U.P. HOUSING & DEVELOPMENT BOARD & ANR versus NAMIT SHARMA on 3 February 2021

ORDER

DHeard Shri Vishwajit Singh, learned counsel appearing for theappellants and Dr. Manish Singhvi, learned senior counsel appearing forthe respondent.

This appeal has been filed against the order dated 07.07.2009 ofthe Division Bench of the Allahabad High Court, Lucknow Bench inWrit Petition No.3315(M/B) of 2005, by which order the writ petitionEfiled by the respondent has been disposed of with a direction to oppositeparty to the writ petition to allot one plot to the respondent against theRegistration No.L.W/P-2951(6). Appellant aggrieved by the saidjudgment has come up in this appeal.

The brief facts necessary to be noticed for deciding this appealFare:

One Shri M.L. Sharma, the grandfather of the respondent gotregistration in his name in a scheme for HIG plot in the Housing Schemeof the appellant. On 16.09.1982 his application was registered withRegistration No.L.W./P-2951(6). Shri M.L. Sharma wrote a letter toGthe appellant on 15.09.1983 that he has nominated his grandson i.e.respondent as his nominee and his mother Smt. Sudha Sharma as hisguardian till he attains majority. Shri M.L. Sharma died on 09.06.1984.The Parishad sent a letter to Shri M.L. Sharma to deposit an additionalamount of Rs.3,000/- as registration money due to escalation in price.However, pursuant to aforesaid request no additional amount wasH

deposited rather Smt. Sudha Sharma wrote a letter to Parishad to refundthe entire registration amount. Parishad wrote a letter on 22.08.1988 toSmt. Sudha Sharma to send the requisite documents i.e. Death Certificateetc. to complete the formalities necessary for obtaining a refund of theregistration amount. The respondent wrote a letter dated 26.08.1997 tothe Parishad requesting Parishad to transfer the Registration No.L.W./P-2951 from his grandfather’s name to his name and allot him a H.I.G.plot in the Housing Scheme. The father of the respondent Dr. N.N.Sharma had also applied in the Housing Scheme and was allotted a plot.A Government order dated 11.10.2002 was issued providing guidelinesfor refund of registration money of unsuccessful applicants under varioushousing schemes of the State. In the Government order it was furtherdirected that old registration of unsuccessful candidates would not berenewed under any circumstances and the unsuccessful candidates wouldhave to apply afresh for registration. In compliance of the Governmentorder dated 11.10.2002, the Parishad has also issued an advertisementin the newspaper dated 14.03.2003 to that effect and letter dated14.09.2004 was also issued to the respondent regarding deposited amountagainst Registration No.L.W./P-2951(6). The respondent wascommunicated that registration is not valid and after completing theformalities mentioned therein he may seek refund of registration amount.The respondent wrote a letter dated 31.12.2004 wherein he reiteratedhis request for transfer of registration in his name and allot a plot. In theletter respondent mentioned that House No.1/41, Vikas Nagar is lyingvacant and the said house should be allotted to him against the registrationof his grandfather. A recommendation was also made on the letter dated31.12.2004.

On 18.03.2005, the Housing Commissioner refused to accept therequest of respondent-Namit Sharma to transfer the registration of hisgrandfather Shri M.L. Sharma in his name. On 21.05.2005 another letterwas issued by the office of the Parishad to the respondent informingthat by virtue of Government order dated 11.10.2002 the registration inthe name of his grandfather Shri M.L. Sharma is not there, hence, it isnot possible to make any allotment of plot. It was further communicatedthat amount deposited can be taken back and respondent was intimatedthat if you are interested in getting any property of the Parishad, you canparticipate in the allotment process against specific property publishedfrom time to time after depositing required token money against the saidproperty.

