Krishna Kumar Mishra and Another vs State of U.P. and Another

R.K. Agrawal, J.—By means of the present writ petition under Article 226 of the Constitution of India, Krishna Kumar Misra and Vidya Nand Tripathi, two Petitioners before us, have prayed for the following reliefs :

(I) Issue a suitable writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 29.9.2008 (Annexure-16 to the writ petition).

(II) Issue a suitable writ, order or direction in the nature of mandamus commanding the Respondent No. 2 to put the Petitioners in actual physical possession of the plots allotted to them as far back as in the year 1991 after getting its title corrected.

(III) Issue a suitable writ, order or direction in the nature of mandamus commanding the Respondent No. 2 not to permit to raise any construction on the plots of the Petitioners.

(IV) Issue a suitable writ, order or direction making a declaration that the Petitioners are entitled to the damages from Respondent No. 2 for keeping them away from the property for the long 18 years after executing sale deed and pocketing sale consideration even though its title was effective.

(V) Issue any other suitable writ, order or direction which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.

(VI) Issue an order awarding costs.

The Allahabad Development Authority (hereinafter referred to as "the A.D.A.") has been constituted under the U. P. Urban Planning and Development Act, 1973 to promote and secure the development of the area according to plan and for that purpose the A.D.A. shall have power to acquire, hold, manage and dispose of land and other property, to carry out building and other necessary operations. The A.D.A. has been enjoined with the duty to provide developed plots, sites and houses to needy persons in a planned way. In the year 1991 the A.D.A. published two Housing Schemes known as Kalindi Puram Housing Scheme and Shringber Puram Housing Scheme. Wide publicity was given to the aforesaid Schemes. The Petitioners with an intention to have a roof over their head and of their family, applied for a 40 sq. metre plot each in the Scheme known as Kalindi Puram Scheme. It appears that there were large number of applicants and draw of plots was held by lottery. The Petitioners were allotted one plot each in the aforesaid Scheme vide Chairman''s letter dated 20.11.1991. On account of unforeseen circumstances the development work at the site was not undertaken. After more than ten years the sale deed was executed on 22nd December, 2004 by the A.D.A. in favour of the Petitioners in respect of two plots viz. D.1-446 and D.1-457 each measuring 50 sq. metre. Formal possession of the plot on papers were given but when the Petitioners went to the site to take actual physical possession and start construction they faced stiff resistance from the actual owners of the land claiming that the aforesaid two plots have not been acquired as they did not form part of the acquisition proceedings. The Petitioners approached the A.D.A. for handing over actual physical possession but their efforts failed. The Petitioner made an application under the Rights of Information Act but no action was taken, whereupon they filed an appeal before the appellate authority, i.e., the Vice Ghairman of the A.D.A. but no action was taken by the appellate authority. Thereafter, the Petitioners approached the State Information Commission by means of an appeal registered as Appeal No. 913 (A) /06. The Information Commissioner took cognizance on the said appeal and issued notice to the parties to appear before him. The Information Commissioner directed the A.D.A. vide order dated 15th February, 2007 to give actual physical possession to the Petitioners on 22nd February, 2007. The possession was given on 22nd February, 2007 but when the Petitioners wanted to start work at the site of the plots the co-owners came at the plot and stopped the construction work which was duly informed to the A.D.A. vide letter dated 26.2.2007. It transpired that the plots which have been allotted to the Petitioners have not actually been acquired and the A.D.A. had no right, title or interest in the said plots. The Information Commissioner disposed of the appeal vide order dated 23.4.2007 with a direction to the A.D.A. to take steps to acquire the remaining two biswas land and also to ensure that the allottees get right of actual enjoyment of the property in dispute. No action was taken by the A.D.A. for acquiring the remaining two biswas of land. The actual owners of the land in question started construction work and when this fact was brought to the notice of the A.D.A. it did not take any action.

In nutshell even though the A.D.A. had executed the sale deed which have also been registered for Plot Nos. D. 1-446 and D. 1-457 in the Kalindi Puram Housing Scheme in favour of the Petitioners but the A.D.A. did not have the title of the said land nor had any right or interest to transfer the same to the Petitioners. Waiting for a sufficient long time and the Petitioner having been duped by the A.D.A. with their hard earned money they have approached this Court seeking the aforementioned reliefs. We may mention here that vide letter dated 29th September, 2008 the Petitioners were asked by the A.D.A. to intimate their choice from amongst the available plots. The Petitioners, having not found suitable plots, did not accept the request and instead approached this Court.

