Shyam Sunder Ahuja vs Chairman, Muzaffar Nagar ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 40
 

 
Case :- WRIT - C No. - 19611 of 2008
 

 
Petitioner :- Shyam Sunder Ahuja
 
Respondent :- Chairman, Muzaffar Nagar Development Authority And Others
 
Counsel for Petitioner :- Manoj Kumar Rajvanshi,Naresh Chandra Rajvanshi,Rakesh Pande
 
Counsel for Respondent :- C.S.C.,Nipun Singh,P.K. Singh,Rajesh Kumar Pandey,Swetashwa Agarwal 
 

 
And
 

 
Case :- WRIT - C No. - 12337 of 2001
 

 
Petitioner :- Smt.Sarla Devi
 
Respondent :- Muzaffarnagar Development Authority And Another
 
Counsel for Petitioner :- Miss Mona Rajvanshi,M.K. Rajvanshi,N.C.Rajvanshi
 
Counsel for Respondent :- P.K.Singh,H.L.Pandey,Rajesh Kumar Pandey,Rishi Chadha,S.C. 
 
And
 

 
Case :- WRIT - C No. - 12347 of 2001
 

 
Petitioner :- Shyam Sunder Ahuja
 
Respondent :- Muzaffarnagar Development Authority And Another
 
Counsel for Petitioner :- Miss Mona Rajvanshi,Ashok Mehta,M.K. Rajvanshi,N.C. Rajvanshi
 
Counsel for Respondent :- P.K.Singh,Rishi Chadha,S.C.
 
And
 

 

 
Case :- WRIT - C No. - 18149 of 2008
 

 
Petitioner :- Shashank Jain And Another
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Setashwa Agrawal,Nipun Singh,Ravi Kiran Jain,Shashi Nandan
 
Counsel for Respondent :- C.S.C.,M.K.Rajvanshi,P.K. Singh,Rajesh Kumar Pandey,Saurabh Agrawal 
 

 
And
 

 
Case :- WRIT - C No. - 51594 of 2000
 

 
Petitioner :- Rohit Lal
 
Respondent :- Muzaffarnagar Development Authority & Another
 
Counsel for Petitioner :- Miss Mona Rajvanshi,M.K. Rajvanshi
 
Counsel for Respondent :- P.K.Singh,R.K. Jain,Rajesh Kumar Pandey,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Shashi Kant,J.

Heard learned counsel for the parties.

These five writ petitions have been filed in relation to the claim and counter claim of allotment of shops in a commercial complex raised by the Muzaffarnagar Development Authority, which was developed in an exigency to remove encroachments over a public drain in a vicinity adjacent to Bhagat Singh Marg in the city of Muzaffarnagar. There were several shop keepers and according to the Muzaffarnagar Development Authority, 30 to 35 of them were unauthorizedly occupying the area of the drainage which was required to be cleaned up in order to maintain the hygiene and environment of the locality, but in order to ensure that such shop-keepers who had been running their business since decades, should also be accommodated, the Development Authority proceeded to raise a commercial complex and allot shops to all such displaced persons by way of rehabilitation. The shop keepers however contend that they were in occupation lawfully under a lease that was executed by the then municipality of Muzaffarnagar, extending over a considerable period of time, and even if, there was any doubt about the existence of the lease on the basis whereof they were claiming occupation, yet with the offer made by the Development Authority, no such dispute now exists about the entitlement of such shop-keepers for getting shops allotted and rehabilitated. To that extent, we do not find any dispute between the petitioners and the Authority.

It appears that this dispute arose after 1997 when the Development Authority undertook a demolition drive for removing all such shops and also removing such occupants lining the drainage. Also simultaneously proceeding to settle shops. According to the Muzaffarnagar Development Authority in its affidavit, this is a shopping complex Part-II whereabout 294 shops were proposed to be allotted.

There is no dispute that all such shop keepers after facing demolition by the Development Authority proceeded to challenge the said action of the Development Authority, and consequently, petitions and suits were filed by the respective parties. The demolition, therefore was forestalled, and in order to resolve the dispute, the Authority came up with an offer of allotment to all such shop keepers who had to be accommodated including the petitioners herein with a further stipulation that the old shops which had been occupied by them would be demolished. With this end in view, the Muzaffarnagar Development Authority proceeded to make compromises and entered into agreements that have given rise to the present controversy.

It may be placed on record that against such demolition drive two writ petitions were filed before this Court being Writ Petition No. 16067 of 1997 and 16264 of 1997. In between, the settlement had been arrived at and agreements were entered into on 26th June, 1999. Jyoti Prasad Jain (since deceased) had not entered into an agreement but was a petitioner in the writ petition. We shall come to the details of the agreement in all the respective cases later on but suffice it to say that after this fact of agreement having been entered into with specific allocation was brought to the notice of the Court, the aforesaid writ petitions were disposed off on 4th January, 2000 and 6th April, 2000 respectively. The said orders after recording the status of the agreement and exceptions thereto, disposed off the petitions for proceeding of the allocation of shops and demolitions.

It is at this stage that now the separate facts of all the writ petitions deserve to be mentioned giving rise to the present dispute before this Court and the orders passed by the Development Authority from time to time.

We now, therefore, proceed to narrate the facts of Writ Petition No. 51594 of 2000 filed by Rohit Lal who has prayed for a writ of certiorari to quash the order dated 18th October, 2000 whereby the shop offered to him being Shop No. G-3 has been cancelled contrary to the agreement dated 26th June, 1999. The facts narrated in the said writ petition are that Rohit Lal is occupying old Shop No. 30 which is besides the drain and which shop has to be vacated by him. It is claimed that he is occupying the said shop under a lease dated 10th April, 1930 executed by the Muzaffarnagar Municipality which the Muzaffarnagar Development Authority now contends, has already expired. Rohit Lal along with his son Raj Kumar who was separately occupying Shop No. 31 filed Writ Petition No. 20470 of 1997 and the said writ petition was disposed off on 1st July, 1997 by the following order:-

"Heard Shri N.C. Rajvanshi, Senior Advocate, for the petitioner.

It is submitted that respondent Nagar Palika, Muzaffarnagar after taking the law in their hand are trying to demolish the construction raised by the petitioners.

It is also submitted that by virtue of an order dated 14.05.1930 passed by the Municipal Board, Muzaffarnagar contained in Annexure 1 to this writ petition, the petitioners have raised construction and since then they are occupying the same.

Thus, it is not that the petitioners have made any encroachment over it. On the other hand it is submitted that with the permission of the Board the said construction is raised. Therefore, demolition proceedings started against the petitioners is violative of the order dated 14.05.1930. It is also submitted that without observing the Principle of audi alteram partem the steps for demolition have been taken by the Nagar Palika, Muzaffarnagar.

Having heard learned counsel and perusing the petition we are of the considered opinion that if the alleged construction is raised by the petitioners by virtue of the order dated 14.05.1930 contained in Annexure No. 1 to this writ petition, the same is not liable to be demolished till it is adjudicated upon by the competent civil court having jurisdiction to decide it that the alleged construction has been raised in violation of the order dated 14.05.1930 contained in Annexure 1 to this writ petition. Further it is made clear that before initiating proceedings for demolition the principle of audi alteram partem has to be complied with.

Thus, considering the attending circumstances of the case, we direct that the petitioners may file a suit in this regard and may establish that the alleged construction has been raised in accordance with the order dated 14.05.1930 contained in Annexure 1 to this writ petition and further may also seek injunction in this regard, within a month from today. Till then the parties are directed to mention status quo ante.

With this direction this petition is finally disposed of."

Consequently in compliance of the aforesaid judgment of the High Court, the petitioner filed Original Suit No. 401 of 1997 in which the interim injunction prayed for was refused on 12th August, 1997. Aggrieved the petitioner filed First Appeal From Order No. 694 of 1997 in which this Court passed an interim order on 26.08.1997 which is to the following effect:-

"Issue notice.

