Allahabad High Court
Madhu Pandey & 5 Others vs State Of U.P. & 3 Others on 5 December, 2014
Bench: Dinesh Maheshwari, Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 19/11/2014.
Delivered on 05/12/2014.
Case :- WRIT - C No. - 59306 of 2014
Petitioner :- Madhu Pandey & 5 Others
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Dheeraj Kumar Dwivedi,K.K. Tripathi
Counsel for Respondent :- C.S.C.,Vivek Varma
With
Case :- WRIT - C No. - 56077 of 2013
Petitioner :- Ram Baboo Tiwari And 8 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Babu Lal Ram
Counsel for Respondent :- C.S.C.,Pranjal Mehrotra,Vivek Varma
And
Case :- WRIT - C No. - 55433 of 2014
Petitioner :- Ram Baboo Tiwari & 7 Others
Respondent :- State Of U.P. & 3 Others
Counsel for Petitioner :- Babu Lal Ram
Counsel for Respondent :- C.S.C.,Avanish Mishra
Hon'ble Dinesh Maheshwari,J.
Hon'ble Yashwant Varma,J.
(Delivered by Hon'ble Yashwant Varma,J)
These three writ petitions emanate from a common dispute namely: The rights claimed by the petitioners in respect of a vacant plot of land standing adjacent to the EWS Houses allotted to them by the Kanpur Development Authority (hereinafter called the "Authority"). All the petitioners assert that they are allottees of the houses constructed under the aforesaid Scheme floated by the Authority and that they have been residing there right from 1998-99. Their claim is for allotment of an additional 40 Sq metres of land standing adjacent to the houses originally allotted to them.
Writ Petition No.56077/2013 has been preferred for quashing an order dated 12/9/2013, in terms of which the Authority has asked the petitioners to claim refund of the application money deposited by them pursuant to a scheme of the Authority to allot adjacent vacant land.
Writ Petition No.55433/2014, challenges an order dated 24/9/2014, in terms of which the Authority has called upon the petitioners therein to remove their illegal possession and structures standing upon the adjacent vacant plots. The last writ being Writ Petition No.59306/2014, challenges the auction notice issued by the Authority calling for bids for auction of the adjacent vacant plots in question.
In Writ Petition No.56077/2013, the respondent Authority was called upon to file its reply which has since been submitted. No interim orders were passed in this writ petition. Writ Petition No.55433/2014, which challenges the notice issued by the Authority for removing the illegal constructions and for handing over possession of the adjacent vacant plots was called before a Coordinate Bench of this Court on 16/10/2014, when it was directed to be listed along with Writ Petition No.56077/2013.
When the last of the aforesaid three writ petitions came up before us for initial hearing, it was pointed out on behalf of the petitioners that pursuant to the notices issued by the Authority, auction proceedings were to commence shortly and that upon payment of the registration amount by 05/11/2014, the plots itself would be settled by a lottery system on 18/11/2014. Upon hearing the counsels for the respective parties, this Court on 11/11/2014, passed the following interim order:
"During the course of submissions, having regard to the subject matter, we are of the view that without prejudice to the rights of either of the parties, such of the petitioners or similarly circumstanced persons, who wish to participate in the auction proceedings, but had not been able to file the requisite applications and could not deposit the requisite amount before the cut of date i.e., 05.11.2014, may be permitted to make the requisite deposit and submit off line applications by 13th November, 2014. The respondent Authority may accept such applications, of course, subject to final orders to be passed in this matter.
This matter be listed on 14.11.2014 as fresh along with Writ-C No. 56077 of 2013, as also Writ-C No. 55433 of 2014."
Thereafter the three writ petitions were taken up for consolidated hearing on 19/11/2014.
Before proceeding to judge the merits/demerits of the contentions advanced on behalf of the petitioners, it would be apposite to pause here and briefly indicate the background in which the present writ petitions have come to be preferred before this Court.
Undisputedly, the petitioners were allotted plots admeasuring approximately 43 Sq metres by the Authority under its E.W.S. scheme. The allotment of the E.W.S. houses in favour of the petitioners is admitted to the Authority except in respect of petitioners nos. 4, 6 and 7 in Writ Petition No.56077/2013, and in respect of which the Authority asserts that no allotment at all was made in their favour. These houses also had vacant land adjacent thereto admeasuring approximately 40 Sq metres. It appears from the contentions advanced on behalf of the contesting parties that these adjacent vacant plots came to be put to use by the petitioners herein. It appears that subsequent to allotment, on or before August 1998, an advertisement was taken out by the Authority calling for applications for allotment of this adjacent vacant land. The applications were to be made to the Authority accompanied with an application fee of Rs. 1000/-. From the records produced by the Authority before us and the affidavit filed in response to the writ petition, it appears that the petitioner nos. 1, 3, 5 and 6 in Writ Petition No.59306/2014, petitioner nos. 1, 2, 4, 5 and 7 in Writ Petition No.55433/2014, and petitioner nos.1, 2, 3, 4 and 5 in Writ Petition No.56077/2013, applied for allotment and also deposited the application fee as required by the Authority. However, it is the admitted case that no formal orders of allotment were made by the Authority on these adjacent vacant plots in favour of any of the petitioners. It further transpires that although a scheme of allotment for adjacent vacant land to the allotees of the E.W.S houses had come up for consideration before the Authority from time to time, ultimately it was decided that the extra adjacent land could not be allotted to the original allottees and that such land should be separately developed, new plots carved out and subsequently auctioned. It was pursuant to this decision of the Authority that the petitioners were directed to claim refund pursuant to the order dated 12/9/2013, were put to notice to remove their possession and constructions from the adjacent land vide notice dated 24/9/2014, and ultimately the action of the Authority in carving out new plots upon this adjacent vacant land and putting them to auction.
