Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4020 OF 2010
U.P. HOUSING & DEVELOPMENT BOARD & ANR. APPELLANT(S)
VERSUS
NAMIT SHARMA RESPONDENT(S)
O R D E R
Heard Shri Vishwajit Singh, learned counsel
appearing for the appellants and Dr. Manish Singhvi,
learned senior counsel appearing for the respondent.
This appeal has been filed against the order dated
07.07.2009 of the Division Bench of the Allahabad High
Court, Lucknow Bench in Writ Petition No.3315(M/B) of
2005, by which order the writ petition filed by the
respondent has been disposed of with a direction to
opposite party to the writ petition to allot one plot to
the respondent against the Registration No.L.W/P-2951(6).
Appellant aggrieved by the said judgment has come up in
this appeal.
Signature Not Verified
Digitally signed by
MEENAKSHI KOHLI
Date: 2021.02.12
14:07:18 IST
Reason:
The brief facts necessary to be noticed for
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deciding this appeal are:
One Shri M.L. Sharma, the grandfather of the
respondent got registration in his name in a scheme for
HIG plot in the Housing Scheme of the appellant. On
16.09.1982 his application was registered with
Registration No.L.W./P-2951(6). Shri M.L. Sharma wrote a
letter to the appellant on 15.09.1983 that he has
nominated his grandson i.e. respondent as his nominee and
his mother Smt. Sudha Sharma as his guardian 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 additional amount of Rs.3,000/- as registration money
due to escalation in price. However, pursuant to
aforesaid request no additional amount was deposited
rather Smt. Sudha Sharma wrote a letter to Parishad to
refund the entire registration amount. Parishad wrote a
letter on 22.08.1988 to Smt. Sudha Sharma to send the
requisite documents i.e. Death Certificate etc. to
complete the formalities necessary for obtaining a refund
of the registration amount. The respondent wrote a letter
dated 26.08.1997 to the 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 guidelines for refund of
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registration money of unsuccessful applicants under
various housing schemes of the State. In the Government
order it was further directed that old registration of
unsuccessful candidates would not be renewed under any
circumstances and the unsuccessful candidates would have
to apply afresh for registration. In compliance of the
Government order dated 11.10.2002, the Parishad has also
issued an advertisement in the newspaper dated 14.03.2003
to that effect and letter dated 14.09.2004 was also
issued to the respondent regarding deposited amount
against Registration No.L.W./P-2951(6). The respondent
was communicated that registration is not valid and after
completing the formalities mentioned therein he may seek
refund of registration amount. The respondent wrote a
letter dated 31.12.2004 wherein he reiterated his request
for transfer of registration in his name and allot a
plot. In the letter respondent mentioned that House
No.1/41, Vikas Nagar is lying vacant and the said house
should be allotted to him against the registration of his
grandfather. A recommendation was also made on the letter
dated 31.12.2004.
On 18.03.2005, the Housing Commissioner refused to
accept the request of respondent-Namit Sharma to transfer
the registration of his grandfather Shri M.L. Sharma in
his name. On 21.05.2005 another letter was issued by the
office of the Parishad to the respondent informing that
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by virtue of Government order dated 11.10.2002 the
registration in the name of his grandfather Shri M.L.
Sharma is not there, hence, it is not possible to make
any allotment of plot. It was further communicated that
amount deposited can be taken back and respondent was
intimated that if you are interested in getting any
property of the Parishad, you can participate in the
allotment process against specific property published
from time to time after depositing required token money
against the said property.
The respondent filed a Writ Petition No.3315/2005
praying for quashing the order dated 18.03.2005 of the
Housing Commissioner and issue a writ order in the nature
of mandamus commanding the respondent to consider and
allot a vacant plot after transferring the registration
in the respondent's name. The Writ Petition No.3315/2005
filed by respondent was disposed of by the High Court by
the impugned order against which this appeal has been
filed. The operative portion of the High Court's order is
as follows:
"We, therefore, dispose of the writ petition
with a direction to the opposite parties to
allot one plot to the petitioner against the
Registration No.L.W./P-2951(6) within six
weeks from the date a certified copy of this
order is produced after completing the
required formalities by the petitioner.
