Lalta Prasad Sharma vs State Of U.P. & 2 Others
2017 Latest Caselaw 7456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32
 
Case :- WRIT - C No. - 36311 of 2014
 
Petitioner :- Lalta Prasad Sharma
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Vivek Saran,Prabhakar Tripathi,Saurabh Shukla
 
Counsel for Respondent :- C.S.C.,Alpana Dwivedi,D.S.Chauhan
 

 
Hon'ble Vikram Nath,J.

Hon'ble Salil Kumar Rai,J.

(Dictated by Hon'ble Salil Kumar Rai, J.)

1. Heard learned counsel for the petitioner, Sri D.S. Chauhan, learned counsel representing respondents No. 2 and 3 and learned Standing Counsel representing respondent No. 1.

2. This writ petition has been filed by the petitioner praying for writ of certiorari quashing the order dated 9.4.2014 passed by the respondent No. 2 as communicated through letter dated 17.5.2014 of respondent No. 3, whereby Vice Chairman, Mathura-Vrindavan Development Authority, Mathura (hereinafter referred to as, 'Development Authority') had cancelled allotment of Plot No. C-147 allotted to the petitioner under Krishna Vihar Housing Scheme, Mathura. A further prayer has been made for a direction to the respondents No. 2 and 3 that allotment of Plot No. C-147 be restored to the petitioner on the same land rate as was fixed for Plot No. D-68 allotted to him earlier.

3. The facts as stated in the writ petition are, that the petitioner was allotted Plot No. D-68 on 27.3.2004 under Krishna Vihar, Ranchi Bangar Housing Scheme, Mathura (hereinafter referred to as, 'Scheme'). The area of Plot No. D-68 was 112.50 square meters. The petitioner contends in the writ petition that he had deposited the entire amount for Plot No. D-68 as sought by the Development Authority for allotment of the said plot. However, the petitioner was not given possession of Plot No. D-68 and was subsequently re-allotted Pot No. C-147 in the same scheme on 13.7.2010 in lieu of his previous plot i.e. D-68. The area of Plot No. C-147 was 162 square meters, which was 49.5 square meters more than Plot No. D-68. The Development Authority demanded increased amount for the additional area and the rate was calculated according to the land rate prevailing at the time Plot No. C-147 was allotted to him. On the failure of the petitioner to pay the extra amount as demanded by the Development Authority, the respondent No. 2 vide order dated 9.4.2014 cancelled the allotment of Plot No. C-147 made in favour of the petitioner and also forfeited 20% of the Registration amount deposited by the petitioner. The said order was communicated to the petitioner through letter dated 17.5.2014 of respondent No. 3.

4. Learned counsel for the petitioner contends that as the petitioner had paid the entire amount for Plot No. D-68 as fixed by the Development Authority, he was entitled to get possession of the same or of alternative plot in lieu of Plot No. D-68 and on the same rate as Plot No. D-68 was allotted to him. It has been further argued by learned counsel for the petitioner that as possession of Plot No. D-68 was not given to the petitioner by the Development Authority for no fault of the petitioner and allotment of Plot No. C-147 to the petitioner was mere conversion for which the Development Authority takes conversion charges, therefore the petitioner cannot be saddled with the liability to pay additional amount as cost of Plot No. C-147 for the additional area in the said plot calculated at the land rate operative on 11.8.2010 i.e. when Plot No. C-147 was allotted to him and the petitioner is liable to pay the cost of Plot No. C-147 calculated on the land rate applicable in 2004 i.e. when Plot No. D-68 was allotted to him. Through supplementary rejoinder affidavit the petitioner has brought a sale-deed dated 5.8.2010 executed by the Development Authority in favour of one Sri Jitendra Kumar who was similarly situated as the petitioner and the cost of the plot has been calculated at the old rate. It has been argued by the learned counsel for the petitioner that for the aforesaid reasons the order dated 9.4.2013 and action of the Development Authority demanding additional payment at the new land rate i.e. the rate prevailing at the time of allotment of Plot No. C-147 are illegal and arbitrary and, therefore, the writ petition is liable to be allowed with the reliefs as prayed by him.