Mean while the disputed construction to the extent it stands on the land above Nala in respect of which the appellants were granted lease vide deed dated 10.04.1930 shall not be demolished."

The said appeal is stated to have been disposed off later on. However the appeal was pending with an interim order on the date when the agreement was entered into i.e. on 26th June, 1999 and the agreement in Clause-12 stipulated that the appellant will withdraw the said appeal. According to the agreement, the petitioner Rohit Lal was offered a ground floor Shop No. G-1 but during the negotiations, the same was interchanged with one Sai Das and an agreement was arrived at for allotting Shop No. G-3 to the petitioner.

The said allotment was cancelled on 18th November, 2000 on the ground that the petitioner's son has already been allotted Shop No. G-2, and therefore, the petitioner was offered a new shop on the ground floor being G-55. It is this order dated 18th November, 2000 which has been assailed in the present writ petition contending that this amounts to violating the terms of the agreement, inasmuch as, the Development Authority could not have altered the allotment at the behest of any third person for which there was no valid reason. Merely because the son of the petitioner had been allotted another shop, the same could not be a ground to deprive the petitioner of an independent right to receive the allotment, inasmuch as, the petitioner and his son both were having separate shops in the old establishment, and consequently, both had independent rights to claim independent allotments.

When this writ petition came to be filed, it appears other petitions that gave rise to the same controversy were connected with this writ petition. On 30th November 2000, a Division Bench passed an order to implead Jyoti Prasad Jain as respondent no. 3 in the present writ petition. The Muzaffarnagar Development Authority through its counsel filed a counter affidavit on 21st November, 2002. It appears that during the pendency of this writ petition, one Mr. Jagdish Chandra came to be allotted Shop No. G-3, and therefore, the petitioner filed a stay application on 10th April, 2003 praying that the same should not be executed and an impleadment application was also filed with the same averments. However strangely enough, what we find is that even though the impleadment application and the stay application mention the name of Jadgish Chandra yet the order which was passed on 19th October, 2005 by the Division Bench was to implead Jyoti Prasad jain. However Jagdish Chandra is nowhere contesting these entire proceedings, and therefore, we presume that it was the contest of Jyoti Prasad Jain that was taken notice of and then there was a direction to implead him.

We may however record that Sri Anurag Khanna, learned Senior Counsel who has been appearing for the heirs of late Jyoti Prasad Jain, has categorically stated that Jyoti Prasad Jain had not stated any claim with regard to the Shop No. G-3. Consequently neither Jagdish Chandra nor Jyoti Prasad Jain are before us to contest the claim of the petitioner Rohit Lal in relation to his claim of allotment of Shop No. G-3.

It is in the counter affidavit filed by the Muzzafarnagar Development Authority in this case that certain interesting facts relating to the entire dispute deserves to be recorded. In paragraph No. 6-A of the counter affidavit of the Development Authority, it has been stated that Shop No. G-6 to G-11 could not be constructed on account of the land not being available as it continued to be occupied by the Lala Devi Prasad library and the three shop keepers, including Jyoti Prasad Jain who had not vacated the same. In the same paragraph, there is a categorical statement that the land which was meant for constructing the said shops was occupied by the library and three shop-keepers, namely, Jyoti Prasad Jain, Brij Bhushan Mithal and Vinod Kumar. It is in this background that the Muzaffarnagar Development Authority contended that since there was a practical difficulty in the allotments arising out of the aforesaid situation that the offer made to the petitioner came to be cancelled and an alternate shop on the ground floor G-55 was offered to the petitioner.

There is yet another departure in the stand taken by the Development Authority over and above the ground taken for cancellation, namely, that the petitioner had given an undertaking in Clause-12 of the agreement dated 26.06.1999 that he shall withdraw the First Appeal From Order filed before this Court referred to hereinabove, but since he had not honoured his statement and had not withdrawn the appeal from the High Court, therefore also the cancellation order had been passed. Learned counsel for the petitioner has taken an objection to this that this was not the reason in the cancellation order, and therefore, a separate reason stated in the affidavit cannot be a substitute reason for what has been mentioned in the order impugned.

We now move on to the facts of the second writ petition no. 12337 of 2001. This writ petition has been filed by Late Sarla Devi who died during the pendency of the writ petition and her heir Sanjay Kumar Goel has been substituted vide order dated 20th July, 2017. Late Sarla Devi was occupant of old Shop No. 28, and she was offered a new shop in the complex under the agreement dated 26.06.1999 being Shop Nos. G-6. The allotment of Sarla Devi is also almost similar as that of Rohit Lal except for the fact that Sarla Devi was having only one shop and after cancellation under the impugned order dated 18.11.2000, she was offered an alternative Shop No. G-22. Sarla Devi had also filed a suit in which an injunction had been refused and she also filed a First Appeal From Order before this Court in which the interim order was passed at par with that in the case of Rohit Lal (supra).

On 3rd April, 2001, a Division Bench passed an interim order to the effect that in the event Shop No. G-6 has not already been allotted the same shall not be allotted to any person. We may put on record that in this case, an impleadment application dated 9th January, 2003 was filed by Sri Shashank Jain and Jyoti Prasad Jain seeking impleadment on the ground that Shop No. G-6 which is subject matter of the present writ petition is allotted to them and therefore they should be impleaded in the present writ petition. In this application they have disclosed that they had been occupying a shop of the size of 16 feet x 28 feet, and therefore under the order dated 18th November 2000, they have been rightly offered allotment of three shops being G-6, G-7 and G-8. Even though the said impleadment has yet not been formely allowed, and Jyoti Prasad Jain has already died yet Shashank Jain continues to be represented by Sri Anurag Khanna whom we have heard in the present writ petition.

We now come to the facts of the third writ petition being Writ Petition No. 12347 of 2001.

This writ petition has been filed by Sri Shyam Sunder Ahuja challenging the same order dated 18th November, 2000 contending that he is the occupant of old Shop No. 38 and the allottee of New Shop No. G-8 under the impugned order, his allotment has been cancelled and he has been offered an alternative Shop No. G-53. In this petition, an interim order was passed on 3rd April, 2001 that in the event the shop has not already been allotted the same not to allotted any further. We may again put on record that Shop No. G-6, G-7 and G-8 came to be allotted to Jyoti Prasad Jain vide agreement dated 07.12.2000 which is prior to the passing of the said interim order.

From this writ petition, we gather that Jyoti Prasad Jain died on 29th September, 2004 and was succeeded by three sons Rakesh, Rajinish and Shashank. We however find from the pleadings that it is only Shashank Jain and Rajinish Jain who have been pursuing their claim. During the course of the arguments and while hearing the writ petition filed by Shashank Jain being Writ Petition No. 18149 and that of Shyam Sunder Ahuja being Writ Petition No. 19611 of 2008, we had called upon the learned counsel for the Jains to inform the Court about the claim made by their predecessor late Jyoti Prasad Jain for allotment after the agreements had been entered into on 26.06.1999 and the judgment of the High Court dated 04.01.2000 and 06.04.2000. Sri Anurag Khanna on the basis of the instructions received has handed over a copy of the application moved by Jyoti Prasad Jain on behalf of Jain & Company dated 10th January, 2000 which is to the following effect:-

"Before The Muzaffarnagar Development Authority

Through : Vice Chairman

Sir,

The Applicant was arrayed as Petitioner No. 12 in Civil Misc. Writ Petition No. 16264 of 1997 which has been disposed of by the High Court by an order dated 4th January, 2000.

That the order dated 04.01.2000, the High Court has recorded that the petitioner of the said writ petition shall vacate the shop in dispute after 15 days of allotment and possession of an alternative shops in the newly constructed Shopping Complex.

That the other Petitioners have already entered into compromise under which they have been allotted alternative shops. The applicant has not been allotted any accommodation in lieu of the accommodation in his possession of the Applicant over the said Nala.