Shri Vishwajit Singh, learned counsel appearing for
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the appellants/Parishad submits that the High Court
committed error in directing allotment of plot to the
respondent. Neither the registration, which was initially
in the name of respondent's grandfather, was valid nor
there was any registration in favour of the respondent or
any allotment of plot in favour of respondent or his
grandfather so as to give any right to claim allotment. It
is submitted that the respondent was communicated that
registration is not valid and by virtue of Government
order dated 11.10.2002 all old registrations were made
ineffective permitting the applicants to get refund as per
the procedure prescribed. It is submitted that respondent
was communicated more than once that the registration of
his grandfather is now no longer valid and he can obtain
the refund of the deposited amount and may apply afresh
registration and participate in the process of allotment.
Neither the respondent ever get registered afresh nor
participated in the process of allotment. The High Court
committed error in directing for allotment in favour of
the respondent to whom neither the Parishad ever allotted
any plot nor any right was claimed by the respondent for
allotment. It is submitted that the allotment of plots in
the scheme, in which the respondent was claiming, were all
by draw of lots and the respondent's grandfather was never
alloted any plot at any point of time. It has also been
submitted that one HIG house was alloted to the father of
the respondent, namely, Dr. N.N. Sharma, the request of
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transfer the allotment with another plot did not
materialize as he did not fulfill the certain conditions
mentioned in the letter permitting transfer. The plot
No.1/41 stood alloted to the father of the respondent, who
had been handed possession.
Dr. Manish Singhvi, learned senior counsel appearing
for the respondent, refuting the submissions of learned
counsel for the Parishad contends that firstly the order
passed by the High Court was on the basis of consent given
by the appellant to allot a plot to adjust against 19
plots which were vacant hence the appellant was precluded
from challenging the order of the High Court. He further
submits that in favour of the respondent there was already
allotment by the Housing Commissioner in exercise of power
under Rule 48 which order was passed on the application of
respondent on 31.12.2004. He submits that the Housing
Commissioner has power, in special circumstances, to pass
any 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 the parties and perused the record.
From the facts which have been brought on the record
there is no dispute that initially the grandfather of the
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respondent Shri M.L. Sharma deposited an amount of
Rs.2000/- as registration money and he was allotted a
registration bearing Registration No.L.W./P-2951(6) on
16.09.1982. Before the death of Shri M.L. Sharma he wrote
a letter to the 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 was paid. The Parishad wrote a letter to the
mother of the respondent to send requisite documents for
obtaining refund. The State Government has issued
Government order on 11.10.2002 under which State
Government issued guidelines for refund of registration
money of unsuccessful applicants. The copy of the
Government order has been brought on the record as
Annexure P-7.
Paragraphs 2 and 3 of the Government order are
relevant which are to the following effect:
"2. I have been directed to inform you that
with a view to make the aforesaid arrangement
more transparent, it has been decided after
due consideration that the registration money
of the unsuccessful candidates must be
returned to their Bank account through
account payee cheque/bank draft or other
prevalent procedures within 15 days from the
date of lottery draw by all the Development
Authorities and the Avas Vikas Parishad. In
case of non-refund of the registration money
within 15 days, the interest payable on the
refundable amount would be recovered from the
salary of the officer/employee responsible
for the delay. The concerned officer/employee
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would be held fully responsible for the delay
in refund.
3. In this connection, it has also been
decided that the unsuccessful candidate will
have to be applied open for a new scheme and
the old registration of such unsuccessful
candidates would not be renewed under any
circumstances."
After the aforesaid Government order, communication
was also issued to the respondent on 14.09.2004 informing
that Registration No.L.W/P-2951(6) was not valid and
therefore cannot be transferred to him. The respondent was
requested to complete the formalities for refund of the
deposited amount towards registration. The another order
which has been brought on the record by the appellant is
the letter dated 21.05.2005 issued by the Estate Officer
where respondent was again informed that the Registration
No.LW/P-2951(6) of your grandfather is not valid
registration and it is not possible to transfer the
registration in the name of respondent. The writ petition
was filed thereafter by the respondent being Writ Petition
No.3315/2005.
