Gaurav Sehgal and Others (Morning Session) vs State of U.P. and Others

Ritu Raj Awasthi, J.—These are the bunch of writ petitions involving same facts and challenging the decision/resolution of the Lucknow Development Authority Board dated 13.8.2009 regarding cancellation of allotment of plots of the petitioners and like persons. The petitioners have also prayed for a direction to the opposite parties to adjust the petitioners by allotting them plots by the Lucknow Development Authority in the Gomti Nagar Housing Scheme or Gomti Nagar Extension scheme, Lucknow on the same rates.

The leading case is Writ Petition No. 8487 (MB) of 2009; Gaurav Sehgal & Ors. Vs. State of U.P. & Ors.

All the aforesaid writ petitions have been connected and they have been heard together and as such being decided by a common judgment.

Heard learned counsel for the petitioners, Sri Raghvendra Kumar Singh, learned Sr. Advocate, Sri Manish Kumar, Sri T.N. Tiwari, Sri I.P. Singh, Sri P.C. Agarwal, Sri V. P. Nag, Sri Mahendra Nath Rai as well as learned counsel for the respondents, Sri J.N. Mathur, learned Additional Advocate General, Sri U.N. Mishra, learned Chief Standing Counsel, Sri Rajesh Singh, Chauhan, Sri Anuj Kudesia.

The petitioners are the allottees of certain plots by the Lucknow Development Authority (hereinafter referred to as the ''LDA'') in Gomit Nagar Extension Scheme, Part 1-A, Lucknow and they have also deposited the entire amount towards the cost with the LDA.

In fact, a housing scheme was floated on 5th of November, 2006 and applications for allotment of plots were invited. The plots were allotted by drawing a lottery and the allottees were required to complete certain formalities including deposit of cost of the plots as per the given plan. Before the aforesaid scheme could be put into execution, a Public Interest Litigation was filed in this Court, namely, Writ Petition No. 3779 (MB) of 2006 in which this Court had passed an interim order restraining the respondents from making any development, for the reasons given in the order.

The respondents had thereafter decided to convert the aforesaid land into green belt and for that matter, they had cancelled the allotment already made in favour of the petitioners and similarly situated other persons. It is said that the respondent no. 2 by order dated 6th of August, 2009 had cancelled the allotments of Vyom Khand with a direction that the demand drafts be issued for the purposes of returning the amount paid by the allottees. The reason given for cancellation of the said order is the pendency of some Public Interest Litigation.

The grievance of the petitioners is that even if under the Court''s order, the land in question cannot be used for any development, as it is not fit for the purpose, and even if the land is to be converted into green belt, still the respondents are under the legal obligation to allot alternative land to the petitioners in the vicinity where much more land is still available, as has been stated in Para 35 of the writ petition.

By filing supplementary affidavits and affidavit in support of the application for further interim relief, the petitioners asserted that the respondents have invited applications for allotment of land to the Weaker Sections of Society, Cooperative Housing Societies and other Institutions like Corporations, Government Hostels, Universities, Polytechnics, Engineering, Medical & Dental Colleges, Management Institutions, Nursing Homes, Financial Institutions, etc. but the respondents are not considering the genuine request of the petitioners to allot alternative plots by adjusting them in other schemes in Gomti Nagar, Lucknow.

It has also been asserted by the learned counsel for the petitioners that the LDA has transferred or adjusted certain allottees of Vyom Khand in other sectors of Gomti Nagar prior to the passing of the order to cancel the allotment of plots allotted in favour of the petitioners by the impugned resolution of the respondent no. 3 and it amounts to hostile discrimination and decision so taken suffers from favoritism, which is complete violation of Article 14 of the Constitution of India.

The contention of the learned counsel for the petitioners is, in fact, that the impugned decision to cancel the allotment of plots is against the doctrine of legitimate expectation, promissory estoppel and also amounts to complete misrepresentation with the petitioners.