5. In the counter affidavit and supplementary counter affidavit filed by respondents Nos. 2 and 3, it has been stated that there was some litigation between the original landholders and the Development Authority regarding acquisition of lands under the Land Acquisition Act, 1894 (hereinafter referred to as, 'Act, 1894'). Shri D.S. Chauhan, learned counsel for respondents No. 2 and 3 states at the Bar that the litigation finally ended against the respondents No. 2 and 3. It has been stated in the counter affidavit that possession of Plot No. D-68 could not be handed over to the petitioner due to pending litigation as the said plot was part of the land which was also the subject matter of litigation under the Act, 1894. It has further been stated in the counter affidavit that subsequently in pursuance to the decision of the Board meeting of the Development Authority a 'First Come First Serve' scheme was floated and the petitioner was allotted Plot No. C-147 in place of Plot No. D-68 under the same Scheme. In the supplementary counter affidavit filed on behalf of respondents No. 2 and 3, it has been stated that certain new plots measuring 162 square meters and 200 square meters were created in the same Scheme and the allottees, who could not get possession of their previously allotted plot, were offered these new plots on 'First Come First Serve' basis and it was on the said basis that the petitioner was allotted Plot No. C-147. No document showing the details of 'First Come First Serve' Scheme has been annexed either with the counter affidavit or supplementary counter affidavit filed on behalf of the Development Authority. In paragraph No. 10 of the counter affidavit filed on behalf of respondents No. 2 and 3, it has been admitted that the petitioner was not informed about the litigation in respect of lands. It has been stated in the supplementary counter affidavit filed on behalf of respondents No. 2 and 3 and Sri D.S. Chauhan, learned counsel representing respondents No. 2 and 3 has argued that cost of the increased additional area in Plot No. C-147 has been fixed by the Development Authority on the basis of Government Order dated 20.11.1999 (annexed as Annexure SCA-2 to the supplementary counter affidavit). He further relied upon Clause 15 of the aforesaid Government Order and costing has been given in paragraph 10 of the supplementary counter affidavit. He has contended that as additional cost of Plot No. C-147 was calculated on the basis of Government Order dated 20.11.1999, there was no illegality in the same and the petitioner is liable to pay the additional cost of increased area in Plot No. C-147 as demanded by the Development Authority.

6. Considered the pleadings and rival submissions of learned counsel for the respective parties.

7. It is not denied by the respondents-Development Authority in their counter affidavit or supplementary counter affidavit that the petitioner had paid the total cost of Plot No. D-68. It is also evident from the pleadings of the parties and the documents annexed with the writ petition and the counter affidavit/supplementary counter affidavit of the respondents-Development Authority that the petitioner was never informed about the litigation under the Act, 1894 regarding Plot No. D-68. It is also evident from the averments made in the counter affidavit of Development Authority that possession of Plot No. D-68 could not be given to the petitioner due to pending litigation under the Act, 1894. In the said circumstances, it is clear that petitioner was not given possession of Plot No. D-68 for no fault of his. It is also evident from the averments made in the counter affidavit that Plot No. C-147 was allotted to the petitioner in lieu of Plot No. D-68. The aforesaid fact is also evident from the allotment letter dated 13.7.2010 issued by the respondent No. 3 (annexed as Annexure No. 4 to the writ petition).

8. The dispute between the petitioner and Development Authority relates to the land rate to be applied while calculating the price of Plot No. C-147. The contention of the petitioner is that the price of Plot No. C-147 is to be calculated at the land rate applicable to Plot No. D-68 as the Development Authority was liable to hand over possession of Plot No. D-68 to the petitioner after the petitioner had paid the cost of Plot No. D-68 and in case the Development Authority, for no fault of the petitioner and due to pending litigation which was not communicated to the petitioner, was not able to hand over possession of the same then it cannot impose additional liability on the petitioner for allotting another plot in lieu of Plot No. D-68. The contention of the Development Authority is that price of Plot No. C-147 has to be calculated at the new and increased rate in lieu of Government Order dated 20.11.1999 and because Plot No. C-147 was allotted to the petitioner on 'First Come First Serve' basis. The costing of Plot No. C-147 on the basis of increased rate in accordance with the Government Order dated 20.11.1999 is given in para 10 of the supplementary counter affidavit, which reads as follows :-

"In The Years 2004

1-At the time of allotment area of plot was 112.50 Sqm (D-68)

2-At the time of registration tentative rate was 2250/- per Sqm.

3-Tentative cost was finalized in the year 2010 as 2475/- per Sqm.

In The Years 2010

1-Total Area of the Plot No. C-147 is 162.50 Sqm.

2-Additional Land (162-112.50) 49.50 Sqm.

3-Sector rate of Krishna Vihar at the time :- Rs. 5582/- per Sqm

4-Conversation charge (As per G.O. dated 29.05.2009)

(49.50x5582x5/100)=Rs. 13816/-(A)

5-Water Connection Charge Rs. 600/- (B)

6-Cost of extra land

(i) 10% of 112.50=11.25 sqmx2475/=Rs. 27844/-

(ii) Rest area of increased land (49.50-11.25) 38.25x5582=

Rs. 2,13,512 (C)

(As per costing guide lines dated 20.11.1999 para 15)

7.Free hold charge=Cost of Plot x 12%

(i) (Old Plot Area+10% of old plot area) x final cost at that time

112.50+11.25=123.75x2475=3,06,282.00 (a)

Rest land with present cost=38.25 x 5582=2,13,512 (b)

Total cost of plot (a+b)= Rs. 5,19,974/-

Free hold charge=Rs. 5,19,794x12%=62,376/- (D)

8-Balance cost of old plot = Rs. 2,78,272/- (E)"

The dispute between the parties is to Item No. 6(ii) in abovementioned costing/calculation.