In the counter-affidavit the fact that possession of the said two plots have not been acquired, has not been disputed. The submission on behalf of the A.D.A. is that they are prepared to provide alternative plots to the Petitioners.

We have heard Sri Subodh Kumar, learned Counsel for the Petitioner and Sri Ashwani Kumar Mishra, learned Counsel appearing for the A.D.A.

The matter was taken up on 30th March, 2010 and after going through the records and averments made in the pleadings exchanged between the parties, the Court in order to ensure amicable settlement between the parties orally observed that as the Petitioners have been allotted the aforesaid plots in the year 1991 and sale deed has also been registered when in fact the A.D.A. has neither acquired the said plots nor has any right, title or interest over the said plots, alternative plots of 100 sq. metre, or constructed house on 50 sq. metre be provided to each of the Petitioners towards full and final settlement of their claim for the reason that if the actual possession of the land would have been given in the year 1991 to the Petitioners they would have constructed the house over it and in these 20 years the cost of construction have gone up many fold. The matter was adjourned on 31st March, 2010 and thereafter on 1st April, 2010 on the request of the learned Counsel for the A.D.A. Thereafter on his request the matter was again adjourned for three weeks. The matter was taken up on 26th April, 2010 when the Joint Secretary of the A.D.A., who was present in the Court, was directed to take the Petitioners alongwith him to get the plots selected and submit a report by the next date, i.e., 27th April, 2010. The Court was informed that alternative plots which were being offered to the Petitioners were of 50 sq. metre and that too at remote and undeveloped place which the Petitioners are not inclined to accept. The talks of settlement have failed. The Court is, therefore, left with no other alternative but to proceed and decide the matter on merits.

Learned Counsel for the Petitioners submitted that the Petitioners have deposited the amount long back and the sale deed had also been executed by the A.D.A. without there being any right, title or interest vested in the A.D.A. It is a clear case of duping the innocent citizen and depriving them of their hard earned money. Sri Subodh Kumar further submitted that the money deposited by each of the Petitioners be returned alongwith the damages as there is no possibility of getting the plots in lieu thereof. He submitted that the A.D.A. is charing 18% compound interest from the defaulters and the Petitioners would be satisfied if the A.D.A. returns the entire amount of sale consideration, expenses incurred by them in getting the sale deed registered alongwith interest @ 18% per annum with quarterly rest.

Sri A.K. Misra learned Counsel appearing for the A.D.A. submitted that the A.D.A. would return the entire amount alongwith interest as applicable on refund of amount to unsuccessful candidates.

We have given our thoughtful consideration to the pleas raised by the learned Counsel for the parties. We are pained to note that such an instrumentality of the State like A.D.A. which has been enjoined upon the task to develop plots, sites and houses and provide to needy persons in a planned way has acted in such an irresponsible manner, thus equating itself with the land mafias, who without there being any right, title or interest in the land are selling such land on papers to innocent citizen of this country. The present case is an example of the irresponsible behaviour of the A.D.A. as instead of settling the matter amicably it has acted in a manner to lower down its image by allotting the plots on papers without there being any right, title or interest on the aforesaid plots. Such a situation has now to be dealt with in the court of law.

As the Petitioners have not been offered suitable plots in lieu of the plots which have been allotted and conveyed through the registered sale deed executed by the A.D.A., we deem it fit and proper to direct the A.D.A. to return the entire amount of sale consideration together with expenses incurred for registration of the plots. The A.D.A. shall also pay interest @ 18% per annum with quarterly rest on the said amount from the date the Petitioners have deposited the amount till its actual payment. The entire amount shall be paid by the A.D.A. by an account payee bank draft and be sent to the Petitioners address by registered post with acknowledgment due within one month from today. As the Petitioners have suffered a lot in making efforts to get the possession over the plot in question and have also undergone mental harassment, taking into consideration the entire facts and circumstances of the case we are of the considered opinion that the A.D.A. has exposed itself to pay exemplary cost which we assess to Rs. 10,000 to be paid to each of the Petitioners within one month.

The writ petition stands allowed to the extent indicated above.