It is submitted that the entire amount towards the cost of the plots were deposited by the petitioners after the allotment in their favour and in some cases the money so deposited was on the basis of loan procured from the Banks at the higher interest rates than the interest offered with the refund by the LDA.

The petitioners due to impugned decision have been put to irreparable loss and injury, as they have not only been deprived of the residential plots but have also been put to heavy financial losses without any fault of their own as they are liable to pay the interest and damages to the Banks. It is also submitted that the LDA has failed to fulfill its promise to handover the possession of the plots to the allottees as per the time schedule provided under the scheme.

Counter affidavits, short counter affidavits and supplementary counter affidavits have been filed by the LDA asserting therein that Gomti Nagar Extension Scheme Part 1-A was planned over 266 hectares of land out of which 117 hectares was earmarked for the residential purpose and rest was earmarked as green belt. However, no land in Gomti Nagar Extension, Part 1-A is available other than green belt.

In the counter affidavit filed by the LDA to the affidavit dated 15.9.2010, it has been specifically stated that no land is available with the LDA after conversion of land use of the entire Gomti Nagar Extension scheme, Part 1-A into a green belt.

It is also stated that the Gomti Nagar Extension scheme is distinct from the Gometi Nagar Extension scheme, Part 1-A under which the Vyom, Vibhor and Vinayak Khands are situated.

In the supplementary counter affidavit dated 17.7.2011, it has been stated that the entire 266 hectares of land on which the Gomti Nagar Extension scheme, Part 1-A was launched is now green belt and no land is available under the said scheme for residential purpose.

So far as the adjustment of certain allottees of Vyom Khand is concerned, it is submitted by the learned counsel for the LDA that all the plots which were changed/adjusted to different locations were, in fact, on account of some dispute regarding acquisition of land and the said adjustment was made prior to cancellation of Vyom, Vibhor and Vinayak Khands under Gomti Nagar Extension scheme, Part 1-A. After the impugned decision to cancel the allotments, no adjustment of any person has been done by the LDA.

It is also submitted by the learned counsel for the LDA that in Gomti Nagar Extension scheme, no land is earmarked for cooperative housing societies. The averments made in this regard in the writ petition are totally incorrect.

As a matter of fact, after the planning of the Gomti Nagar Extension scheme, neither any land is available nor any land is earmarked for allotment of housing societies.

It is the specific case of the LDA that no land is available with the LDA so as to adjust the allottees of Vyom, Vibhor and Vinayak Khands of Gomti Nagar Extension scheme, Part 1-A, however, in the short counter affidavit dated 17.12.2009 filed on behalf of the LDA, it has been stated that for the purpose of redressing the problem faced by the allottees on account of impugned decision, allottees have been offered flats in multi-storied buildings. Costs of flats have been made affordable by cutting down overhead and contingency charges. LDA has also offered the facility of depositing the amount for these flats in two years without any interest. The said decision has been taken keeping in view the non availability of land for horizontal development of residential area.

It is further submitted that as per the present guidelines for costing of properties of LDA, 15% + 15% of the basic value of the property is charged for contingency and overhead charges respectively from the allottees. However, in the instant case if the offer is accepted by the petitioners, the said contingency and overhead charges will not be charged.

Further, the allottess of Vyom Khand have been issued offers for alternative residential accommodation of two bed rooms, three bed rooms, three bed rooms + servant quarter and pent house costing Rs. 19.50 lakhs, Rs. 26.50 lakhs, Rs. 30.50 lakhs and Rs. 40.00 lakhs respectively.

It is also stated that a total of 175 allottees of Vyom Khand have already applied for adjustment in Green Wood Apartment.

Learned counsel for the respondents strongly contended that the petitioners have no right to enforce the allotment of land in their favour, especially when the entire scheme has been cancelled and the land use has been changed and it has been converted into a green belt.