There is nothing on record to indicate that at any
point of time any allotment of plot was made in favour of
Shri M.L. Sharma, the grandfather of the respondent. Only
Shri M.L. Sharma got himself registered on 16.09.1982 with
Registration No.L.W./P-2951(6) which made him eligible to
participate in the process of allotment. Learned counsel
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for the appellant has submitted that the allotment was
made only by draw of lots. Paragraphs 2 and 3 of the
Government order dated 11.10.2002, already extracted
above, also indicate the draw of lots for allotment. There
being no draw of lots in favour of Shri M.L. Sharma, the
grandfather of the respondent, there is no question of
allotment of any plot to the respondent.
Now we come to the submission of Dr. Manish Singhvi
that the order of the High Court is based on the consent
of the appellant, hence appeal should not be entertained.
It is true that the High Court has noticed the following
submissions of learned counsel appearing for the
respondent in the writ petition:
"Learned counsel for the opposite parties on
the basis of the instruction submits that 19
plots of different sizes are available for
allotment in Sector 11 of the Vikas Nagar
Extension Scheme of U.P. Awas Evam Vikas
Parishad and the petitioner can be adjusted
against the 19 plots which are available."
The aforesaid statement was that plots are available
and on which the respondent can be adjusted but the fact
of availability of the plot does not give any entitlement
to a person who has no right to claim allotment. Any
allotment has to be made in accordance with the procedure
prescribed and the Rules of the Parishad. No allotment can
be given in the facts of present case to the respondent
when he never participated in the process of allotment nor
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there was any allotment in his father or in favour of his
grandfather. The above statement cannot be read to mean
that the respondent consented for allowing the writ
petition. The High Court after noticing the aforesaid
statement of the counsel proceeded to examine the claim of
the writ petitioner on merits which consideration is to
the following effect:
"It is admitted case of the parties that the
grandfather of the petitioner 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 Mishra Colony nor know
as Indira Nagar Colony, Lucknow. On 15.9.1983
Sir M.L. Sharma nominated his grandson i.e.
the petitioner as his nominee against the
said registration who on attaining the age of
majority submitted an application before the
opposite parties for transfer of the
Registration No.L.W./P-2951(6) in his favour.
The petitioner has also annexed the copies of
the order passed on 25.5.1999 and 31.12.2004
on the application moved by the petitioner.
The opposite parties have placed before us
the communication dated 3.5.2009 which revels
that 19 plots of different sizes are
available for allotment in Vikas Nagar Vistar
Yojna, Lucknow."
The High Court in the above conclusion has noted the
application moved by the respondent dated 31.12.2004, on
which application the order passed therein Dr. Manish
Singhvi, appearing for the respondent, has made much
emphasis. The application filed by the respondent dated
31.12.2004 has been brought on the record in which
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application respondent made following prayers:
"In the prevailing circumstances I once again
request your goodself to transfer the
registration number cited above from my
grandfather's name to my name in the light of
letter dated September 15, 1983, which stands
received in the Housing Board and to allot
house/plot to me at the earliest possible. It
is to bring to your kind notice that House
No.1/41, Vikas Nagar, Lucknow is lying vacant
and the said house be considered to be
allotted to me.
Dated 31.12.2004
Yours faithfully
Sd/- illegible
(Namit Sharma)
B-1/14, Sector-Q, Aliganj,
Lucknow 226 024 (U.P.)"
On the said application there is an endorsement to
the following effect:
"By hand:
Joint Housing Commissioner (Lucknow)
While using the powers conferred under Rule
48, the request made in para (a) may please
be accepted under special circumstances.
