Raghvir Singh & Another vs State Of U.P. Thru' Secy. Urban ...
2017 Latest Caselaw 5068 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - C No. - 64373 of 2008
 

 
Petitioner :- Raghvir Singh & Another
 
Respondent :- State Of U.P. Thru' Secy. Urban Development & Others
 
Counsel for Petitioner :- A.K. Gupta,M.K. Pandey,Manoj Kumar Pandey
 
Counsel for Respondent :- C.S.C.,A.S. Rana
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

Heard Sri Shashi Nandan learned Senior Counsel for the petitioners and Sri A.S. Rana, learned counsel for the respondent Awas Evam Vikas Parishad.

In this case a personal affidavit of Sri S.B. Singh Deputy Housing Commissioner dated 18th September, 2016 has been filed, copy whereof has also been served of the learned counsel for the petitioners but the same is not on record and therefore, the office is directed to trace out the same and place it on record. We have however proceeded on the strength of a copy of the affidavit supplied by Sri A.S. Rana himself.

The present writ petition had been filed initially praying for a mandamus commanding the respondents to consider the representation of the petitioners dated 27th October, 2008 and 3rd November, 2008 for allotment of land on priority basis, keeping in view the fact that the land of the petitioners had been been acquired by the respondents Awas Evam Vikas Parishad as a result whereof they stood displaced. This allotment on priority basis to displaced tenure holders is permissible in terms of U.P. Awas Evam Vikas Parishad Plots and Housing Regulations and Allotment Rules 1979.

During the pendency of the writ petition a counter affidavit was filed on behalf of the respondents on 22nd March, 2012 annexing therewith an order dated 2nd February, 2006 which is stated to have been passed deciding the representation of the petitioners in terms of the directions issued earlier on 9th August, 2005 in Writ Petition No. 54339 of 2005 filed by late Sri Asha Ram Sharma and 16 others. The petitioners herein are the heirs of the late Sri Asha Ram Sharma.

A rejoinder affidavit to the said counter affidavit was filed stating in paragraph 18 that a copy of the order dated 02.02.2006 was not served on the petitioners earlier, and from a perusal of the order itself it appears that a copy of the order was addressed to the counsel of the petitioners in the said writ petition that stood finally disposed off in 2005 instead of sending the said order to the petitioners. Thus, the contention of the petitioners that they were not in receipt of the copy of the said order appears to be correct as dispatch of the order to the counsel of the petitioners in a case, where the engagement of the counsel stood terminated with the disposal of the case in 2005, cannot be accepted as a service on the petitioners of that petition.

However, upon receipt of the counter affidavit in 2012, the petitioners filed an amendment application challenging the order dated 2nd February, 2006 which amendment application had been allowed and was incorporated the writ petition. Consequently, now the relief prayed for is two fold mainly to quash the order dated 2nd February, 2006 and issue a direction to the respondents Awas Evam Vikas Parishad to allot the land to the petitioners in terms of the resolution dated 10th July, 1999 and the compromise dated 12th August, 1999 coupled with the resolution dated 14th December, 2002 copy whereof has been filed as annexure no. 2 to the counter affidavit. In our opinion, there is no delay as the order dated 02.02.2006 does not appear to have been served as observed above. The laches, if any, therefore stand explained.

It is in the aforesaid background that the affidavit of the Deputy Housing Commissioner came to be filed on 18th September, 2016 disputing the stand and claim on merits taken by the petitioners.

The background of the dispute is that the petitioners Late father Sri Asha Ram, keeping in view the nature of allotment as claimed by them on priority to displaced tenure holders, applied for allotment in terms of Rule 30 of the 1979 Rules referred to hereinabove. He had applied timely which fact is undisputed, rather admitted in the counter affidavit as well as the personal affidavit filed by the Deputy Housing Commissioner. The only dispute that has been raised is that the petitioners father having applied and having given his consent as per sub-Rule (2) of Rule 30 of the 1979 Rules, had participated in the allotment procedure through lottery system but remained unsuccessful in getting allotment. The counter affidavit states that since he remained unsuccessful due to large number of applicants, he was required to give a fresh consent with regard to subsequent lotteries having been drawn, which according to the respondents took place on 08.08.2003, 20.12.2003, 19.01.2004 and 30th March, 2004. The affidavit of the Deputy Housing Commissioner asserts that since late Sri Asha Ram Sharma did not give any fresh consent in the subsequent lotteries that were conducted referred to hereinabove, therefore, his name did not find place for any allotment in future.