That the High Court has given 10 days time to the applicant to make an application for allotment upon which the M.D.A. will allot alternative accommodation and the applicant will handover the possession of the disputed area within 15 days of giving of possession of allotted area to the applicant.

That in view of the aforesaid order of the High Court, the Applicant is moving this application for the allotment of alternative shops/accommodation in lieu of the disputed accommodation over the said Nala measuring 8 ft North South x 16 ft. East West.

Therefore it is requested to allot Shop No. G-28 and G-29 proposed to be constructed which are in the back of the regular Existing undisputed Shop No. 26 (old) at Bhagat Singh Road whose new numbers are G-8 & G-9 according to the site map of M.D.A. & the dues shall be paid according to the legal procedure.

Kindly do the needful at the earliest and oblidge.

Thanking You.

Applicant

Dated:- 10th January, 2000

Jain & Company

Through

Jyoti Prasad Jain

S/o Late Sumat Prasad Jain

Bhagat Singh Road,

Muzaffarnagar (U.P.)."

The aforesaid letter, even though is not part of the pleading, yet the same has been brought before us by the contesting party himself disclosing a demand for two shops, G-8 and G-9, only.

To further understand as to the mode of allotment, Shyam Sunder Ahuja was the petitioner in Writ Petition No. 16264 of 1997 that had been filed assailing the demolition drive conducted by the Muzaffarnagar Development Authority. The agreement dated 26.06.1999 with the petitioner in relation to specific Shop No. G-8 was brought to the notice of the Court, and by the judgment dated 4th January 2000, a Division Bench disposed off the writ petition which order is extracted hereinunder:-

"Parties counsel have been heard at length. Ultimately they reached a settlement that the petitioners undertake to vacate the shops presently in their occupation and to shift the new shopping complex made by Muzaffarnagar Development Authority. Except petitioner No. 12 all other petitioners have made an agreement with the Muzaffarnagar Development Authority. The above petitioners through their counsel have undertaken to vacate the shops in question within fifteen days from the date of allotment of new shops in their favour and their taking over possession of the said shops. Petitioner No. 12 will apply within ten days for allotment of a new shop in his favour and thereafter on being allotted and being handed over possession of the same he shall also vacate the shop in question in favour of Muzaffarnagar Development Authority within 15 days.

In view of this, petition is accordingly disposed of."

The aforesaid judgment still holds the field and it has neither being modified rescinded or set aside or reviewed either by this Court or by any other higher forum. Jyoti Prasad jain was petitioner no. 12 in the said petition.

In the present writ petition, after Jyoti Prasad Jain died on 29th September 2004, the petitioner moved an application on 4th February, 2005 to implead the heirs of Jyoti Prasad Jain who are now represented by Sri Anurag Khanna, learned Senior Counsel. A counter affidavit has been filed on behalf of the Muzaffarnagar Development Authority which is of July, 2003 and in the said counter affidavit, a very peculiar plea has been taken in Paragraph No. 11 thereof, that the agreement dated 26.06.1999 entered into with the petitioner has become redundant by passage of time and subsequent events. In effect it is an assertion that the judgment of the High Court dated 4th January, 2000 and 6th April, 2000 have also lost their efficacy due to the subsequent arrangements made by the Development Authority. We will deal with the argument in the later part of the judgment but for noticing the facts suffice it to say that after filing of this counter affidavit the agreement which had been entered into with Jyoti Prasad Jain on 07.12.2000 in respect of the three shops including Shop No. G-8 came to be cancelled on 8th March, 2004. It may be noted that Writ Petition No. 10808 of 2004 was filed against the same that is stated at the Bar to have been dismissed.

Jyoti Prasad Jain instead of the aforesaid three shops was offered two alternate shops, being Shop No. B-35 and B-35-A. This was repeated by another order of the Development Authority on 15th June, 2007 by serving another cancellation order on the heirs of Jyoti Prasad Jain to the same effect.

It is in this background that the heirs of Jyoti Prasad Jain had proceeded to file a civil suit in which an order came to be passed in their favour. The Muzaffarnagar Development Authority filed an appeal against the said injunction order and in the said proceedings a compromise was entered into between the heirs of Jyoti Prasad Jain and the Muzaffarnagar Development Authority. When the Development Authority did not honour the said compromise, they also filed a contempt application in which notices were issued. In the contempt proceedings, the Muzaffarnagar Development Authority through its Vice Chairman filed an application that they were prepared to abide by the compromise already entered into for allotting Shop G-6, G-7, G-8 to the heirs of late Jyoti Prasad Jain.

It may also be noticed that against the order of the compromise in relation to the compromise dated 29th May, 2007 the present petitioner Shyam Sunder Ahuja filed Writ Petition No. 580 of 2007. However the said writ petition was dismissed observing that since Shyam Sunder Ahuja is not a party to the compromise in the aforesaid suit and appeal, therefore the same would not be binding on him, but he was given the liberty that in case, he so chooses, he can either file a suit or move an impleadment application. The judgment of the High Court dated 13.07.2007 is extracted hereinunder:-

"A suit No. 350 of 2007 has been filed by respondent no.1 against respondent Nos. 2 and 3 Vice Chairman, Muzaffarnagar Development Authority restraining them from allotting the shops in dispute to any other person. In the suit an application for temporary injunction was filed by the plaintiff respondent no.1 Shasank Jain in which respondent no.1 Shasank Jain claimed to be in possession. A temporary injunction that the shops already allotted to the plaintiff respondent be not allotted to any other person was granted by the trial court. Against that order an appeal was preferred by Muzafarnagar Development Authority. In the said appeal an order was passed on the basis of a compromise arrived at by which Muzafar Nagar Development Authority has been directed to sell shop Nos. 7-G and 8-G to the plaintiff respondent no.1 Shasank Jain. The petitioner Shyam Sunder Ahuja has filed the present writ petition against the order of the courts below.

I have heard Sri Ashok Mehta counsel for the petitioner, Sri Ravi Kiran Jain, Senior Counsel assisted by Sri Nipun Singh for respondent No.1 and S/Sri P.K. Singh and Rajesh Pandey for respondent No. 2.

Counsel for the petitioner submitted that the appellate order is in conflict with a previous order passed in writ petition No. 12347 of 2007 in which an interim order was passed on 3.4.2001 in favour of the petitioner for not allotting the shop No. 8-G. Copy of the order has been filed as Annexure-8 to the writ petition. The said interim order is to the effect that shop No. G-8 shall not be allotted, if it has not already been allotted in favour of any other person pursuant to the order dated 18.11.2000 impugned in the said writ petition. Counsel for the petitioner submits that there was no allotment in favour of the respondent till then.

Counsel for the Development Authority and counsel for the plaintiff-respondent no.1 made two submissions. Firstly that the petitioner has no right to challenge the order passed on compromise in a suit in which he is not a party. Secondly that the compromise was not in violation of the interim order passed in writ petition no. 12347 of 2007 inasmuch as the the shops in question were allotted to him even before the interim order was passed. The operative portion of the impugned order contains a recital that the shops have already been allotted to respondents. The question involves determination of facts. It is not in dispute that the petitioner is not a party in the compromise or in the suit from which the present writ petition arises. Counsel for the petitioner conceded that till date he has not applied for any impleadment. The order based on compromise is binding only on the parties to the compromise in the suit. The petitioner is neither a party to the compromise nor is he a party in the suit. If the rights of the petitioner are affected it is open to him to apply for impleadment in the suit or to file a separate suit in which the rights of the parties can be adjudicated upon. The present writ petition as such is not an appropriate remedy.

Counsel for the petitioner states that it may be clarified that the order dismissing the present writ petition may not come in his way of taking appropriate proceeding in accordance with law. It is therefore made clear that it is open to the petitioner to apply for impleadment in the suit or to file a separate suit or to take any other proceeding in accordance with law.

