noticed in the Court's order dated 24.11.2010. Rather, the LDA entered into compromise by way of an agreement dated 223.2.1995. Accordingly, Writ Petition No. 2039 (LA) 1986 (Progressive Co-operative Housing Society Ltd. vs. State of U.P. and others) was decided vide judgment and order dated 19.3.1996. Consequent to the settlement agreement dated 23.2.1995, the LDA was bound to provide 61,181.47 square meters. However, despite clear terms of agreement, the LDA could provide 46,649.20 square meters land and 14532.27 square meters land still remained be provided to the petitioner-society. This dispute was also raised before the Vice Chairman, LDA in the representation of petitioner-society dated 20.12.2004. The Vice Chairman, LDA examined the entire matter to resolve the dispute between the parties and called for the records and reports from various authorities as to why the petitioner-society could not be provided balance area of 14,532.27 square meters land and passed a detailed, speaking and reasoned order dated 15.3.2005 whereby it was recorded that despite the agreement dated 23.2.1995, the petitioner-society for no fault on its part, was not handed over the possession of the remaining area of 14,532.27 square meters, and the plots allotted in favour of the petitioner-society were wrongly handed over and sold to some other persons.It was also recorded by the Vice Chairman, LDA, that whatever area/plots which was provided to the petitioner-society, it has paid the entire amount towards the development charges amounting to Rs. 2,83,32,417.91 and after noticing all the facts, the Vice Chairman, LDA recorded that the Authority is bound to provide an area of 14,532.27 square meters of land. Thus, it is only after the order of the Vice Chairman, LDA, that the petitioner-society was persuaded to enter into a supplementary agreement for the allotment of alternative plots as already allotted in pursuance to the agreement dated 23.2.1995, which were again wrongly sold to some other persons due to fault on the part of the LDA.

It is also stated that pursuant to the order passed by the Vice Chairman, LDA, dated 15.3.2005, the parties entered into supplementary agreement dated 11.7.2005. It is emphasized that the order passed by the Vice Chairman, LDA dated 15.3.2005 forms the part and parcel of the supplementary agreement. Vide the terms of the supplementary agreement dated 11.7.2005, only an amount of Rs. 87,97,836.25 was liable to be paid by the petitioner-society in eight instalments over two years, and apart from that amount, there was no amount or interest which was payable at the end of the petitioner.

Thus, in utter disregard to the order dated 15.3.2005 passed by the Vice Chairman, LDA dated 15.3.2005 and the supplementary agreement dated 11.7.2005, the respondent authorities are trying to raise fresh issues with regard to the interest on development charges, which have been conclusively considered and decided by the Vice Chairman, whereby it has been recorded that whatever amount is due towards the land allotted in favour of the petitioner-society amounting to Rs. 2,83,32,417.91 has already been paid to the Authority and nothing further remains to be paid on its part. Admittedly, the allotted plot comprising of 14,532.27 square meters was wrongly sold by the LDA to some other persons in violation of the agreement dated 23.2.1995. Hence, the petitioner-society was not liable to pay any interest on development charges and the same would be evident from the supplementary agreement date 11.7.2005 which has been entered into between the parties in furtherance of the order dated 15.3.2005, whereby 25 new plots of various sizes in different Schemes were allotted to petitioner-society. Thus, in terms of earlier agreement, the petitioner-society was required to pay development charges in respect to the above mentioned 25 new plots, which were allotted by way of supplementary agreement.