The second ground taken to non suit the petitioners is that the petitioners had not accepted the terms and conditions as imposed in the impugned communication dated 2nd February, 2006, whereby allotment was offered on current market rates.

The petitioners have now come up challenging the said order contending that firstly the petitioners are not required to seek allotment on current rates inasmuch as their allotment would be governed by the 1979 Rules read with the resolutions of 1999 and 2002 referred to hereinabove and secondly they belong to the category of displaced tenure-holders entitled for priority allotment. In the circumstances, the imposition of a fresh condition while rejecting the representation is unjustified.

Sri Shashi Nandan learned Senior Counsel for the petitioners further submitted that the stand taken in the affidavit of the Deputy Housing Commissioner that the petitioners had not given any written consent in the subsequent lotteries is a misplaced contention on behalf of the respondents inasmuch as Rule 30(2) of the 1979 Rules requires that consent has to be given scheme wise and in the instant case, the scheme has nowhere been altered nor have the petitioners applied for any allotment on priority in any other scheme. Consequently, the consent already given by the petitioners' father on two occasions earlier (An RA-1 and RA-2) respectively subsist and there is no requirement of a fresh consent. The petitioners also are bound and are to abide by the same. He further submits that the demand of current rates was objected to by the petitioners clearly on the ground that a fresh consent for current rates cannot be extracted from the petitioners as the consent to purchase in terms of the resolutions passed earlier is already on record. He therefore, submits that the requirement of a fresh consent on the facts of the present case is an absolutely incorrect stand taken by the respondents.

Refuting the aforesaid submissions Sri A.S. Rana, submits that the consent is required lottery wise, and since in the subsequent lotteries that were conducted, the petitioners failed to give their consent and rather objected to the realization of current rates, therefore, the petitioners are not entitled to any such benefit of allotment on priority basis either through the lottery system or otherwise. Sri A.S. Rana also submits that so far as the demand of current rates is concerned the same is also justified inasmuch as, if the allotment has to be made afresh, then keeping in view the valuation of the land and its availability the petitioners cannot claim that they should be allotted land as per old rates that were existing in the year 1999.

We have considered the submissions raised. The allotment on priority basis to displaced tenure holders is governed by the 1979 Rules particularly Rule 33 thereof. The same provides that land in excess of 25% of the acquired land shall not be given to any such claimant. Secondly, any such claimant will have to apply by the date fixed. Thirdly, there are certain other conditions of ineligibility also referred to herein in respect of the number of plots that can be claimed and fourthly, the priority has to be fixed on the strength of the categorization given therein. It goes without saying that the first top priority is given to displaced persons to which category the petitioners belong. There is , therefore no dispute on this ground. There is also no dispute that the petitioners father late Sri Asha Ram Sharma had applied within time and had given his consent as stated in the rejoinder affidavit (RA-1 and RA-2) or on 04.02.2003 as recorded in the impugned order dated 02.02.2006. There is also no dispute, as is evident from the order dated 2nd February, 2006, that he was allowed to participate in the lottery that was conducted on 8th April, 2003 but due to a large number of applicants and the lottery system having been adopted, late Sri Asha Ram Sharma could not succeed in getting an allotment of a plot.

While rejecting the representation on 2nd February, 2006 the right of the petitioners who are the heirs of late Sri Asha Ram Sharma to participate in a subsequent lottery has not been disputed and their claim for being considered for such allotment on priority basis has also not been disputed. The only condition that has been inserted is that the petitioners should give their written consent for consideration in future lottery, and that if the petitioners consent for getting allotment on the strength of current market rates, they shall be considered. It is this part which has now been challenged by the petitioners on the grounds referred to hereinabove.