Learned counsel for the LDA has informed that the Writ Petition No. 6232 (MB) of 2010; Wing Commander Sanjay Kumar Gaur and Another Vs. State of U.P. and Ors challenging the impugned resolution/decision of Lucknow Development Authority Board dated 13.8.2009 has been dismissed, holding that the petitioners have no legal right, vide judgment and order dated 13.7.2010, wherein it has been observed that the LDA had proposed that if such applicants who had applied in Vyom Khand scheme apply in some multistory flats scheme, they would be given special weightage including some concession in the matter of payments.

By way of rejoinder affidavit, the petitioners have tried to submit that numerous plots in Gomti Nagar Extension scheme have been earmarked for Group Housing Societies, which clearly shows that the land is available with the LDA and the respondents are deliberately not exploring the possibility of adjustment of petitioners by allotting them alternative plots.

It is also asserted in the rejoinder affidavit that the respondents showing favoritism have adjusted plots of several persons in other schemes prior to cancellation of Vyom Khand scheme, which clearly shows discriminatory action as well as favoritism and nepotism. The entire exercise of cancellation of allotment is arbitrary and illegal.

In support of the submissions, learned counsel for the petitioners, Sri Manish Kumar has placed reliance upon a decision of the Apex Court in the case of Hira Tikkoo Vs. Union Territory, Chandigarh and Others, , wherein in para 22 and 23, it has been observed as under:

In public law in certain situations, relief to the parties aggrieved by action or promises of public authorities can be granted on the doctrine of ''legitimate expectation'' but when grant of such relief is likely to harm larger public interest, the doctrine cannot be allowed to be pressed into service. We may usefully call in aid Legal Maxim: ''Salus populi est suprema lex: regard for the public welfare is the highest law''. This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for the public good''.

On the same principle and to protect larger public interest, the Chandigarh Administration can be relieved of fulfilling legitimate expectation arising from its allotment of plots on the ground that their development schemes under consideration have been found to be in contravention of the Forest Act and the Aircraft Act. Another legal maxim which can be invoked to their aid is: ''Lex non cogit ad impossibilia: the law does not compel a man to do that which he cannot possibly perform''.

It is submitted that in the aforesaid case the Apex Court after considering the rival submissions made on behalf of the various parties, in order to maintain equities, had modified the order passed by the High Court by directing that 23 consentees found eligible in accordance with the new environmental norms and 13 allottees of one-kanal plot shall be allotted plots of smaller size at the same rates, however, non-consentees cannot claim parity for allotment with the consentees, as the consentees would have priority in allotment. The non-consentees can be offered plots in New Industrial Zone, Phase-III or if their project reports are ultimately found to be not approvable, the price deposited by them for the original plots would be refunded to them with interest at the rate of 12% per annum from the date of initial deposit.

Learned Chief Standing Counsel as well as learned counsel for the LDA on the other hand have relied on a decision of the Apex Court in the case of Ghaziabad Development Authority and State of U.P. Vs. Delhi Auto and General Finance Pvt. Ltd. and Maha Maya General Finance Co. Ltd. and another, , wherein it has been held that the plea of legitimate expectation relates to procedural fairness in decision making and forms a part of rule of non-arbitrariness; and it is not meant to confer an independent right enforceable by itself.

Para 8, 9 and 10 of the judgment aforesaid are quoted as under:

The next ground of legitimate expectation, on which the High Court''s conclusion is based, is equally tenuous. That view results from a misreading of the decision of this Court in Food Corporation of India Vs. M/s. Kamdhenu Cattle Feed Industries, . It was clearly indicated in that decision that non-consideration of legitimate expectation of a person adversely affected by a decision may invalidate the decision on the ground of arbitrariness even though the legitimate expectation of that person is not an enforceable right to provide the foundation for challenge of the decision on that basis alone. In other words, the plea of legitimate expectation relates to procedural fairness in decision-making and forms a part of the rule of non-arbitrariness; and it is not meant to confer an independent right enforceable by itself. That apart, the manner in which legitimate expectation has been relied on by the High Court in the present case, is difficult to appreciate. The High Court on this aspect has stated as under:

