Allahabad High Court
Dhani Ram Memorial Shikshan Sewa ... vs State Of U.P. & Others on 1 March, 2012
Bench: Ashok Bhushan, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 24.1.2012 Delivered on 1.3. 2012 Case :- WRIT - C No. - 948 of 2010 Petitioner :- Dhani Ram Memorial Shikshan Sewa Sansthan & Ors. Respondent :- State Of U.P. & Others Petitioner Counsel :- Ram Krishna Yadav,A.K.Yadav,Bhola Nath Yadav,Harish Kr. Yadav Respondent Counsel :- C.S.C.,M.C. Tripathi,Ramesh Upadhya.,Vivek Varma Connected with Case :- WRIT - C No. - 65656 of 2008 Petitioner :- Dhani Ram Memorial Shikshan Sewa Sansthan And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- Anil Kumar Singh Respondent Counsel :- C.S.C.,N. Misra Hon'ble Ashok Bhushan,J.
Hon'ble Mrs. Sunita Agarwal,J.
(Delivered by Hon. Mrs. Sunita Agarwal, J.) Heard Sri C.B. Yadav, learned Senior Advocate assisted by Sri Bhola Nath Yadav, learned counsel for the petitioners and Sri M.C. Tripathi, learned counsel for the respondents.
The above two writ petitions raise the same issue and have been heard and are being decided together by a common judgment.
The case of the petitioners is that petitioner no. 1 which is a registered society under the provisions of Societies Registration Act had applied for allotment of land bearing plot no. S-2, area 4579.85 Sq. Meter in Ratanpur Extension Scheme vide application dated 17.8.2006 in pursuance of advertisement dated 26.7.2006 issued by the respondent Kanpur Development Authority in the newspaper. The concessional rate as applicable at the relevant point of time was Rs.1032/- per sq. meter for the educational institution. A sum of Rs.1,50,000/- was deposited through the bankers cheque dated 14.8.2006 alongwith the relevant papers.
The respondent Development Authority instead of allotting the plot to the petitioner institution readvertised it by the advertisement dated 7.10.2007 which was challenged by way of writ petition no. 15585 of 2008. Again the same plot was advertised vide advertisement dated 16.11.2008 which was challenged by means of another writ petition no. 65656 of 2008 wherein an interim mandamus dated 19.12.2008 was issued to the effect that no third party interest shall be created. Despite the said direction, the respondent authority again invited applications for allotment of plot in question vide advertisement dated 6.2.2009 and 25.5.2009. Both the advertisement are under challenge in writ petition no. 948 of 2010.
In the meantime, as soon as the advertisement dated 6.2.2009 and 25.5.2009 were issued by the Development Authority a Contempt Application no. 2198 of 2009 (O.P. Katiyar, Secretary, Dhani Ram Memorial Shikshan Sewa Sansthan vs. Ram Swaroop, Vice-Chairman, Kanpur Development Authority & another) was filed by the petitioners. In the said Contempt Application order dated 3.7.2009 was passed whereby the notices were issued to both the opposite parties to file reply within three weeks. The order dated 3.7.2009 is quoted below:
"It is stated by Sri Anil Kumar Singh, learned counsel for the applicant that the applicant had applied for allotment of plot no. S-2 under the Scheme Ratanpur Awasiya Yojna in pursuance of advertisement issued by the Kanpur Development Authority. The applicant deposited Rs.1,50,000/-, but the authority again issued an advertisement inviting applications. The applicant filed a Writ Petition No. 65656 of 2008 (Dhani Ram Memorial Shikshan Sewa Sansthan and O.P. Katiyar Vs. State of U.P. & two others ) wherein by an interim order dated 19.12.2008 the Court directed that no third party's interest will be created. According to learned counsel a certified copy of the order was served on both the opposite parties on 19.1.2009. However on 6.2.2009 and 20.5.2009 they have again published an advertisement in the newspaper to allot the very same plot to other persons. As such the opposite parties by issuing the advertisement have disobeyed the interim order passed by this Court.
In view of the aforesaid circumstances, issue notice to the opposite parties no. 1 & 2 . Opposite parties no. 1 and 2 may file reply to this contempt petition within three weeks of receipt of notice."
After receipt of notices of the Contempt Application a letter dated 19.8.2009 issued by the Development Authority was received by the petitioners and by means of said letter for the first time the allotment order was issued in favour of the petitioners. The said allotment order was issued asking to deposit the allotment money at the rate of Rs.2288/- per sq. m. and it was stated that total amount of land after adjustment of the amount already deposited shall be payable in five equal instalments within a period of five years.