With the aforesaid observations, this writ petition is dismissed."

Upon the compromise having been entered into and the undertaking given, the learned Subordinate Court that was proceeding to hear the contempt proceeding passed the following order on 7th January, 2008:-

07-01-2008

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It is to be noted that the petitioner Shyam Sunder Ahuja is not a party to the aforesaid proceedings.

Another development took place, namely, during the pendency of this writ petition apart from the filing of the aforesaid suit and the compromise before the Civil Court, the heirs of Jyoti Prasad Jain also approached the Commissioner who is the Chairman of Muzaffarnagar Development Authority who also passed an order on 4th December, 2007 approving the proposal of the Vice Chairman dated 03.12.2007 withdrawing the earlier cancellation dated 15th June, 2007.

It is also worth mentioning at this stage that Jyoti Prasad Jain had filed Writ Petition No. 10808 of 2004 after the cancellation order dated 08.03.2004. It is not disputed at the Bar that the said writ petition stands dismissed.

One more development took place in between that against the order of the Commissioner approving the withdrawal of the cancellation order dated 15.06.2007, the petitioner Shyam Sunder Ahuja filed Writ Petition No. 3063 of 2008. The Division Bench did not interfere with the impugned order of the Commissioner but made an observation that in case the petitioner files a representation the authority shall decide it within six weeks. The aforesaid judgment dated 17.01.2008 is extracted hereinunder:-

"Heard learned counsel for the parties.

Petitioner in para 35 of the writ petition states that before passing the order dated 4th December, 2007 against the interest of the petitioner, he has not been given opportunity, therefore, it is prayed that this order and consequential order deserve to be set aside.

We are not inclined to interfere with the order impugned.

However, considering the facts and circumstances of the case, we direct that in case petitioner files representation within three weeks from today, the authority shall decide it within next six weeks.

With this observation, this writ petition is disposed of finally."

Thus the gamut of facts narrated above indicate that so far as the Shop No. G-6 is concerned, the same is being claimed by Sri Sanjay Kumar Goel, the heir of Smt. Sarla Devi and which shop is being claimed by the heirs of Jyoti Prasad Jain. Simultaneously, Shop No. G-8 is being claimed by Shyam Sunder Ahuja but the same shop is also being claimed by the heirs of Jyoti Prasad Jain in the background aforesaid.

We may clarify that so far as Shop No. G-3 is concerned, none of the parties including the heirs of Jyoti Prasad Jain have contested the allotment of Shop No. G-3. Similarly, Shop No. G-7 claimed by the heirs of Jyoti Prasad Jain is also now no longer in dispute, inasmuch as, no one has come forward claiming allotment of Shop No. G-7. Thus the present writ petition now stand confine to the claim of Shop No. G-3 by Rohit Lal, Shop No. G-6 by Sarla Devi which is being opposed by the heirs of late Jyoti Prasad Jain and Shop No. G-8 claimed by Shyam Sunder Ahuja which is also been opposed by heir of late Sri Jyoti Prasad Jain.

Writ Petition No. 18149 of 2008 has been filed by Shashank Jain and Rajnish Jain, the heirs of late Jyoti Prasad Jain for allotment and execution of the agreement in respect of Shop No. G-6 which is the same shop that is being claimed by Sarla Devi (since deceased) in Writ Petition No. 12337 of 2001.

Shyam Sunder Ahuja appears to have approached the Authority for a decision on his representation pursuant to the directions of the High Court dated 17th January 2008, and the same has been rejected by the Development Authority on 14th March, 2008. Aggrieved Shyam Sunder Ahuja has filed Writ Petition No. 19611 of 2008.

Thus, this is how all the five writ petitions are before us in which arguments had been advanced by the learned counsel for the respective parties.

We may at the very outset clarify that, Sri Anurag Khanna who is now designated as a Senior Advocate, had earlier put an appearance on behalf of the Development Authority in Writ Petition No. 10808 of 2000 which has already been disposed off. He has informed the Court about the said fact and the Court had called upon all the learned counsel appearing in these five cases including the counsel for the Muzaffarnagar Development Authority, if they had any objection to his appearance on behalf of the heirs of Jyoti Prasad Jain in the present cases. Learned counsel were unanimous in their response that they had no objection to his appearing on behalf of the heirs of Jyoti Prasad Jain in the present case, and we also find that there is no such legal hurdle, inasmuch as, Writ Petition No. 10808 of 2004 already stands disposed off and after being designated as a Senior Advocate, we find that there is no impediment in Sri Khanna proceeding to address the Court on behalf of the Jain brothers.

The first question that has to be determined is about the genesis of the dispute and the impact of various orders passed from time to time. This would be relevant in order to determine the dispute between Shyam Sunder Ahuja, the successor of Sarla Devi and the heirs of Jyoti Prasad Jain.

It goes without saying that all these claimants were occupants of shops as referred to hereinabove on the embankments of the drain (nala) in their respective capacities on the strength of leases which the Development Authority describes as an encroachment. Yet the Development Authority in order to settle these shop-keepers came up with the scheme of developing a commercial complex on Bhagat Singh Road in Muzaffarnagar with approximately 294 shops and proposed allotments to these shop-keepers who were approximately 30 to 35 in number. Thus the matter came to be approached with the intention of rehabilitating such shop-keepers who were to be directly affected by the demolition of the shops and removal thereof from the embankment of the drainage in order to rectify, and restore the drainage system of the city of Muzaffarnagar. It is with this end in view that the commercial complex, in which those shops were proposed, came to be offered to these shop-keepers as well, and negotiations went on. Simultaneously, the Muzaffarnagar Development Authority undertook the exercise of demolition which led to the filing of the two writ petitions in the year 1997 as referred to hereinabove. These writ petitions were disposed off on 4th January, 2000 and 6th April, 2000 respectively. We have extracted the Division Bench judgment dated 4th January 2000, and this is where the genesis of the entire claim of the parties commences. The said writ petition had been filed by 12 petitioners including, Late Jyoti Prasad Jain and Shyam Sunder Ahuja. We may put on record that late Sarla Devi and Rohit Lal were not parties to the said writ petition. The judgment dated 4th January 2000, categorically records that in view of the settlement arrived at, the Development Authority shall proceed to make allotments and it was made clear that so far as petitioner no. 12 therein, namely, Sri Jyoti Prasad Jain is concerned, he had not entered into any agreement with the Development Authority, and therefore, it shall be open to him to apply for a fresh allotment.

Therefore, Sri Rajvanshi and Sri Rakesh Pandey, learned counsel appearing for Shyam Sunder Ahuja, Sanjay Kumar Goel and Rohit Lal have urged that once the agreement dated 26th June, 1999 had been entered into and was made the basis of withdrawal of all future claims then there was no occasion for making any other arrangement on the premise that the Development Authority had any practical difficulty in executing the said agreement. They contend that the practical difficulty that was indicated was neither a force majeure or a vis major but was the continued occupancy of the land over which the shops had to be constructed by Jyoti Prasad Jain and the Lala Devi Prasad Library who were not vacating the said portion of the land. It is evident from the records that have come forth and the orders passed by the Development Authority that with the aid of the Public Administration including, the District Magistrate, Muzaffarnagar, the Lala Devi Prasad Public Library had already been shifted. However, the construction of the shops came to be delayed as the three shop-keepers who were occupying the land, including Sri Jyoti Prasad Jain had not vacated the same. It may however be noted that the two other shop-keepers, Brij Bhushan Mithal and Vinod Kumar do not appear to have put any resistance as they had already been allotted shops, and it was Jain & Company through Sri Jyoti Prasad Jain who continued to occupy his shop over the disputed land, the area whereof was claimed by to be 28' x 16'. Thus, the reason given by the Development Authority for not providing Shop No. G-8 to Shyam Sunder Ahuja was the aforesaid obstruction created by Mr. Jain. Sri Rajvanshi and Sri Pandey urged that it was not a permanent obstruction and there was already an undertaking by all shop-keepers including Mr. Jain to remove their tenements and allow the construction of the complex. In such circumstances, there was no valid reason to change the offer of Shyam Sunder Ahuja as after clearing of the obstruction, the shop could have been constructed and then possession could be given to him for which the agreement had been entered into. They therefore contend that there was no occasion to alter the agreement or cancel it which according to them was done only with a view to accommodate Jyoti Prasad Jain with three shops. It is for the said reason that the allotments were being altered and the agreement as well as the judgment of the High Court dated 4th January, 2000 was being avoided by the Muzaffarnagar Development Authority.