After the notification of the State Government dated 22-4-1991 converting the use of petitioners'' land from recreational to residential the petitioners had a legitimate expectation that they can construct the colony and submitted plans. They have invested substantial amounts and people have made investments. They acted on the assurance of the State Government and have altered their position. This legitimate expectation of the petitioners has to be balanced with the general public interest. In the instant case it is admitted that the authority has not made any plans or scheme for the use of this vast land for recreational purpose and no proposals to this effect had been sent to the State. The State has not disclosed the reasons for which the user of the land is again being changed. In the absence of any scheme to meet strong public necessity, the present exercise of power u/s 13 of the Act is arbitrary and illegal.

It is difficult to appreciate how the change of land use of the area in the master plan from ''recreational'' to ''residential'' could give rise to a legitimate expectation in a private coloniser owning land in that area that he could construct a housing colony therein simply because he had submitted some plan for approval, when grant of the permission u/s 15 of the U.P. Act is not automatic and the statute permitted amendment of the master plan by change of the land use even thereafter. The mere fact that the area was shown originally as meant for ''recreational'' use, shows that reversion to the original land use is equally permitted by the statute. No legitimate expectation of the kind claimed by these private colonisers could arise on these facts and in a situation like this clearly contemplated by the statute itself.

As earlier indicated, the decision in Food Corp. of India vs Kamdhenu Cattle Feed Industries clearly says that legitimate expectation does not form an enforceable right to provide an independent ground of challenge. The modified stand taken by the learned counsel for respondents on this aspect is equally met by this proposition. In substance the contention of learned counsel for the respondents is that the planning commitments and the investment made by the two private colonisers confer on them or at least on Maha Maya the indefeasible right to grant of the permission and sanctioned of their lay-out plan which cannot be defeated by exercise of the power of amendment of the master plan u/s 13 of the U.P. Act. The fallacy in this contention is that it upgrades the so-called legitimate expectation, assuming it to be so in the present case, to a legally unforeseeable right which a legitimate expectation is not, it being merely a part of the rule of nonarbitrariness to ensure procedural fairness of the decision. It is clear that the requirements of public interest can outweigh the legitimate expectation of private persons and the decision of a public body on that basis is not assailable. This contention of learned counsel for the respondents fails.

We have considered the submissions made by the parties'' counsel and gone through the record.

During the pendency of writ petition, this Court had directed the LDA to explore the situation and the possibility of adjustment of petitioners by providing alternative plots.

It is the clear stand of the LDA that the entire land available under the Gomti Nagar Extension scheme, Part 1-A has been converted into green belt and there is no land available for residential purpose.

It is also the case of the LDA that allowing adjustment of certain plots of allottees of Vyom Khand was done prior to the decision to cancel the allotment.

It is the admitted position that the decision to cancel the allotment has been done due to the pendency of the Public Interest Litigation filed in this Court i.e. Writ Petition No. 3779 (MB) of 2006 in which this Court has passed an interim order restraining the respondents from making any development.

It is also admitted position that before the said scheme could be put into execution i.e. the plots are handed over to the allottees, the LDA has taken a decision to cancel the allotments and the Master Plan has been changed and the area has been converted into a green belt.

We are of the considered opinion that the petitioners have no legal right to claim the allotted plots or seek a direction from this Court for adjustment/allotment of alternative plots in other schemes i.e. Gomti Nagar Housing Scheme or Gomti Nagar Extension Scheme, especially when the decision to cancel the allotment has been taken due to some cogent reasons.

The doctrine of legitimate expectation will apply only when there is a legal right.

Since the entire area in which the petitioners were allotted the plots has been converted into a green belt and a decision has been taken by the authorities to cancel all the allotment of plots situated in that area, we do not find any arbitrariness or discrimination in the said decision.