Learned counsel for the petitioners Shri K.K. Tripathi and Shri Dheeraj Kumar Dwivedi who have been heard in support of the writ petitions have vehemently argued that the action of the respondent Authority is arbitrary inasmuch as it was pursuant to its own policy decision taken in August, 1998, that the petitioners had applied for allotment of the adjacent vacant land. It was contended by the learned counsel for the petitioners that today after more than a decade it was not open to the respondent Authority to renege from its promise of allotment of the said land. It was submitted that pursuant to the decision of the Authority the petitioners had proceeded on the assumption that the said plots would be ultimately allotted in their favour and had accordingly proceeded to occupy the same and also raise constructions thereon.
Learned counsel for the petitioners further contended that in respect of one such allottee an order of allotment had also been made by the Authority on 08/6/1999, and therefore, the action of the respondents was in clear breach of the mandate of Article 14 of the Constitution of India.
Shri Vivek Varma, learned counsel who has appeared for the contesting respondents/Kanpur Development Authority, on the other hand submitted that no principle of estoppel operated in favour of the Petitioners, the mere making of an application did not result in a contract coming into existence and that the deposit of Rs.1000/- made by some of the petitioners was only in the nature of an application fee and not payment towards the cost of the adjacent vacant land. He further submitted that at the time of original allotment no promise was held out to the Petitioners that the adjacent vacant land would also be settled in their favour. Shri Vivek Varma, drew our attention to the application forms submitted by some of the petitioners to show that the E.W.S houses allotted to the petitioners itself was of 43 Sq metres and therefore, clearly allotment of additional 40 sq metres of vacant land could not possibly be made in favour of the existing allottees consequent to the change in the policy decision of the Authority. Shri Vivek Varma further submitted that the solitary allotment made in the year 1999, in favour of Smt. Shanti Devi Saxena could not inure to the benefit of the petitioners inasmuch as there can be no negative equality nor can the Authority be compelled to act in a manner which would perpetuate an illegality. The submission of Shri Vivek Varma, learned counsel appearing for the Kanpur Development Authority, was that upon change in the policy decision of the Authority, no person could have been allotted adjacent vacant land. Shri Vivek Varma further submitted that considering the fact that the Authority was a creature of statute, discharging developmental functions under an Act, it was obliged to ensure that the property set apart and put under its management and control was settled and disposed of in accordance with law. Shri Vivek Varma, submitted that out of the 15 E.W.S houses in question with adjacent vacant land appurtenant thereto, 14 new plots had been carved out by the Authority and it was these plots which were proposed to be auctioned in accordance with the terms and conditions of the advertisement impugned in Writ Petition No.59306/2014.
Having considered the material on record and pondered upon the rival submissions, we are of the opinion that no rights stood created in favour of the petitioners by mere filing of the applications. The deposit of Rs.1000/- was only towards application fee and was not part payment towards cost of the adjacent vacant plots. The respondent Authority upon consideration of the material before it as well as its needs and requirements was entitled to review/revisit the policy decision taken by it and was clearly not fettered in this regard in any manner in law. The only rights which stood invested in the petitioners was with respect to the allotted E.W.S houses. It was not the contention of the petitioners that there was at the time of allotment any representation made by the Authority that adjacent vacant land would also be allotted to them.
We cannot loose sight of the fact that these adjacent vacant plots in themselves were equivalent to the total area upon which the E.W.S houses allotted to the petitioners stood. The development of these plots was the statutory obligation of the Authority and, therefore, we find no illegality in its action of creating new plots thereupon and settling the same by auction.
The petitioners appear to have taken possession of the aforesaid adjacent vacant land without any allotment order existing in their favour. They appear to have possessed these plots pursuant only to the application for consideration for allotment made by them in the year 1998. If the Authority has chosen now to call upon the petitioners to remove their unauthorised construction there from and to remove their possession from and over the said plots, the same does not suffer from any illegality.
Lastly, coming to the allotment said to have been made in favour of Smt. Shanti Devi Saxena, suffice it to state that the said allotment appears to have been made contrary to the policy decision taken by the Authority. It is trite law that there can be no parity in illegality. Article 14 of the Constitution of India neither embodies nor does it sanction negative equality. Even otherwise, in the light of the policy decision of the Authority as existing presently, no mandamus can be issued commanding the respondents to act contrary to the same.
For the aforesaid reasons, we find no merit in these writ petitions and they are accordingly dismissed.
Order Date :-05/12/2014
SB
(Yashwant Varma,J) (Dinesh Maheshwari,J)