This action, therefore, was arbitrary and violative of Article 14 of the Constitution of India. Sri Rajvanshi in the pleadings already filed on record has appended the judgment of the Apex Court in the case of Salkia Businessmen's Association & Others Vs. Howrah Municipal Corporation & Others 2001 (6) SCC 688 to contend that once the orders had been passed by the High Court on 4th January, 2000 taking notice of and acknowledging the agreements dated 26.06.1999, then the Muzaffarnagar Development Authority could not have resiled back from the same, and passed consequential orders in favour of the Jains thereby complicating the situation. It is, therefore, submitted by Sri Rajvanshi and by Sri Pandey both that once the writ petition had been disposed off with a clear direction and observations to abide by the compromises and Jyoti Prasad Jain was to be accommodated for a fresh allotment, then in that event, there was no occasion to cancel the allotment or the agreement entered on 26th June, 1999.

Sri Anurag Khanna appearing for Shashank Jain and Rajneesh Jain, the heirs of late Sri Jyoti Prasad Jain, contends that firstly, Jyoti Prasad Jain had not entered into any agreement with the Muzaffarnagar Development Authority, and therefore, any agreement with any other person would not bind the claim of Jyoti Prasad Jain who independently had a claim for allotment of a shop facing Bhagat Singh Road where he was already occupying the old Shop No. 26. It is further submitted by Sri Khanna that Jain & Company was a shop enjoying a goodwill for the past forty years on the same place, whereas Shyam Sunder Ahuja was occupying a shop which was 200 metres away, and therefore, comparably there was no occasion for Shyam Shunder Ahuja to have staked a claim for a shop facing Bhagat Singh Road, and it is in this background, the Development Authority has committed no error in cancelling his allotment. It is further submitted that Shyam Sunder Ahuja could have filed a suit as observed in the judgment of the High Court dated 13th July, 2007 after the shops had been restored in favour of the heirs of Jyoti Prasad Jain. Secondly, even assuming for the sake of arguments that there was a compromise entered into between Shyam Sunder Ahuja and the Muzaffarnagar Development Authority and the same was made the basis of the judgment dated 4th January, 2000, the said compromise in no way affected the claim of Shop No. G-8 by Shashank Jain and Rajnish Jain, inasmuch as, the judgment dated 4th January, 2000 nowhere binds either them or the Muzaffarnagar Development Authority not to enter into any separate agreement. It is, therefore submitted that neither the compromise dated 26th June, 1999 nor the judgment dated 4th January, 2000 in any way impede the rights of the Jain brothers. It is further submitted that once this Court had refused to interfere with the order of the Commissioner dated 4th December, 2007 whereby the allotments had been restored in favour of the Jain brothers, and the writ petition was disposed off on 17th January, 2008 with liberty to make a representation, the same does not amount to reopening the claim of Shyam Sunder Ahuja for him to stake any claim with regard to the Shop No. G-8. It is, therefore, submitted that so far as the claim of Shyam Sunder Ahuja is concerned, it has not been finally put off by the Development Authority, and he has been offered an alternative Shop No. G-53 which does not cause any prejudice to his claim, and therefore there is no occasion to interfere with the rejection order dated 14th March, 2008. It is, therefore submitted that no rights accrue in favour of the Shyam Sunder Ahuja on the strength of any such transaction that had taken place in between or the judicial orders referred to hereinabove, and consequently, the claim of the Jain brothers deserve to be upheld.

In order to examine the aforesaid rival contentions, it would be appropriate to first delve into the status of the settlement dated 26th June, 1999. This is a compromise in relation to distribution of a largesse by the Muzaffarnagar Development Authority which is a local authority and an instrumentality of the State Government. It is correct that such distribution has to be done by some reasonable procedure prescribed in law but in the instant case, this is a matter relating to rehabilitation of some shop-keepers who were occupying the land adjoining a drainage and whose shops were required to be removed and demolished in order to rehabilitate them as they were already in business for several decades. The Muzaffarnagar Development Authority benevolently made an offer to such shop-keepers in a newly constructed complex. It is during the action taken by the Development Authority for demolition that the two writ petitions referred to above were filed, and it is during the pendency thereof that the agreements were entered into referred to hereinabove. There is no doubt that Shyam Sunder Ahuja had entered into an agreement on 26th June 1999, there is also no doubt that late Sarla Devi and Rohit Lal had also entered into agreement but they were not parties to the said writ petition in which the judgment was delivered on 4th January, 2000. It is true that Jyoti Prasad Jain did not enter into any compromise but Jyoti Prasad Jain was petitioner no. 12 in the writ petition that was disposed off on 4th January, 2000. Jyoti Prasad Jain, therefore, in our opinion did have a claim of allotment and for which he was given the opportunity to move an application of fresh allotment. It is here, that we may refer to the letter of Sri Jyoti Prasad Jain dated 10th January, 2000 which has been extracted hereinabove. A perusal of the said application moved by Jyoti Prasad Jain, clearly demonstrates that he had made a request for allotment of Shop No. G-8 and G-9 and not for three shops. Consequently, the original request of Jyoti Prasad Jain was confined only to two shops i.e. G-8 and G-9. It was not for G-6, G-7 and G-8. The said letter also acknowledges the fact that Jyoti Prasad Jain was petitioner no. 12 in the writ petition that was disposed off on 4th January, 2000. The offer, therefore, made by Jyoti Prasad Jain was clearly upon the disposal of the writ petition and taking support thereof. It was, therefore not an application either independent of the order dated 4th January, 2000 or otherwise even though Jyoti Prasad Jain had not entered into any agreement. Sri Khanna learned counsel insisted that if there was no agreement then the aforesaid judgment cannot have any binding effect on Jyoti Prasad Jain and his successors. We are unable to agree with this proposition for the simple reason that the writ petition was clearly disposed off with the participation of Sri Jyoti Prasad Jain who however had clearly indicated that he would be moving a separate application for allotment in terms of the said judgment dated 4th January, 2000. Consequently Jyoti Prasad Jain was clearly aware of the compromise that had been entered into on dated 26th June, 1999 in respect of the Shop No. G-6, G-7 and G-8. Consequently Jyoti Prasad Jain taking benefit of the said order dated 4th January 2000 made an application for allotment of one of the very same shops namely G-8, and also G-9 but not G-6 and G-7.

We may, however, put on record that Jyoti Prasad Jain was entitled for such an allotment, inasmuch as, it is undisputed between the parties that Jain & Company through Jyoti Prasad Jain was running a shop by 28' x 16' on the same place. His entitlement for such consideration facing Bhagat Singh Road, therefore, was a genuine claim based on the existence of a previous shop.

However when the allotment did proceed, we find that Jyoti Prasad Jain on the strength of the said application proceeded to negotiate a separate settlement with the Muzaffarnagar Development Authority without vacating the disputed land, and ultimately continued to occupy it and also by his heirs till 2008. Thus for full eight years, the shops could not be constructed and offered for allotment due to this occupation. However, finally it appears that when the said area was vacated the shops have been constructed, the possession whereof is now being claimed by the respective parties in the light of their aforesaid claims referred to hereinabove.