The case of the petitioners is that the respondent Development Authority is not entitled to increase the rate of the plot allotted in favour of the petitioners. A writ of certiorari has been sought quashing the order dated 19.8.2009 issued by the respondent no. 3 to the extent of excess rate of Rs.2288/- per sq. m. in place of Rs.1032/- per sq. m. of the plot in question.
The Contempt Application filed by the petitioners was dismissed on 4.9.2009 in view of the fact that the allotment order was passed by the Development Authority. The order dated 4.9.2009 passed in the Contempt Application is quoted below.
Learned counsel for the applicant has pointed out that the respondents have already complied with the order passed by this Court. Therefore, there appears no justification to proceed further with the contempt proceeding. Accordingly the same is hereby dropped. Contempt application is dismissed.
Notices issued to the opposite parties are discharged.
Learned counsel for the petitioners submits that petitioners having applied for allotment as early as 17.8.2006 alongwith the bankers cheque of Rs.1,50,000/- and all the papers relevant for allotment, the Development Authority acted illegally in readvertising the plot in question again and again as a result of which the petitioners had to rush to this Hon'ble Court by filing writ petitions from time to time. No allotment order whatsoever has been issued prior to 19.8.2009 and as such the demand raised by the respondent Development Authority of Rs.2288/- per sq. m. rate is not permissible in the eye of law. In any case, the petitioners cannot be faulted and there was no delay on the part of the petitioners in pursuing their case for allotment. The delay being on the part of the Development Authority, it cannot be allowed to take benefit of its own wrong.
While refuting the submissions of the learned counsel for the petitioners, Sri M.C. Tripathi, learned counsel for the respondents no. 2 & 3 submits that an application dated 17.8.2006 for allotment of the plot in question was moved by the petitioners just one day prior to the cut of date in the advertisement dated 26.7.2006. In the application moved by the petitioners in column no. 12 " details with regard to availability of fund etc. with the institution (for running schools)" only mention was made "nku ,ao 'kqYd vkfn". No certificate giving details of the income of the institution was enclosed alongwith the application form. As a result of which, a letter dated 29.3.2007 was issued to the petitioners asking them to supply all the details alongwith the certificates within a period of seven days. It was categorically informed that the meeting of High Powered Committee for allotment of land could not be convened for the reasons of incomplete information provided by the petitioners. The petitioners were further informed that they may supply all the documents so that the meeting may be convened for consideration of allotment. A copy of the letter dated 29.3.2007 has been filed as Annexure 3 to the counter affidavit and finds place at page 21.
Learned counsel for the Kanpur Development Authority further submits that the petitioners had deposited only token amount of Rs.1,50,000/- in the year 2006 claiming the property worth more than crore. The allotment to the petitioners was to be done by providing subsidy but the petitioners had failed to submit their credentials regarding their financial status. When the petitioners did not respond in pursuance of the letter dated 29.3.2007 and kept the matter pending, the Authority was constrained to issue fresh advertisement for allotment of the plot in question.
In the writ petition no. 15585 of 2008, which was filed challenging the advertisement dated 7.10.2007 no order was passed by this Hon'ble Court. When the case came up before the Court on 25.3.2008 for admission, learned counsel for the petitioners was asked to explain the latches. Thereafter, he did not pursue the matter and the writ petition was dismissed for default vide order dated 26.11.2010. No restoration application whatsoever has been filed by the petitioners for recall of the order and as such the writ petition no. 15585 of 2008 does not survive.
Learned counsel for Kanpur Development Authority further submits that writ petition no. 65656 of 2008 challenging the subsequent advertisement dated 16.11.2008 was filed purely on distorted facts in order to compel Kanpur Development Authority to allot the plot in favour of the petitioners at the subsidized rate. The petitioners themselves were at fault and did not submit complete information, on account of which the meeting of High Powered Committee could not be convened for consideration of their case for allotment. Further, the Contempt Application was filed in order to pressurize the Kanpur Development Authority and immediately after notice of Contempt Petition was received by the Secretary, Kanpur Development Authority, order dated 19.8.2009 was passed allotting the plot in question at the concessional rate. There was no delay or reluctance on the part of the Development Authority in allotment of the plot in question in favour of the petitioner institution. The delay is totally attributable to the petitioner institution and the rate of Rs.2288/- per sq. m. has been rightly asked as the allotment order was issued in the year 2009.