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AThe respondent filed a Writ Petition No.3315/2005 praying forquashing the order dated 18.03.2005 of the Housing Commissioner andissue a writ order in the nature of mandamus commanding the respondentto consider and allot a vacant plot after transferring the registration inthe respondent’s name. The Writ Petition No.3315/2005 filed byrespondent was disposed of by the High Court by the impugned orderBagainst which this appeal has been filed. The operative portion of theHigh Court’s order is as follows:

“We, therefore, dispose of the writ petition with a direction to theopposite parties to allot one plot to the petitioner against theRegistration No.L.W./P-2951(6) within six weeks from the dateCa certified copy of this order is produced after completing therequired formalities by the petitioner.

Shri Vishwajit Singh, learned counsel appearing for the appellants/Parishad submits that the High Court committed error in directingallotment of plot to the respondent. Neither the registration, which wasDinitially in the name of respondent’s grandfather, was valid nor therewas any registration in favour of the respondent or any allotment of plotin favour of respondent or his grandfather so as to give any right to claimallotment. It is submitted that the respondent was communicated thatregistration is not valid and by virtue of Government order datedE11.10.2002 all old registrations were made ineffective permitting theapplicants to get refund as per the procedure prescribed. It is submittedthat respondent was communicated more than once that the registrationof his grandfather is now no longer valid and he can obtain the refund ofthe deposited amount and may apply afresh registration and participatein the process of allotment. Neither the respondent ever get registeredFafresh nor participated in the process of allotment. The High Courtcommitted error in directing for allotment in favour of the respondent towhom neither the Parishad ever allotted any plot nor any right was claimedby the respondent for allotment. It is submitted that the allotment of plotsin the scheme, in which the respondent was claiming, were all by drawof lots and the respondent’s grandfather was never alloted any plot atGany point of time. It has also been submitted that one HIG house wasalloted to the father of the respondent, namely, Dr. N.N. Sharma, therequest of transfer the allotment with another plot did not materialize ashe did not fulfill the certain conditions mentioned in the letter permittingtransfer. The plot No.1/41 stood alloted to the father of the respondent,Hwho had been handed possession.

Dr. Manish Singhvi, learned senior counsel appearing for therespondent, refuting the submissions of learned counsel for the Parishadcontends that firstly the order passed by the High Court was on thebasis of consent given by the appellant to allot a plot to adjust against 19plots which were vacant hence the appellant was precluded fromchallenging the order of the High Court. He further submits that in favourof the respondent there was already allotment by the HousingCommissioner in exercise of power under Rule 48 which order waspassed on the application of respondent on 31.12.2004. He submits thatthe Housing Commissioner has power, in special circumstances, to passany order and in exercise of power order was passed on 31.12.2004,hence, the High Court’s order does not suffer from any error.

We have considered the submissions of learned counsel for theparties and perused the record.

From the facts which have been brought on the record there is nodispute that initially the grandfather of the respondent Shri M.L. Sharmadeposited an amount of Rs.2000/- as registration money and he wasallotted a registration bearing Registration No.L.W./P-2951(6) on16.09.1982. Before the death of Shri M.L. Sharma he wrote a letter tothe Parishad nominating his grandson i.e. respondent for his registration.There is material on record to indicate that after the death of Shri M.L.Sharma further additional amount towards registration as demanded waspaid. The Parishad wrote a letter to the mother of the respondent tosend requisite documents for obtaining refund. The State Governmenthas issued Government order on 11.10.2002 under which StateGovernment issued guidelines for refund of registration money ofunsuccessful applicants. The copy of the Government order has beenbrought on the record as Annexure P-7.

Paragraphs 2 and 3 of the Government order are relevant whichare to the following effect:

“2. I have been directed to inform you that with a view to makethe aforesaid arrangement more transparent, it has been decidedafter due consideration that the registration money of theunsuccessful candidates must be returned to their Bank accountthrough account payee cheque/bank draft or other prevalentprocedures within 15 days from the date of lottery draw by all theDevelopment Authorities and the Avas Vikas Parishad. In case A

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Aof non-refund of the registration money within 15 days, the interestpayable on the refundable amount would be recovered from thesalary of the officer/employee responsible for the delay. Theconcerned officer/employee would be held fully responsible forthe delay in refund.