Coming to the status of the order dated 4th January 2000, we may put on record that the said order so far as the Development Authority is concerned, is clearly binding on it. The Development Authority could not have proceeded to vary or alter the status of the said order by entering into any separate agreements or any compromise before the civil court as appears to have been done subsequently creating all the complications relating to the nature of the allotment, their cancellations and restorations which are subject matter of these writ petitions. The reason for this is not only the judgment relied upon by Sri Rajvanshi in the case of Salkia Businessmen's Association (supra), which in our opinion squarely applies on the facts of the present case, but also because of the fact that the Development Authority has entered into a compromise/settlement and had acknowledged it before the High Court which stands recorded in the judgment dated 4th January, 2000. As to what would be the impact of such a compromise and whether it can be acknowledged in the proceedings in a writ petition or not has been dealt with by a Division Bench of this Court in the case of Nand Kishore Gaur Vs. Regional Deputy Director of Education, Meerut ADJ 2017 (11) 606. In that case a previous writ petition between the parties came to be dismissed by virtue of a settlement arrived at outside the Court. The said fact was noted by the Division Bench in paragraph no. 16 of the judgment quoting the order passed, namely that since the settlement has been arrived at outside Court, the matter had become infructuous, and the petition is accordingly, dismissed. The Division Bench was faced with the situation of interpreting the impact of the settlement on the basis whereof, the writ petition had been dismissed and while discussing the same, the Division Bench traced the theory and practice of compromise in a writ petition. In paragraph no. 72, the Division Bench observed as follows:-

"72. It needs to be clarified that a compromise can be arrived at even in a writ petition. This principle has been held to be applicable in the writ jurisdiction. Reference be had to the decision in the case of Commissioner of Endowments and others v. Vittal Rao and others, MANU/SC/1003/2004 : 2005(4)SCC, 120 (Paragraph Nos. 16 to 20). This has been also explained by our Court in the case of Sriram v. Girdhari Lal and others, 1982 AWC, 865 (Paragraph Nos. 6, 7 and 14)."

While dealing with as to what is the impact of a compromise if entered into the Division Bench observed as follows in paragraph nos. 62 to 65 which is extracted hereinunder:-

"62. It would therefore be apt to begin with the proposition that a settlement can be arrived at even without a dispute or after a dispute has arisen. The settlement can be private and also with the aid of external agencies including a Court. In the instant case the settlement is an outcome of a dispute already raised that had taken the shape of a writ petition. During the course of the pendency of the writ petition, the application for disposing of the writ petition accompanied by the terms of settlement was filed, and the writ petition was dismissed as infructuous while noticing the said fact. This was, therefore, a settlement arrived at in a Court proceeding but the compromise was not made with the State that was also a respondent in the writ petition and secondly, it was not with the aid of the Court but an out of Court settlement on the strength whereof the cause was treated as infructuous.

63. The passing of the order of the Court, therefore, brought to an end the litigation that was being pursued by the parties on acknowledging reciprocal terms whereby certain rights were given up in lieu of substituted rights. To understand this in the light of the claim and in the light of the word "abandoned" used in paragraph 4 of the compromise affidavit, it is necessary to observe that the aforesaid term "abandonment" as a term of compromise in the present case has to be understood not as a unilateral surrender or complete renunciation of rights but as an agreement by way of commitments that are laced with yielding opposite claims. It is a mutual concession and an adjustment amicably arrived at in order to compose differences by waiving certain rights and substituting the same by a new promise. The outcome of such a settlement is to give up all future litigation for the same cause of action, and to the extent of surrender made, no legal retention of rights in respect of such surrender stands acknowledged. The claims admitted as per the paragraphs of the affidavit in the present case amount to avoiding a suit and end litigation on the strength whereof new rights flow. It precludes the parties from bringing any fresh cause of action on the same grounds in future but at the same time it does not amount to an admission of either the validity or invalidity of the orders that were under challenge giving rise to the cause of action.

64. A compromise is a bilateral surrender giving away partly something to the other side on commonly accepted terms. The word compromise in Latin is spelt as compromittere (comp=mutually; promittere=promise). According to the definition of the word compromise in Black's Law Dictionary (8th South Asian Edition), it is an agreement between two or more persons to settle matters in dispute between them either on a real or supposed claim in which each party surrenders something in concession to the other. It is a middle course.

65. It is a pledge whereby parties amicably divest themselves to have the best of bargain. A mutual waiver with adjustments that seeks to enforce a substituted position agreed to by both parties is the object of a compromise. The dispute is harmonized in a legally designed way to draw the curtain for all times in future. Reference be also had to paragraph No. 27 of the decision in the case of Bimal Kumar and another v. Shakuntala Debi and others, reported in 2012 (3) SCC, 548 extracted hereinunder:

"It is to be borne in mind that the term 'compromise' essentially means settlement of differences by mutual consent. In such process, the adversarial claims come to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretised. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability."

In the present case, what we find is that after the compromise agreement was brought on record, the same was acknowledged, and then the judgment was delivered disposing off the writ petition on 4th January, 2000 virtually to execute the terms and conditions of the said compromise. It is correct on the part of Sri Khanna to contend that Sri Jyoti Prasad Jain had not entered into any compromise, but at the same time Sri Jyoti Prasad Jain was a party to the said writ petition, and he was fully aware of the aforesaid judgment. Sri Jyoti Prasad Jain did not make any effort to dispute the said judgment but he contended before the Development Authority that since he had been given the opportunity to apply a fresh, he staked his claim through the application dated 10th January, 2000 for Shop No. G-8 and G-9 only. The claim of Jyoti Prasad Jain, therefore, was not for Shop Nos. G-6 and G-7, and his claim emanated with the aid of the judgment dated 4th January, 2000. In our considered opinion, Jyoti Prasad Jain, was therefore, at the same time taking benefit of the judgment dated 4th January, 2000 without questioning its content but at the same time was insisting upon the allotment of the very same shop, namely, Shop No. G-8 which already stood allotted under the agreement with Sri Shyam Sunder Ahuja. This was clear acquiescence on the part of Mr. Jain and therefore the principle of estopple by conduct would squarely apply.

It is, therefore, evident that the impact of the judgment dated 4th January, 2000 was sought to be diluted by Jyoti Prasad Jain by insisting upon allotment of Shop No. G-8 along with Shop No. G-9 but he succeeded in entering into a separate agreement on 7th December, 2000 for three shops, G-6, G-7 and G-8.

No effort was made on his behalf to seek any clarification in the same case in which the judgment dated 4th January, 2000 was delivered about there being any clash of interest relating to Shop No. G-8. In our opinion, if late Jyoti Prasad Jain was insisting upon any specific claim, he ought to have got the same clarified either through any affidavit or specific plea before the High Court itself. The reason is that the judgment of the High Court dated 4th January, 2000 emanated on the agreements already entered into including the agreement with Shyam Sunder Ahuja in respect of specific Shop No. G-8. Consequently, in our opinion, the claim of Jyoti Prasad Jain in relation to Shop No. G-8 stood foreclosed upon the judgment dated 4th January, 2000 as the Muzaffar Nagar Development Authority could not alter the allotment already agreed upon and offered to Shyam Sunder Ahuja. Similarly he could not insist for allotment of G-6 as he had not demanded the same which stood settled with Smt. Sarla Devi.

It is not in dispute that Shop No. G-7 that was being claimed by another person namely Samandar Lal Jain, had been given an alternative offer, and accordingly the said shop namely G-7 could have been settled with Jyoti Prasad Jain. To that extent the settlement of Shop No. G-7 with Jyoti Prasad Jain vide order dated 07.12.2000 does not affect the rights of the any other person, and rather Shop No. G-7 was rightly allotted in favour of Jyoti Prasad Jain.