In any case, the rate of Rs.1032/- per sq. m. as applicable in the year 2006 cannot be made applicable in the year 2009. The cost of the land is more than Rs.2 crore and the petitioners by instituting petitions one after the other succeeded in their effort to scuttle the advertisement and eventually succeeded in getting the allotment order in favour of the petitioner institution. The nominal amount of Rs.1,50,000/- as registration amount does not confer any right for allotment in favour of the petitioner institution. In any view of the matter, the Development Authority cannot be faulted in readvertising the plots in question and finally asking for Rs.2288/- per sq. m. rate which is less than the scheduled rate. The advertisement dated 26.7.2006 itself provides that the scheduled rate at the time of allotment shall be applicable.
Reliance has been placed upon clause 4 of the advertisement dated 26.7.2006 which has been annexed as Annexure 1 to the counter affidavit.
The petitioners never challenged the condition of Clause 4 of the advertisement dated 26.7.2006, thus they cannot be allowed to challenge the order dated 19.8.2009 whereby the allotment has been made by providing 60% rebate to the scheduled rate at the time of allotment of the plot strictly in accordance with Clause 4 of the said advertisement.
We have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioners vehemently argued that the petitioners are not liable to make payment as per rate given in the letter of allotment dated 19.8.2009 rather they are liable to make payment only at the rate of Rs.1032 per sq. m. prevailing at the time of advertisement dated 26.7.2006. He further argued that the allotment in favour of the petitioners having been made in pursuance of advertisement issued in 2006, the rate prevailing in the year 2009 cannot be made applicable by the respondent no. 4. Further submission is that the Authority is responsible for the delay in making allotment of the plot in question and having failed to make the allotment within a reasonable time, hence allottee petitioners cannot be compelled to pay the enhanced rate.
Reliance has been placed upon the judgment of the Apex Court in Kanpur Development Authority vs. Smt. Sheela Devi & others reported in 2004(1) AWC 739 (SC). Paragraphs 14, 15 & 16 of the above judgment has been relied upon in submitting that the delay in allotting the plot to the petitioners was caused due to lapse on the part of the Kanpur Development Authority and there is no justifiable reason for escalation of the price as such. The Kanpur Development Authority should not be allowed to determine the rate applicable in the year 2009 in an arbitrary manner.
The facts of the case relied upon by the petitioners in the above judgment were that three schemes were floated by Kanpur Development Authority in September, 1978 for allotment of flats for economically weaker Section, Lower Income Group and Middle Income Group. Allotments on the basis of lottery was made on 25.10.1980. Middle Income Group were not allotted houses and their applications were kept pending for more than 18 years alongwith the applications under Middle Income Group, Kanpur Development Authority included the name of some more applicants after last date which gave rise to suit in the year 1981-82. The said suit was decreed and the applicants were directed to be allotted the flats. The Kanpur Development Authority instead of complying with the decree increased the cost of each house from 48000 to Rs.2,08,000 by notification dated 24.12.1994. The writ petitions were filed challenging the increase of price. The High Court allowed the writ petition holding that delay in allotting and delivery of possession was caused due to laches on the part of the Kanpur Development Authority. There was specific clause in the brochure mentioned about estimated cost of Rs.48,000/- which can also exceed up to 10% . The Apex Court in above decision has approved the finding that the delay was caused by the Development Authority and although escalation could not exceed 10% as provided in the brochure but the escalation of more than four times was contrary to the contents of the own brochure of the Kanpur Development Authority. Thus, the judgment of the Apex Court in Kanpur Development Authority was on its own facts where Kanpur Development Authority has delayed the allotment for 18 years and there was a specific clause permitting increase only up to 10%.
Another judgment relied upon by the learned counsel for the petitioners is 2008(2) UPLBEC 1251 (Kanti Devi(Smt.) and 39 others vs. Kanpur Development Authority, Kanpur & others). In the said case, the facts as noticed by this Court was that there was no delay on the part of the petitioners and the delay was on the part of the Authority in removing the unauthorised persons who had illegally occupied the flats and in view of the said facts the demand of enhanced price and the interest thereon made by the Authority was set aside. The said case was also decided in its own fact. Moreover, the allotment under the scheme in the said case was for the persons belonging to economically weaker sections floated in the year 1975. The construction work was completed in the year 1980 after which 115 flats were allotted in the year 1985. However, most of the remaining flats could not be allotted to the applicants including the petitioners in the said case who had applied for allotment as the flats were illegally occupied by the unauthorized person and the Authority could remove them sometimes in the year 1984-85 and thereafter the flats had been allotted to the applicants by lottery in the year 1985. Thus in the facts and circumstances of the said case, the Court has come to the conclusion that the authority should not have demanded enhanced price of flats in the year 1985. The said case having been decided in its own facts and circumstances and is of no help to the petitioners.