Sd/- Illegible
31.12.2004"
Dr. Manish Singhvi has taken pains to contend that
the above order dated 31.12.2004 is the order passed by
the Housing Commissioner in exercise of power under Rule
48 where Commissioner has power to pass any order. Learned
counsel for the respondent submits that the correct Rule
is Rule 47 of the Uttar Pradesh Awas Evam Vikas Parishad
Bhukhando Tatha Bhavano Ke Panjikaran Evam Pradeshan
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Sambandhi Viniyam, 1979 where regulation framed under
Section 95(1) of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965. The Rule 47 provide that
notwithstanding anything in the regulation in special
circumstance, in the interest of the Board, Housing
Commissioner is empowered to take any decision including
he shall have right to change the allotment process and
process for payment. There can be no dispute to the right
of the Housing Commissioner given by Rule 47 as noted
above. However, the endorsement dated 31.12.2004 on which
Dr. Manish Singhvi has placed much reliance is not an
order passed by the Housing Commissioner but only a
recommendation made by some official person to Joint
Housing Commissioner, Lucknow. The recommendation was also
on the application of the respondent which was of the same
date. The submission is completely misconceived without
any merit that there is an order passed by the
Commissioner in favour of the respondent in exercise of
power under Rule 47. We may notice one more fact which is
relevant. In his appliation dated 31.12.2004 the
respondent has made a prayer to allot plot No.1/41 to him
which plot was already allotted to his father Dr. N.N.
Sharma who was also given possession of the plot on
06.10.2003. Dr. N.N. Sharma made a request to change his
plot 1/41 to plot 1/171 which was approved with some
conditions on 15.05.2004, which conditions were never
complied. Plot No.1/41 having been allotted to father of
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respondent, his prayer to allot plot No.1/41 was malafide
and incorrect. After the aforesaid application dated
31.12.2004 and recommendation made therein letter was
issued to the respondent on 21.05.2005 where it was
mentioned that the registration is not valid and there is
no question of transfer of registration in favour of the
respondent and if he is interested he may participate in
the allotment process.
We, thus, find no substance in the submission of Dr.
Manish Singhvi that there was an order passed by Housing
Commissioner allotting plot in favour of the respondent.
It is further to be noticed that for allotment of any plot
of Housing Board there is a process which all applicants
have to follow. As contended by counsel for the Parishad
allotments were made by draw of lots of all eligible
registered applicants. It is not a case of the respondent
that at any point of time any draw of lot was made in
which respondent's grandfather was declared successful.
Mere registration in the name of Late grandfather of the
respondent which registration also came to an end after
issuance of the Government order dated 11.10.2002 there
was no right left in the respondent to claim even
registration but to say of allotment of a plot. The
Parishad having communicated the respondent time and again
to apply for refund of the amount which was deposited at
the time of registration by his grandfather.
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The High Court has not given any cogent reason as to
on what basis direction was issued to allot one plot to
the respondent. The mere statement of the counsel for the
Board that 19 plots are vacant cannot be utilized for
issuance of direction for plot to respondent who has
otherwise no right for allotment. Allotment of plot to
respondent in such a manner would have deprived the other
applicants who must be awaiting for allotment of property
or who must be eligible for allotment of property. We,
thus, are of the considered opinion that the High Court
committed error in issuing the direction to allot a plot
to the respondent.
In view of the above, we allow the appeal and set
aside the order of the High Court dated 07.07.2009 and
dismiss the writ petition filed by the respondent.
...................J.
(ASHOK BHUSHAN)
...................J.
(R. SUBHASH REDDY)
New Delhi;
February 03, 2021
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ITEM NO.105 Court 7 (Video Conferencing) SECTION III-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s).4020/2010
U.P. HOUSING & DEVELOPMENT BOARD & ANR. Appellant(s)
VERSUS
NAMIT SHARMA Respondent(s)
Date : 03-02-2021 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE R. SUBHASH REDDY
For Appellant(s)
Mr. Vishwajit Singh, AOR
Mr. Pankaj Singh, Adv.
Ms. Ridhima Singh, Adv.
Ms. Vijaya Singh, Adv.
Mr. Sushmit Chauhan, Adv.
For Respondent(s)
Dr. Manish Singhvi, Sr. Adv.
Mr. Prashant Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed reportable order.
Pending application(s), if any, stands disposed of.
(ARJUN BISHT) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(signed reportable order is placed on the file)
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