We have perused the various orders and what we find is that after 4th January, 2000, the orders passed from time to time, and the agreements entered into thereafter including the agreement dated 07.12.2000 as well as the compromise before the civil court and the allotment of Shop No. G-6 and G-8 do not appear to be in conformity with the orders of the High Court dated 04th January, 2000. Not only this, what we find is that when Shyam Sunder Ahuja filed Writ Petition No. 3063 of 2008 assailing the order dated 04th December, 2007, the Division Bench in it's order dated 17.01.2008 nowhere took notice or even considered the impact of the judgment dated 04th January, 2000 that had become final. In our opinion, non interference with the order dated 4th December, 2007 could not in any way take away the impact of the final judgment dated 4th January, 2000 and therefore, even if the Commissioner had passed an order dated 4th December, 2000 and the same was not interfered with, yet the Division Bench observed that the petitioner could move a representation in this regard. The same position is of the civil court compromise and the order dated 07.01.2008 that are in teeth of the final judgment of the High Court dated 04.01.2000 that binds both, the authority as well as Mr. Jain.

In our opinion, if this opportunity of moving a representation was offered by the Division Bench then in that event, the element of finality on the basis of the order of the Commissioner dated 04.12.2007 and the judgment dated 17.01.2008 in respect of the said dispute particularly with regard to the Shop No. G-8 cannot be attached. The claim of Shyam Sunder Ahuja cannot be said to have become extinct as he was given an opportunity of filing a representation without interfering with the order of the Commissioner and that of the Vice Chairman. In effect all such efforts that were being made were subject to the outcome of the present writ petitions that were still pending before the High Court namely that of Shyam Sunder Ahuja in Writ Petition No. 12347 of 2001, where the allotment dated 07th December, 2000 was under challenged. In such circumstances, to treat the judgment dated 17.01.2008 or the orders of the Civil Court to have eclipsed the rights of Shyam Sunder Ahuja would not be a correct proposition.

Apart from this, any further proceedings that were undertaken by the heirs of Jyoti Prasad Jain by filing a suit and then entering into a compromise in appeal as referred to hereinabove, and getting it enforced through contempt proceedings before the Civil Court, were also subject to the order dated 4th January, 2000 as well as the outcome of Writ Petition No. 12347 of 2001. The reason is that if the basic order of allotment dated 7th December, 2000 is unable to stand the scrutiny of law, then any subsequent affirmation of such allotment either by the Development Authority or by the subordinate judiciary cannot in any way take away the right of Shyam Sunder Ahuja who was not party either to the civil suit or to the appeal that had been filed by the Jain brothers for the confirmation of their allotments including Shop No. G-8.

We are fortified in our view, not only because of the pendency of Writ Petition No. 12337 of 2001 and the order dated 4th January, 2000, but also because of the observations made by the learned Single Judge while dismissing the writ petition of Shyam Sunder Ahuja on 13th July, 2007 which has been extracted hereinabove. We may reiterate that the learned Single Judge made it categorically clear that Shyam Sunder Ahuja was not party to any of the proceedings and therefore any compromise between the Development Authority and the Jain brothers was not binding on him.

As a matter of fact, all these complications have arisen because of the haywire activity of the Muzaffar Nagar Development Authority by altering its position and allocating and reallocating shops in spite of having arrived at a final agreement in 1999 itself. The stand taken by the Development Authority that there were practical difficulties and therefore, it had to alter its position is unacceptable, inasmuch as, there was no impediment in getting the old shops vacated and then raising the constructions which has been done in the year 2008. The only obstruction was its occupancy by Jyoti Prasad Jain and the library which has already been shifted.

Thus the attitude of the Muzaffar Nagar Development Authority in attempting to continue accommodating Jyoti Prasad Jain and his heirs in three shops as per their choice was no practical difficulty, but it was rather a benevolent and generous approach to facilitate the occupancy of the Jains that was a cover for the alleged practical difficulty. This was not bonafide on the part of the Muzaffar Nagar Development Authority or the Jains who obstructed the construction for nine years after the agreement dated 26.06.1999 and the order of the High Court dated 04.01.2000 by resorting to orders and compromises contrary to the letter and intent to the final judgment dated 04.01.2000. Late Jyoti Prasad Jain had also to vacate the space as per the order of the High Court to carry out the removal and demolition of old shop no. 26 for raising of the new shops in the complex but in spite of this Jyoti Prasad Jain insisted on a particular allotment. It deserves reiteration that Jyoti Prasad Jain in his application dated 10.01.2000 claimed allotment of two shops G-8 and G-9. There was no claim for G-6 and G-7. Yet by prolonging the allotments, that was an outcome of the initial order dated 17.11.2000, Jyoti Prasad Jain succeeded in bargaining three shops namely G-6, G-7 and G-8, virtually compelling the Muzaffar Nagar Development Authority to give in exchange three shops, instead of two as originally claimed, in order to remove the obstructions for raising of the complex. This entire protracted bargaining process was the cause which was a created situation and not a natural or practical difficulty. It was not a situation of either force majeure or vis major that prevented the raising of construction. There was no legal impediment after the judgment dated 04.01.2000. The agreement dated 26.06.1999 could not be frustrated as it stood protected under the judgment of the High Court dated 04.01.2000. The stand of the Muzaffar Nagar Development Authority was therefore a pretext that stands unveiled with the unmasking of the facts that have emerged through this litigation.

The claim of a proportionate allotment of shops of the same area as per the original occupancy by Jyoti Prasad Jain also was a move that could not be pressed as a matter of crystallized rights. There was only one shop of 28' x 16' in the occupancy of Jain & Company. The other shopkeepers might have smaller or bigger shops but we do not find any plea being raised by Sri Jain of such proportionate allotment to others. No such material has been pleaded that may give rise to an element of discrimination. Even otherwise the scheme is one of rehabilitation and accommodation of similarly situate shopkeepers. Any one of them cannot compel the Muzaffar Nagar Development Authority to construct a shop of a size of their particular choice or demand. Late Mr. Jain had one shop, and he claimed allotment of two and then succeeded in getting three which cannot be an equitable approach where other shopkeepers are to be accommodated.

We are also conscious of the fact that this a matter relating to distribution of State largesse. The parties claiming allotment are fortunate that on being uprooted they are being suitably allotted a space for rehabilitation and they have not been subjected to an open market competition which is the usual mode of settlement of public property. However these shopkeepers form a different category of those who have been running their business and earning their livelihood for almost two generations. Thus a relaxed offer to them in the complex is the best bargain for them where an insistence of a particular choice cannot be claimed as a right. As a matter of fact if we accept the argument of Sri Khanna on behalf of the Jains that a suit ought to be filed for enforcing an agreement, then in the given circumstances, the Jains also stand on the same footing. However, a compromise by them in a civil suit before the court below to which the other petitioners are not parties cannot be enforced de hors the judgment dated 04.01.2000 to which Jyoti Prasad Jain was also a consenting party. The Jains do not therefore get any enhanced rights more than that which was left open under the judgment dated 04.01.2000 that allowed Jyoti Prasad Jain to apply for allotment of 'a' shop, and not three shops, excluding the shops that had been settled under the agreement dated 26.06.1999. The subsequent transactions are therefore contrary to the said intent and purpose of the judgment dated 04.01.2000 that does not give any extended independent rights to the Jains.

It was therefore neither an impossible situation nor a unalterable situation so as to give an excuse to the Development Authority to alter the agreements resulting in all these complications. We therefore place on record our anguish over the activity of the Development Authority in generating litigation and thereby compelling parties to fight out their cause inter-se whereas the Development Authority appears to be a creator of this trouble.