In Prashant Kumar Shahi vs. Ghaziabad Development Authority reported in (2000)4 SCC 120 dispute raised before the Court was totally different. The appellant applied for allotment of a plot and paid registration amount in the year 1989. The appellant further submitted that he was made to believe that the possession of the plot would be handed over to him by the year 1991. He was asked to deposit the balance amount vide letter issued on 28.2.1985. The appellant contended that he had already paid a substantial amount and the respondents were illegally insisting for the payment of additional amount before delivery of possession of the plot. He filed complaint under Section 36-A, 36-B & (a) and 36-D of Monopolies and Restrictive Trade Practices Act, 1969 which was registered as unfair trade practice in 1997. The commission in MRTP Act concluded that no case of unfair trade practices on behalf of the respondent has been made out and no prejudice seems to have been caused to the appellant complainant as a consequence thereof. The Apex Court refused to interfere with the order of the Commission in the appeal and the appeal was dismissed. The appellant was held liable to pay the amount demanded from him before the delivery of possession of the plot.
From the analysis of the aforesaid judgment it appears that reliance placed by the learned counsel for the petitioners upon the same is misplaced one.
Learned counsel for the petitioners further tried to draw our attention on the submissions made by it in supplementary rejoinder affidavit that the letter dated 29.3.2007 as relied upon by the Kanpur Development Authority was never served upon the petitioners. In support of the said submission reliance has been placed upon the case of State of Maharashtra vs. Rashid Babubhai Mulani reported in JT 2006(1) SC 76 in which it has been held that 'Certificate of Posting' obtained by a sender is not comparable to receipt for sending communication by registered post. The said proposition is not applicable in the present case.
Further submission of the learned counsel for the petitioners is that it is a settled law that where no time limit is prescribed for exercise of power, such power has to be exercised within a reasonable period in support of the said submission. Reliance has been placed upon 1997 (6) SCC 71 (Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim) and 1994 Supp (3) SCC 494 ( Delhi Development Authority vs. Pushpendra Kumar Jain). The contention of the petitioners that the scheme does not prescribe any time limit and as such the allotment ought to have been done within a reasonable period.
From the facts of the instant case as has been culled out above, it is to be noted that the Kanpur Development Authority(hereinafter referred to 'KDA') invited applications for allotment vide advertisement dated 26.7.2006. The petitioners had submitted application on 17.8.2006 with an amount of Rs.1,50,000/- . As per the case of the Authority, as the petitioners failed to provide complete information in their application, the meeting of High Powered Committee for consideration of the application for allotment could not be convened. The petitioners were informed about discrepancy and were asked to submit the documents. The petitioners, denied the receipt of the said letter relied upon by the KDA dated 29.3.2007. However, it is not disputed that the plot in question was never allotted to the petitioners till 19.8.2009 when the contempt notice was served upon the Secretary of the KDA.
On the other hand, the Authority proceeded to readvertise the plot in question vide advertisement dated 7.10.2007 and further advertisement dated 16.11.2008. The petitioners filed writ petition against the first advertisement issued on 7.10.2007 but failed to get any interim order. In the writ petition filed against advertisement dated 16.11.2008, the interim order dated 19.12.2008 was to the effect that the Authority shall not create any third party interest. On the basis of the said interim order, when the KDA invited applications through fresh advertisement dated 6.2.2009 and 25.5.2009, the Contempt Application was filed on 3.7.2009 and the notice was issued by this Court. Upon receipt of the notice of Contempt Application, on 19.8.2009 the letter of allotment was issued and the plot was allotted at the rate of Rs.2288/- per sq. m. on concessional basis.
In the case of Delhi Development Authority Vs. Pushpendra Kumar Jain (supra), the the Apex Court has held that mere identification or selection of allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of draw of lots.. The Apex Court has further held that right to flat arises only on the communication of allotment, and the price or rates prevalent on the date of such communication, is applicable.