9. The contention of learned counsel for Development Authority is that the petitioner was liable to pay the price of Plot No. C-147 calculated at the increased land rate as the petitioner was allotted the said plot on 'First Come First Serve' basis is not acceptable as no document has been brought to our notice by the Development Authority showing that there was any clause in the 'First Come First Serve' Scheme which provided that the plots allotted in lieu of previously allotted plots shall be allotted only at the increased land rate. Further, conversion charges have been imposed on the petitioner and Plot No. C-147 was allotted to the petitioner in lieu of Plot No. D-68 as Development Authority was not able to hand over possession of Plot No. D-68 to the petitioner due to pending litigation and for no fault of the petitioner. Thus, the aforesaid argument of the learned counsel for Development Authority is not acceptable.

10. The second argument of the learned counsel for Development Authority relates to interpretation of Clause 15 of the Government Order dated 20.11.1999. Clause 15 of the Government Order dated 20.11.1999 is reproduced below :-

"15& ekud {ks=Qy ls okLrfod {ks=Qy c<+us ij %&

;fn yht Iyku izkIr gksus ij Hkwfe dh ek=k vkoafVr {ks=Qy ls c<+rh gS] rks c<+s gq;s {ks=Qy esa vkoafVr {ks=Qy ls 10 izfr'kr vf/kd rd iqjkuh nj ls rFkk mlds vfrfjDr c<+s gq, {ks=Qy dh ubZ nj yxk;h tk;sxhA"

11. The marginal heading of Clause 15 of the said Government Order shows that it relates to cases where the actual area of the plot is more than the 'standard area/area of the standard plot'. A reading of the contents of Clause 15 shows that where the actual area of the plot handed over to the allottees is more than the 'area allotted', then 10% of the additional area shall be charged at the original rate and the price of the rest additional area shall be calculated at the new rate. Thus, Clause 15 is applicable only where the area of the plot handed over to the allottee by the Development Authority is more than the area allotted by the Development Authority. The area of Plot No. C-147 is not stated in the allotment letter dated 13.7.2010 issued to the petitioner by respondent No. 3. However, from the letters dated 11.8.2010 and 29.11.2010 and from the averments made by the Development Authority in paragraphs No. 5 and 6 of their supplementary counter affidavit to the effect that new plots measuring 162 square meters and 200 square meters were created under the same scheme for allotment, it is clear that 162 square meters was allotted to the petitioner and, thus, the actual area in his possession if he got possession of Plot No. C-147 would not be more than the area allotted to him as it is not the case of the Development Authority that actual area of Plot No. C-147 is more than 162 square meters. Thus, Clause 15 is not applicable in the case of the petitioner and we are unable to agree with the contention of the respondents No. 2 and 3 regarding the same.

12. In view of the aforesaid reasoning the Development Authority could have charged the price of the additional area in Plot No. C-147 only at the rate at which Plot No. D-68 was earlier allotted to the petitioner and the costing of Plot No. C-147 at the new rate and the amount shown at Item No. 6(ii) has been illegally calculated in as much as the cost of 49.5 square meters in respect of Plot No. C-147 could not have been calculated at Rs. 5582/- per square meters but had to be calculated at the old land rate i.e. Rs. 2475/- per square meters. In the present case the Development Authority has calculated only 10% at the old rate whereas balance additional area has been calculated at the current rate Rs. 5,582/- per square meters because of which price has escalated substantially.

13. In view of the above reasoning, the cancellation of allotment of Plot No. C-147 to the petitioner for his failure to pay the price of Plot No. C-147 calculated on the basis of new land rates i.e. land rate operative in 2010 is illegal and bad in law. For the aforesaid reason, the order dated 9.4.2014 passed by the Vice Chairman of Mathura-Vrindavan Development Authority-respondent No. 2 and as communicated to the petitioner vide letter/order dated 17.5.2014 are hereby quashed. The respondents No. 2 and 3 shall charge from the petitioner total cost of Plot No. C-147 calculated at the rate at which Plot No. D-68 was allotted to the petitioner i.e. at the rate of Rs. 2475/- per square meters. In case the petitioner fails to deposit the requisite amount so calculated in due time as demanded by the Development Authority the allotment of Plot No. C-147 to the petitioner shall be cancelled by the Development Authority. However, if the petitioner within the given time frame deposits the amount so calculated, he shall be given possession of Plot No. C-147 at the earliest by the Development Authority.

14. It will also be open to the respondent No. 3 to verify that whether the petitioner had deposited the requisite amount of Plot No. D-68 as required by the Development Authority under the allotment letter relating to Plot No. D-68 and in case the petitioner had not deposited the same, the Development Authority shall be free to take action in accordance with law without being bound by the observations of this Court.

16. With the aforesaid directions the writ petition is allowed.

Order Date :- 30.11.2017

RPS/-

[Salil Kumar Rai, J.]     [Vikram Nath, J.]