B3. In this connection, it has also been decided that the unsuccessfulcandidate will have to be applied open for a new scheme and theold registration of such unsuccessful candidates would not berenewed under any circumstances.”

After the aforesaid Government order, communication was alsoCissued to the respondent on 14.09.2004 informing that RegistrationNo.L.W/P-2951(6) was not valid and therefore cannot be transferred tohim. The respondent was requested to complete the formalities for refundof the deposited amount towards registration. The another order whichhas been brought on the record by the appellant is the letter dated21.05.2005 issued by the Estate Officer where respondent was againDinformed that the Registration No.LW/P-2951(6) of your grandfather isnot valid registration and it is not possible to transfer the registration inthe name of respondent. The writ petition was filed thereafter by therespondent being Writ Petition No.3315/2005.

There is nothing on record to indicate that at any point of time anyEallotment of plot was made in favour of Shri M.L. Sharma, thegrandfather of the respondent. Only Shri M.L. Sharma got himselfregistered on 16.09.1982 with Registration No.L.W./P-2951(6) whichmade him eligible to participate in the process of allotment. Learnedcounsel for the appellant has submitted that the allotment was madeFonly by draw of lots. Paragraphs 2 and 3 of the Government order dated11.10.2002, already extracted above, also indicate the draw of lots forallotment. There being no draw of lots in favour of Shri M.L. Sharma,the grandfather of the respondent, there is no question of allotment ofany plot to the respondent.

GNow we come to the submission of Dr. Manish Singhvi that theorder of the High Court is based on the consent of the appellant, henceappeal should not be entertained. It is true that the High Court has noticedthe following submissions of learned counsel appearing for the respondentin the writ petition:

“Learned counsel for the opposite parties on the basis of theinstruction submits that 19 plots of different sizes are available forallotment in Sector 11 of the Vikas Nagar Extension Scheme ofU.P. Awas Evam Vikas Parishad and the petitioner can be adjustedagainst the 19 plots which are available.”

The aforesaid statement was that plots are available and on whichthe respondent can be adjusted but the fact of availability of the plotdoes not give any entitlement to a person who has no right to claimallotment. Any allotment has to be made in accordance with the procedureprescribed and the Rules of the Parishad. No allotment can be given inthe facts of present case to the respondent when he never participatedin the process of allotment nor there was any allotment in his father or infavour of his grandfather. The above statement cannot be read to meanthat the respondent consented for allowing the writ petition. The HighCourt after noticing the aforesaid statement of the counsel proceeded toexamine the claim of the writ petitioner on merits which consideration isto the following effect:

“It is admitted case of the parties that the grandfather of thepetitioner Late Sri M.L. Sharma was registered with the U.P.Awas Evam Vikas Parishad having the Registration No.L.W./P-2951(6) for the allotment of an HIG plot in the Ram Sagar MishraColony nor know as Indira Nagar Colony, Lucknow. On 15.9.1983Sir M.L. Sharma nominated his grandson i.e. the petitioner as hisnominee against the said registration who on attaining the age ofmajority submitted an application before the opposite parties fortransfer of the Registration No.L.W./P-2951(6) in his favour. Thepetitioner has also annexed the copies of the order passed on25.5.1999 and 31.12.2004 on the application moved by thepetitioner. The opposite parties have placed before us thecommunication dated 3.5.2009 which revels that 19 plots ofdifferent sizes are available for allotment in Vikas Nagar VistarYojna, Lucknow.”

The High Court in the above conclusion has noted the applicationmoved by the respondent dated 31.12.2004, on which application theorder passed therein Dr. Manish Singhvi, appearing for the respondent,has made much emphasis. The application filed by the respondent dated31.12.2004 has been brought on the record in which applicationrespondent made following prayers:

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A“In the prevailing circumstances I once again request your goodselfto transfer the registration number cited above from mygrandfather’s name to my name in the light of letter datedSeptember 15, 1983, which stands received in the Housing Boardand to allot house/plot to me at the earliest possible. It is to bringto your kind notice that House No.1/41, Vikas Nagar, Lucknow isBlying vacant and the said house be considered to be allotted tome.