Learned counsel for the KDA while placing reliance upon the said judgment of the Apex Court submitted that the condition as laid down in Clause 4 of the advertisement dated 26.7.2006 clearly states that the scheduled rates prevailing at the time of allotment would be the basis for determination of the rate of plots after providing the permissible relaxation as per Government Order dated 1.2.1999. Relevant Clause 4 of the advertisement dated 26.7.2006 is quoted below:
"4-Hkw[k.M dh njksa dk fu/kkZj.k vkoaVu ds le; izHkkoh 'ksM;wy nj esa 'kklukns'k la[;k 231@9vk&1&99 fnukad 01-02-99 ds }kjk vuqeU; NwV ¼50@60 izfr'kr½ iznku djrs gq, fd;k tk;sxkA He further submits that the proposition laid down by the Apex Court in Delhi Development Authority Vs. Pushpendra Kumar Jain(supra) infact squarely covers the case of the KDA in demanding the rates prevailing on the date of allotment i.e. 19.8.2009. He further submits that plots had been allotted on concessional rate by providing concession of 60% in the scheduled rate and the said action of the Authority is strictly in accordance with the conditions provided in the advertisement dated 26.7.2006. In view thereof, the submission of the petitioners that there was delay on the part of the Authority and they are not entitled to make payment at the rate of Rs.2288/- per sq. m., is clearly misconceived and cannot be accepted at all. Further, reliance has been placed upon the Division Bench Judgement of this Court in Mrs. Anjali Swaroop vs. NOIDA and another reported in 2009(4) ADJ(1) wherein the Court while relying upon the judgment of Apex Court in DDA vs. Pushpendra Kumar Jain ( supra) has refused to accept the submission of the petitioners that they are liable to make payment as per the rates mentioned in the brochure scheme of 2004. The Court took note of Clause 6(1) of residential plots Scheme 2004(1) which provides that in case there is increase in allotment rates of above sectors by the Board of NOIDA Authority, the same will be applicable to the applicants/allottees. Thus, the premium of plots as mentioned in the brochure of 2004(1) Scheme was subject to increase in the allotment rate of the sector. This Court has held as follows:-
"25. In view of the aforesaid, it is to be held that by virtue of note to clause 6(i), the Noida authority is entitled to charge the rates of land as prevalent on the date when letter of allotment was issued and the claim of the petitioners that they are entitled for allotment at the rate mentioned in the Brochure Scheme 2004(1), cannot be accepted."
"39. From the aforesaid discussions, it is found that no arbitrariness or malafide can be imputed on Noida authority for delay caused in holding the draw of lots on 8.11.2008 on the basis of which the petitioners can claim not to accept the increased rate of plots w.e. f. 1.5.2008."
In the present case also, though there was no period prescribed for allotment, however, Clause 4 of the advertisement issued on 26.7.2006 is clear and specific. The petitioners having applied in pursuance of the advertisement had accepted the terms and conditions provided in the advertisement itself. There can be no dispute to the fact that the plot in question was allotted on 19.8.2009 after the contempt notice was issued by this Court. The petitioners only moved application for allotment on 17.8.2006 alongwith the amount of Rs.1,50,000/-. Thereafter petitioners were only pursuing the writ petitions challenging the advertisement issued by the Authority. There is nothing on record to substantiate that the petitioners had ever come forward and approached the Authority at any point of time and wrote that they have completed the entire formalities required for allotment of the plot and the Authority had failed to convene the meeting of the High Powered Committee. No application whatsoever has been made by the petitioners. In view of the same, the contention of the learned counsel for the petitioners cannot be accepted that there was any delay on the part of the Authority in making allotment. Infact, the first advertisement dated 7.10.2007 issued by the KDA after the application for allotment was moved by the petitioners clearly shows that the petitioners had failed to fulfill all the formalities for the purpose of allotment, as a result of which the Authority was constrained to issue fresh advertisement. Moreover, mere moving application for allotment alongwith meager amount of Rs.1,50,000/- did not accrue any indefeasible rights whatsoever to the petitioners. No vested right has been accrued to the petitioners by applying against the advertisement dated 26.7.2006 as has been held by the Apex Court in DDA vs. Pushpendra Kumar Jain(supra).
The KDA cannot be said to be acted illegally or arbitrarily in asking the rate of Rs.2288/- per sq. m. while making the allotment vide letter dated 19.8.2009. The said rate has been asked strictly in accordance with the terms and conditions provided in the advertisement giving concession as per the Government Order.
In view of the aforesaid discussions, We do not find any good ground to interfere in the action of the respondent Authority. The Kanpur Development Authority is clearly entitled to demand the rate as asked vide letter dated 19.8.2009 at the time of allotment of plot no. S-2 Ratanpur Extension Scheme in favour of the petitioners.
The writ petition no. 15585 of 2008 has already been dismissed in default vide order of this Court dated 26.11.2010. The above two writ petitions no. 65656 of 2008 and 948 of 2010 are hereby dismissed.
Order Date :- 1.3. 2012 P.P.