According to supplementary agreement dated 11.7.2005, the petitioner-society was required to pay Rs. 87,97,836.25 within two years in eight instalments of Rs. 10,99,729.53. The amount was admittedly deposited with the LDA towards development charges by 30.4.2007, which has been verified by the Chief Accounts Officer, LDA on 11.5.2007 although the said amount was liable to be paid off in eight quarterly instalments up to 10.7.20067. The payment has also been admitted by the LDA before the Court. Thus, it is manifestly clear that the petitioner-society deposited the entire development charges much before the expiry of the stipulated period to make said deposits. Despite the aforesaid fact, the Executive Engineer (Acquisition) in absolutely illegal, arbitrary and malafide manner passed an order dated 22.3.2007 that the sale deed in respect of plots allotted in favour of the petitioner-society by way of supplementary agreement would not be executed on flimsy grounds that the petitioner-society has not furnished the necessary details with respect to deposit of development charges without verifying it from their own records. It is also submitted that till date, after passing of order dated 22.3.2007 denying execution of sale deed by the Executive Engineer (Acquisition), the plots comprising only an area of 7384.50 square meters was delivered to the petitioner-society in respect of which sale deeds were executed by the LDA. In respect to the order dated 22.3.2007, the petitioner-society again made a detailed representation with further details in respect of payments made towards development charges which reveal that the petitioner-society deposited Rs.87,97,836.30 by 30.4.2007 even before the due date, namely, 10.7.2007. Thus, the petitioner-society is entitled for interest at the rate 16% on the development amount already deposited with the LDA. It is submitted by the petitioner-society that up to third instalment, the amount was paid in advance and against the fourth instalment, the petitioner-society was required to pay the amount of Rs. 43,98,918.12 and there was a delay in payment in respect of fourth instalment as necessary development was not carried out and executed by the LDA, and hence, the petitioner-society had refused to pay the development charges. However, the petitioner-society persuaded its members with great difficulty and the entire amount towards development charges was paid much within time. It is also a submission in rejoinder affidavit that the development charges for 7,147.77 square meters, as per the agreement, comes to Rs. 43,27,259.95, which has already been deposited. Thus, the LDA is bound to deliver the said area and refund the amount of interest on account of delay on their part in carrying out the development work within the requisite period of time. Admittedly, only an area of 7,384.50 square meters of 18 plots has been delivered to the petitioner-society and the LDA, without any justification, has arbitrarily not delivered 7 plots comprising an area of 7147.77 square meters contrary to the terms of the agreement. Moreover, the LDA in absolutely arbitrary and illegal manner, has changed the lay out plan whereby the area in respect of plots allotted in favour of the petitioner-society has been reduced. Thus, the claim of LDA towards the liability of interest on the part of petitioner-society is absolutely false and frivolous and also not sustainable in law. The LDA has deliberately suppressed non-performance on its part.

In the supplementary counter affidavit dated 3.3.2011 the LDA has denied the averments made in the rejoinder affidavit. However, in the supplementary rejoinder affidavit petitioner has reiterated the stand taken in the writ petition as well as the rejoinder affidavit. It is also reiterated that on the one hand, the LDA has admitted that both the parties are bound by the terms of agreement, but on the other hand, it is trying to open the issue which was resolved the Vice Chairman, LDA by passing speaking and reasoned order on 15.3.2005, consequent to which, there was a supplementary agreement between the parties on 11.7.2005. It is also alleged that due to arbitrary and mala fide act on the part of the LDA, the petitioner-society is deprived of the land which has already been allotted in its favour. The LDA is also trying to reduce the area of the plot which was allotted in favour of the petitioner by the supplementary agreement. It is also alleged that the LDA in an absolutely illegal manner has changed the lay out plan in utter disregard to the supplementary agreement dated 11.7.2005 which cannot be sustained in the eyes of law.

On due consideration of rival submissions we find that admittedly the land in question belonging to the petitioner was acquired by the LDA vide Notification No. 339/XI-5-84-55LA-84 dated 8.12.1984. It is also clear that the petitioner society was persuaded to enter into an agreement dated 22.2.1995 whereby it was settled to provide an area of 6000 square meters.

Learned Senior Counsel for petitioner-society in the aforesaid premises submitted that the petitioner-society has made the entire payment in respect of the land settled in its favour within the time frame irrespective of the nature and amount of charges which is also admitted by the LDA in its counter affidavit. The total area as agreed to be provided to the petitioner was 61,181.47 square meters vide the agreement dated 23.2.1995. However, only an area of 46, 649.20 square meters of land was handed over to the society and the remaining being 14,532.27 Sq. Mts. was illegally detained by the respondent authorities. The Vice Chairman, LDA vide his order dated 15.3.2005 has held that the petitioner society was entitled to get the area of balance land. It was also provided that the entire mount towards development charges amounting to Rs. 2,83,32,417.91 was already paid, therefore, the LDA was under obligation to execute the sale deed in respect of the remaining land. Thus a fresh agreement dated 11.7.2005 was entered into between the parties. Vide the said agreement, the parties were also asked to pay the amount of Rs. 87,97,836.25. That amount too was paid well within time which is admitted by the respondent. Even thereafter, only an area of 7384.50 has been delivered to the petitioner-society and the rest 7147.77 square meters is yet to be delivered in respect whereof also, the development charge of Rs. 43,27,259.95 has already been deposited. Thus, according to learned Senior Counsel, the act of respondents is absolutely arbitrary, illegal, and in fact, instead of petitioner being asked to pay further amount, the respondents be held liable to handover the land and also pay interest for not carrying out the development works; detaining the land on frivolous ground, and holding its registration in the name of the Members of the Society. Besides, the remaining land in controversy which the petitioner was entitled to get, namely, 14,532.27 square meters in terms of the agreement of 1995, was illegally sold to some other persons, therefore, on that count also, the respondents were liable to be saddled with the payment of costs as also to return the development charges along with interest.