On the facts of the present case, what we find is that in the scheme in question namely Vashundhara Yojna Ghaziabad, the entitlement of the petitioners to get priority allotment in the displaced category is not disputed which is to be in terms of Clause 3 of the resolution dated 10th July, 1999 and the compromise that was entered into on 12th August, 1999. It is on record that the consent which was given by late Sri Asha Ram Sharma, and a copy where is annexure no.1 to the rejoinder affidavit, categorically contains a declaration that was got filled up in a printed proforma of the respondents that the rates that have been agreed upon would be that which forms part of the compromise dated 12th August, 1999. The said rates are therefore, not current market rates. Not only, this the affidavit of the Deputy Housing Commissioner dated 18.09.2016 brings on record the resolution dated 14.12.2002 where resolution no.1 also records that the same formula as was accepted in the compromise in 1999 together with certain amount of increase was to be adopted.

It is thus evident that the resolutions referred to hereinabove including the resolution dated 14.12.2002 ought to be the guiding factor for the purpose of charging the rates in order to allot the land to such displaced persons who fall in the category as in the case of the present petitioners. The rates, therefore, cannot be current market rates as stated in the impugned order dated 2nd February, 2006. The said order does not even refer to the aforesaid resolutions which form part of the record of the present proceedings including the resolution dated 14.12.2002 which has been filed along with the personal affidavit of the Deputy Housing Commissioner. The affidavit of the Deputy Housing Commissioner nowhere indicates that current market rates are to be realized through the lottery system from such category of the applicants of the petitioners.

In the circumstances, the order of the Awas Evam Vikas Parishad dated 2nd February, 2006 to the aforesaid extent is clearly vitiated. We, therefore, find that the demand of current rates made under the impugned order dated 2nd February, 2006 cannot be sustained.

Apart from this, the contention on behalf of the respondents of a fresh consent also cannot be accepted inasmuch as the fresh consent appears to have been called for only for the purpose of enforcing the terms and conditions contained in the order dated 2nd February, 2006 relating to realization of current rates. The petitioners had objected to the same but the respondents instead of accepting the said request proceeded to dispatch a letter on 25th June, 2014 calling upon the petitioners to participate in a fresh lottery, according to the new current free hold rates of Rs. 47,040/- per sqm. The petitioners filed an objection to the same, copy whereof has also been filed along with the rejoinder affidavit but of no avail.

It is in this background that we find that the demand raised by the respondents Awas Evam Vikas Parishad does not appear to be justified nor are the petitioners required to give any fresh consent in respect of the current rates. It is not the case of the Awas Evam Vikas Parishad that there was no consent for allotment in terms of sub Rule (2) of Rule 30 as noted hereinabove or the consent given by the father of the petitioners had been rejected or withdrawn.

The stand taken is that a fresh consent lottery wise had not been given by the petitioners. In view of what has been recorded hereinabove, we do not find any reason for the respondents to have demanded a fresh consent on current rates as the consent was only required for allotment on priority basis, the rates already been settled under the resolutions referred to hereinabove.

There is yet another reason as urged by the learned counsel for the petitioners, namely that other tenure holders of the same category of displaced persons who had applied and were successful in the lottery have been given allotments. The petitioners also belong to the same class and therefore, they cannot be discriminated by denying them allotment on priority basis. The lottery has to be within the same class of persons and from the resolutions read with the Rules, it appears that the lottery system for this allotment on priority basis has been adopted to ensure that the allotment is made in a manner that it does not result in discrimination in different sectors. This aspect of the matter had also to be taken into consideration as a result whereof the impugned order dated 02.02.2006 suffers from an infirmity on this count as well and therefore, the learned counsel for the petitioners is right in his submission that denial of such benefit to the petitioners violates Article 14 of the Constitution of India.

Consequently, the writ petition deserves to be allowed to the aforesaid extent. The demand raised for depositing the price at current rates under the impugned order dated 2nd February, 2006 is hereby quashed. The consequential demand vide letter dated 25.06.2014 is illegal. The petitioners shall be entitled to participate in the lottery to be conducted in future or otherwise for allotment subject to availability of land and satisfaction of other conditions, and shall also be entitled to be considered for allotment in terms of the observations made hereinabove.

Order Date :- 6.10.2017

M. ARIF