We are also unable to appreciate the stand taken by the Development Authority in the counter affidavit filed in Writ Petition No. 12347 of 2001 that the compromise of 1999 and the judgment dated 04th January, 2000 had become redundant due to passage of time. We fail to understand as to how the judgment of the High Court dated 04.01.2000 or 06.04.2000 merely because of passage of time would loose its efficacy and binding effect. In our considered opinion such an avernment in the counter affidavit is contemptuous and deliberately ordained to avoid the judgment of the High Court dated 04th January, 2000. In effect neither the Development Authority nor Jyoti Prasad Jain could have avoided the effect and impact of the judgment dated 4th January, 2000 by adopting such methods as has been done later on whereby multiple orders were issued from time to time in trying to dislodge the settlement which stood finalized with the judgment dated 4th January, 2000.

We may usefully extract paragraph no.8 of the judgment in the case of Salkia Businessmen's Association (supra) to reaffirm our observations. The paragraph no.8 is extracted hereinuder:-

"8 . We have carefully considered the submissions of the learned senior counsel on either side. The learned Single Judge as well as the Division Bench of the High Court have not only over simplified the matter but seem to have gone on an errand, carried away by some need to balance hypothetical public interest, when the real and only question to be considered was as to whether the respondent-authorities are bound by the orders passed by the court on the basis of the compromise memorandum, and whether the proposed move on their part did not constitute flagrant violation of the orders of court - very much binding on both parties. The High Court failed to do justice to its own orders. If courts are not to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods of their own to short circuit and give a go-bye to the obligations and liabilities incurred by them under orders of the court - the rule of law will certainly become a casualty in the process - a costly consequence to be jealously averted by all and at any rate by the highest Courts in States in the country. It does not, in our view, require any extraordinary exercise to hold that the memorandum and terms of the compromise in this case became part of the orders of the High Court itself when the earlier writ petition was finally disposed of on 13.2.1991 in the terms noticed supra notwithstanding that there was no verbatim reproduction of the same in the order. The orders passed in this regard admits of no doubt or give any scope for controversy. hile so, it is beyond ones comprehension as to how it could have been viewed as a matter of mere contract between parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. As long as the earlier order dated 13.2.91 stood, it was not permissible to go behind the same to ascertain the substance of it or nature of compliance when the manner, mode and place of compliance had already been stipulated with meticulous care and detail in the order itself. The said decision was also not made to depend upon any contingencies beyond the control of parties in the earlier proceedings."

In the circumstances aforesaid, the contention raised that there were impediments that did not allow the execution of the judgment dated 04th January, 2000, and the compromise dated 26.02.1999 is unacceptable, not only on the ground of estoppel and conduct of the parties but also on account the legal impact which the said judgment continues to wield even today in view of the law that has been discussed by us hereinabove. The bilateral agreement between Muzaffar Nagar Development Authority and the petitioner Shyam Sunder Ahuja was specifically witnessed by late Jyoti Prasad Jain in the proceedings of the writ petition, in which the judgment dated 04th January, 2000 was delivered.

In the circumstances, none of these parties could have avoided the said judgment and thereby altered the status of allotment.

At the same time, what we find is that the claim of Shashank Jain and Rajneesh Jain sons of late Jyoti Prasad Jain are also founded on the same basis as that of the other shopkeepers with a slight edge of advantage, namely that they were already having a shop facing Bhagat Singh Road. In such circumstances, the claim of Shashank Jain and Rajneesh Jain has to be accepted to the extent of the shops available.

As noted above, what we find is that these two brothers are claiming the rights through Jyoti Prasad Jain who had only staked a claim for Shop Nos. G-8 and G-9 in his initial application. Subsequently, it was Shop Nos. G-6, G-7 and G-8 that were allotted to him. This interse arrangement can not therefore defeat the rights of those who had already entered into an agreement. It is here we put on record that late Smt. Sarla Devi had also independently entered into an agreement on 26th June, 1999 in respect of Shop No. G-6. The alteration of the said allotment was therefore absolutely ex-parte to her and without there being any demand of Jyoti Prasad Jain in his original application dated 10th January, 2000. Such an arrangement which was later on entered into therefore could not have taken away the rights which that had accrued to late Sarla Devi under the agreement dated 26th June, 1999 in respect of Shop No. G-6.

Having held so, we find that so far as Shop No. G-3 is concerned, it is correct that the father and the son Rohit Lal and Raj Kumar had been allotted shops, but this is also a fact that they were earlier in occupation of independent shops against which their separate individuals claims have been considered. Since there is no claim other than that of Rohit Lal for Shop No. G-3, we find no valid reason for the Development Authority to have cancelled the same or altered the same.

Thus, the writ petitions, therefore deserve to be disposed off with clear directions to accommodate all the shopkeepers in the light of the observations made hereinabove.

Consequently, we are of the opinion that the allotment to Jyoti Prasad Jain of three shops namely G-6, G-7 and G-8 was disproportionate and not in accordance with the finality of the proceedings that had been arrived at on 04th January, 2000 before the High Court. Jyoti Prasad Jain could have been allotted one or more shop subject to availability thereof but without disturbing the other allottees including Smt. Sarla Devi and Shyam Sunder Ahuja and Rohit Lal.

The allotment therefore of Shop No. G-6 to Smt. Sarla Devi (deceased now substituted by Sanjay Kumar Goel) is upheld. Similarly, the allotment to Shyam Sunder Ahuja of Shop No. G-8 is upheld. The allotment of Shop No. G-7 being undisturbed shall be retained by Rajneesh Jain and Shashank Jain. Shop No. G-3 which remains uncontested shall continue to be treated to have been allotted to Rohit Lal for the reasons already recorded hereinabove.

At the same time, we may also record, that it is correct that late Jyoti Prasad Jain had a shop facing Bhagat Singh Road continuing for decades. In the aforesaid circumstances, in the event, the Muzaffar Nagar Development Authority is able to provide a separate shop either on the first floor or even on the ground floor then it shall consider allotting another shop to Rajneesh Jain and Shashank Jain in the said complex provided it is vacant and is available. The observations made for allotment of another shop to the Jain brothers is on the peculiar facts and circumstances of this case and shall not be treated to be a precedent.

In view of the findings recorded hereinabove and the reasons in support thereof Writ Petition Nos. 51594 of 2000, 12337 of 2001, 12347 of 2001 and 19611 of 2008 deserve to be allowed in the aforesaid terms. Writ Petition No. 18149 of 2008, therefore, deserves to be dismissed, and is accordingly dismissed. We, accordingly, quash the order dated 18.11.2000, the agreement in favour of Jyoti Prasad Jain (since deceased and now represented through Shashank and Rajinish Jain) dated 07.12.2000 would survive only for Shop No. G-7 in their favour, the orders dated 3rd December, 2007 and 4th December, 2007 of the Vice Chairman and Chairman, respectively of Muzaffarnagar Development Authority are also quashed. The cancellation orders dated 15th June, 2007 and 8th March, 2004 lose their efficacy, as we have upheld the allotment of Shop No. G-7 to the Jain brothers. The orders of the Civil Court and the compromise entered therein between the Jain brothers and the Muzaffarnagar Development Authority and any orders passed in this regard would also be ineffective subject to what has been stated above.

All the allotments therefore now stand worked out as per the directions herein and the entire dispute would now stand foreclosed in terms of this judgment.

The Muzaffar Nagar Development Authority shall execute this judgment forthwith by handing over possession of Shop No. G-3 to Rohit Lal, Shop No. G-6 to Sri Sanjay Kumar Goel the heir of Smt. Sarla Devi, Shop No. G-7 to Rajneesh Jain and Shashank Jain heirs of late Jyoti Prasad Jain and Shop No. G-8 to Shyam Sunder Ahuja.

With the aforesaid directions, all the writ petitions except Writ Petition No. 18149 of 2008 stand allowed. Any orders passed contradicting this arrangement shall stand annulled.

The entire exercise shall be concluded within three weeks' from today.

Any amount deposited by any party in terms of any agreement shall be accordingly adjusted viz-a-viz the allotments which have been finalized in terms of this judgment. In case there is any excess amount, the same shall be refunded to the party concerned.

Order Date :- 3.5.2018

S.Chaurasia/M. Arif