Promissory estoppel in the present facts and circumstances cannot be made applicable as the LDA had taken the impugned decision to cancel the allotments due to certain order passed in Public Interest Litigation restraining them from carrying out developments in the are in which the plots of the petitioners were situated.

There is no procedural illegality or irregularity in the impugned decision taken by the LDA.

The Apex Court in the judgment of Ghaziabad Development Authority (supra) has held that the plea of legitimate expectation relates to procedural fairness in decision-making and forms a part of the rule of non-arbitrariness. It does not confer an independent right enforceable by itself. The legitimate expectation cannot mean to provide a thing to be done in a particular manner, even if there is no legal right. The petitioners in the present case have no legal right to claim the possession over the allotted plots or seek a direction from this Court, in this regard.

Learned counsel for the petitioners have not been able to show a single instance where adjustment of plots of the allottees of Vyom Khand has been done after the impugned decision to cancel the allotment of plots.

The alleged adjustments of plots, as claimed by the petitioners, were, in fact, done at the time when the scheme of allotment of residential plots in Gomti Nagar Extension, Part 1-A was in existence and the impugned decision to cancel the allotment of plots was not taken. As such, we are of the considered opinion that the alleged adjustment of plots, if any, does not amount to discrimination or unreasonableness.

It is also to be borne in mind that the respondents in their reply have categorically stated that the entire land area under the Gomti Nagar Extension Scheme, Part 1-A has been converted into green belt and no land is available for residential purpose as such there is practical problem with the respondents to adjust the petitioners whose plots have been cancelled due to unavoidable circumstances.

The decision of the Apex Court in the case of HIRA TIKKOO (supra) relied by the counsel for the petitioners is of no assistance to them as in the said judgment it was observed by the Court that all parties involved felt that some amicable solution reasonably acceptable to all can be found out on the basis of mutual discussions and negotiations between the parties of Chandigarh Administration and the consentees and non-consentees. In the said judgment, the Chandigarh Administration had offered plots of smaller size which the Court had directed to be allotted to the consentees and certain other persons.

In the present case, it is the clear stand of the LDA that no land for residential purpose is available under the Gomti Nagar Extension Scheme, Part 1-A and the petitioners cannot be adjusted in other schemes. As such in the facts and circumstances of the case, we are of the considered opinion that no direction can be issued to the respondents to adjust the petitioners by allotting them plots in other schemes of LDA.

Is is also to be noted that under the similar facts and circumstances, this Court in the case of Wing Commander Sanjay Kumar Gaur and Another (supra) challenging the impugned decision/resolution of the LDA Board dated 13.8.2009 has refused to grant any relief holding that the petitioners have no legal right.

However, since the LDA has itself proposed that if such applicants who were allotted plots in Vyom Khand Yojna, Gomti Nagar, Lucknow apply in some multistoried flats schemes, they would be given special weightage including some concession in the matter of payment, interest etc, we feel it appropriate to observe that in case any of the petitioners who had been allotted a plot in Gomti Nagar Extension Scheme, Part 1-A and whose plot has been cancelled in pursuance to the impugned decision/resolution of the LDA wants to apply in a multi-storied flat scheme available with the LDA, he shall apply for the same within one month from today and complete all the formalities required in this regard. The LDA shall consider such applicants giving them priority as per the offer for such persons.

Those petitioners who do not want to apply for a flat as observed above, shall be entitled to get their money refunded with interest at the rate of 12% per annum from the date of deposit.

In case, money has already been refunded to any or some of the petitioners, they would be entitled to get the interest thereof from the date of deposit till the date, the same was actually refunded. The amount of interest along with total deposit, as the case may be, shall be paid to the petitioners, expeditiously, say within a period of one month from the date of receipt of a certified copy of this order.

It is made clear that the observation made above would be applicable only to the parties in the aforesaid writ petitions.

As a result of discussion aforesaid, all the writ petitions stand dismissed.

Keeping in view the peculiar facts and circumstances of the the case, we make no order as to costs which shall be borne by the parties as incurred by them.