On the other hand, learned counsel for LDA has taken the plea that the petitioner has violated the bye-laws of the society by allotting more than one plot to one family. The petitioner society has also utilized the land for commercial purpose. Thus, the society is bound to pay the dues to the Authorities.

On due consideration of rival submissions in the light of the pleadings, it is noticeable that the petitioner, a Cooperative Housing Society, was registered under the provisions of U.P. Cooperative Societies Act, 1965 with objective to acquire, develop and sell the land towards the benefit of its members. The petitioner-society, thus, purchased 45 Bighas, 6 Biswas, 6 Biswansis and 6 Kachwansis of land in Bijaipur and Kamta area which now form the part of the present Gomti Nagar. The State of U.P. tried to acquire and take possession of the land ad-measuring 40 Bighas, 6 Biswas, 3 Biswansis, out of the aforesaid of 45 Bighas, 6 Biswas, 6 Biswansis and 6 Kachwansis, belonging to the petitioner-society vide Notification No. 339/XI-5-84-55LA-84 dated 8.12.1984 issued under the provisions of Land Acquisition Act. Thus, the petitioner-society preferred Writ Petition No. 2039 (MB) of 1986, wherein the Court granted the stay order on 3.4.1986. As the respondents tried to illegally take possession of the land, the petitioner-society filed a contempt petition and vide the order dated 17.4.1986, the Vice Chairman, LDA, was summoned to appear in Court. In order to settle the dispute, the parties entered into an agreement on 23.2.1995 by way of compromise. As a result of the compromise, an area ad-measuring 61181.47 Sq. Mts. being 60% of the total land area of 1,01,986.00 Sq. Mts. sought to be acquired from the petitioner at different sites was agreed to be handed over to the petitioner. Thus, agreements and compromises were arrived at on 15.7.1994 and 23.2.1995 and the Writ Petition No. 2039 (MB) of 1986 was disposed of.

It also appears that despite making all payments including the development charges, admittedly, by the petitioner-society as is reflected in the order dated 15.3.2005 passed by the Vice Chairman, LDA, an area of 14,532.27 Sq. Mts. out of the total agreed area of 61,181.47 Sq. Mts. was not handed over to the petitioner. Thus, a compromise was arrived at on 11.7.2005 for handing over the remaining part of land. The order passed by Vice Chairman, LDA, also forms the part of the compromise agreement between the parties. Even then, only an area of 7384.50 Sq. Mts. of land out of total remaining area of 14532.27 Sq. Mts. was made available to the petitioner-society. It also appears that even without the remaining land being made available, the development charges in respect thereof Rs. 43,27,259.95 was also demanded and paid. The land was not handed over and instead vide the order dated 22.3.2007 the Executive Engineer (Land Acquisition) has stopped the registration and mutation of land settled in favour of the petitioner-society, on a flimsy ground that the petitioner-society has not given the details of the payment of development charges. Thus, the sale deed has not been executed in respect of the remaining land. Though, It is admitted by the respondents that they are bound to honour the terms of settlement agreement of 1995 as well as 2005 with further admission that they were not able to carry out the development despite the charges having been realized, it was not open for them to rake up the new issues in order to conceal the oblique motive and intention to non-perform as per the settlement arrived between the parties. Not only that, they have also reduced the size of the plot in the lay out plan in respect of the petitioner-society.

From the orders passed during the course of proceedings and referred to herein above, it is clearly evident that the parties are not able to settle the dispute even before the High Court Mediation Centre and further that the remaining land of 14,532.27 Sq. Mts. which the petitioner-society has been found to be entitled to get vide the order of Vice Chairman, LDA was admittedly sold to some other persons. In view of the fact that even after two rounds of litigation and clear admission about the right of petitioner-society to get the remaining land in lieu of its land acquired in 1986, it is not open for the respondents to look into the bye laws which essentially comes within the purview of powers of the Registrar, U.P. Co-operative Societies. It is a plain and simple obligation on the part of the respondents to hand over the possession of the land in terms of the compromise settlements of1995 and 2005. Besides, vide the report dated 13.5.2011 of the Accountant General (of which now only the duplicate photo copy is available on the record) submitted towards the order of this Court dated 7.3.2011 in order to find out as to whether the petitioner-society is liable to pay the interest amount, the following conclusions have been noted:

2- vuqiwjd vuqcU/k fn0 11-7-2005 ds vuqlkj 14532-27 oxZ ehVj Hkwfe miyC/k djk;k tkuk Fkk ijUrq 7147-47 oxZ ehVj Hkwfe lfefr dks vc rd miyC/k ugha djk;k x;k gS tcfd lfefr }kjk nks o"kksZ ds Hkhrj 30-4-2007 rd 14532-27 oxZ ehVj Hkwfe dk fodkl 'kqYd :0 87]97]836-30 tek dj fn;k x;k FkkA foyEc ls tek dh xbZ fodkl 'kqYd dh fdLrksa ij izkf/kdj.k }kjk n.MkRed O;kt :0 364]338-00 dh ekax fnukWd 30-6-2009 rd dh xbZ FkhA ftlls lfefr }kjk fnukWd 8-6-2009 dks pkyku }kjk izksVsLV ds lkFk tek dj fn;k x;k A tcfd vkfMV dh x.kuk ds vuqlkj foyECk ls tek dh xbZ fdLrksa dk n.MkRed C;kt vuqcU/k fnukWd 23-2-1995 dh mi/kkjk ¼14½ ds vuqlkj :0 1]49]006-72 gksrk gSA

¼x.kuk 'khV layXud 3½

3- izkf/kdj.k }kjk lfefr dks miyC/k ugha djk;h x;h 7147-77 oxZ ehVj Hkwfe dk fodkl 'kqYd :0 43]27]259-95 dk Hkqxrku lfefr }kjk n.MkRed C;kt lfgr fd;k tk pqdk gSA mDr Hkwfe 7147-77 oxZ ehVj izkIr ugha gksus ds dkj.k tek fodkl 'kqYd ij lfefr }kjk vius fjV ;kfpdk esa izkf/kdj.k ls n.MkRed C;kt dh ekax fd;k x;k gSA

4- izkf/kdj.k }kjk miyC/k djkbZ xbZ 7384-50 oxZ ehVj Hkwfe dk fodkl 'kqYd :0 44]70]576-30 Fkk ftlesa ls :0 65][email protected]& fu/kkZfjr frfFk ds ckn foyEc ls tek dh xbZA lfefr }kjk foyEc ls tek dh xbZ /kujkf'k ij vuqcU/k fnukWd 23-2-1995 dh /kkjk VIII dh mi/kkjk ¼14½ ds vuqlkj n.MkRed C;kt :0 1607-67 ns; FkkA tcfd lfefr }kjk n.MkRed C;kt :0 3]62]730-33 ¼3]64]338-00&1607-67½ vf/kd tek fd;k x;k FkkA

5- izkf/kdj.k }kjk le; lhek ds vUnj fodkl dk;Z djkdj tehu lfefr dks miyC/k djk;s fcuk gh fodkl 'kqYd rFkk ml ij n.MkRed C;kt ysus dk gd gS ;k ugha bl ij fu.kZ; ysus dk dsoy ekuuh; mPp U;k;ky; ds {ks+=kf/kdkj dk fo"k; gS vr% ;fn ekuuh; mPp U;k;ky; bl fu"d"kZ ij igqWprk gS fd fcuk Hkwfe miyC/k djk;s rFkk fodkl dk;Z iw.kZ djs izkf/kdj.k fodkl 'kqYd ,oa n.MkRed C;kt ikus dk vf/kdkjh ugha gSA rc fLFkfr ;g gksxh fd izkf/kdj.k }kjk fy;k x;k dksbZ Hkh n.MkRed C;kt ns; ugha FkkA

ekuuh; mPp U;k;ky; ds voyksdukFkZ izLrqrA

¼ts0ih0flag½

13-5-2011

ofj"B ys[k ijh{kk vf/kdkjh ,0ch0 I

dk;kZy; iz/kku egkys[kkdkj ¼flfoy vkfMV½]

m0iz0 bykgkckn

A copy of the report was also given to the respondents and they have not filed any objection thereto, particularly in respect of the factual findings recorded therein.

Thus, the order dated 22.3.2007, passed by Executive Engineer (Land Acquisition), respondent no. 5, vide Annexure No. 9, is hereby quashed and the respondents are directed to execute the sale deed in respect of the remaining land, namely, 7,147.77 square meters as agreed to vide order dated 11.7.2005, pursuant to the order of the Vice Chairman, Lucknow Development Authority dated 15.3.2005. The respondents are also directed to hand over the possession of the plots in terms of the agreement after execution of the sale deed, free from all encumbrances. However, we decline to grant interest as prayed for by the petitioner-society at the rate of 16% on a sum of Rs. 43,27,259.95 with effect from 11.7.2005 by the Lucknow Development Authority to the petitioner-society.

The writ petition is, thus, allowed to the extent as provided hereinabove.

			         (Anurag Kumar,J)       (Uma Nath Singh,J)
 

 
7.6.2013
 
anb/Irfan/Rizvi