Dated 31.12.2004

Yours faithfullySd/- illegible

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(Namit Sharma)B-1/14, Sector-Q, Aliganj,Lucknow 226 024 (U.P.)”

On the said application there is an endorsement to the followingDeffect:

“By hand:

Joint Housing Commissioner (Lucknow)

While using the powers conferred under Rule 48, the request madeEin para (a) may please be accepted under special circumstances.

Sd/- Illegible31.12.2004"

Dr. Manish Singhvi has taken pains to contend that the aboveorder dated 31.12.2004 is the order passed by the Housing CommissionerFin exercise of power under Rule 48 where Commissioner has power topass any order. Learned counsel for the respondent submits that thecorrect Rule is Rule 47 of the Uttar Pradesh Awas Evam Vikas ParishadBhukhando Tatha Bhavano Ke Panjikaran Evam Pradeshan SambandhiViniyam, 1979 where regulation framed under Section 95(1) of the UttarGPradesh Avas Evam Vikas Parishad Adhiniyam, 1965. The Rule 47provide that notwithstanding anything in the regulation in specialcircumstance, in the interest of the Board, Housing Commissioner isempowered to take any decision including he shall have right to changethe allotment process and process for payment. There can be no disputeto the right of the Housing Commissioner given by Rule 47 as notedH

above. However, the endorsement dated 31.12.2004 on which Dr. ManishSinghvi has placed much reliance is not an order passed by the HousingCommissioner but only a recommendation made by some official personto Joint Housing Commissioner, Lucknow. The recommendation wasalso on the application of the respondent which was of the same date.The submission is completely misconceived without any merit that thereis an order passed by the Commissioner in favour of the respondent inexercise of power under Rule 47. We may notice one more fact whichis relevant. In his appliation dated 31.12.2004 the respondent has madea prayer to allot plot No.1/41 to him which plot was already allotted tohis father Dr. N.N. Sharma who was also given possession of the ploton 06.10.2003. Dr. N.N. Sharma made a request to change his plot 1/41to plot 1/171 which was approved with some conditions on 15.05.2004,which conditions were never complied. Plot No.1/41 having been allottedto father of respondent, his prayer to allot plot No.1/41 was malafideand incorrect. After the aforesaid application dated 31.12.2004 andrecommendation made therein letter was issued to the respondent on21.05.2005 where it was mentioned that the registration is not valid andthere is no question of transfer of registration in favour of the respondentand if he is interested he may participate in the allotment process.

We, thus, find no substance in the submission of Dr. ManishSinghvi that there was an order passed by Housing Commissioner allottingplot in favour of the respondent. It is further to be noticed that for allotmentof any plot of Housing Board there is a process which all applicantshave to follow. As contended by counsel for the Parishad allotmentswere made by draw of lots of all eligible registered applicants. It is not acase of the respondent that at any point of time any draw of lot wasmade in which respondent’s grandfather was declared successful. Mereregistration in the name of Late grandfather of the respondent whichregistration also came to an end after issuance of the Government orderdated 11.10.2002 there was no right left in the respondent to claim evenregistration but to say of allotment of a plot. The Parishad havingcommunicated the respondent time and again to apply for refund of theamount which was deposited at the time of registration by his grandfather.

The High Court has not given any cogent reason as to on whatbasis direction was issued to allot one plot to the respondent. The merestatement of the counsel for the Board that 19 plots are vacant cannotbe utilized for issuance of direction for plot to respondent who has AB

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Aotherwise no right for allotment. Allotment of plot to respondent in sucha manner would have deprived the other applicants who must be awaitingfor allotment of property or who must be eligible for allotment of property.We, thus, are of the considered opinion that the High Court committederror in issuing the direction to allot a plot to the respondent.

BIn view of the above, we allow the appeal and set aside the orderof the High Court dated 07.07.2009 and dismiss the writ petition filed bythe respondent.

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Divya Pandey

Appeal allowed.

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