Court No. - 28 Case :- WRIT - C No. - 45590 of 2008 Petitioner :- Sanjai Srivastava Respondent :- Jeevan Bima Karmachari Grihnirman Sahkari Samiti Ltd.& Other Petitioner Counsel :- Shyam Sunder Tripathy Respondent Counsel :- Somil Srivastava,P.Padia Hon'ble Sanjay Misra,J.
Heard Sri Shyam Sunder Tripathi, learned counsel for the petitioner and
Sri V.S. Sinha, learned counsel for Respondents No.1 & 2.
The dispute in this writ petition is relating to the allotment of Plot No.49
by the respondent’s society to the petitioner.
It is not disputed that a lease deed has been executed by the society of
the said plot in favour of the petitioner whereafter the petitioner has made
constructions on the plot in question.
The challenge in this writ petition is to the order of review dated
17.06.2008 (Annexure No.1 to the writ petition) passed by the Appellate
Authority/Assistant Housing Commissioner/Assistant Registrar, U.P. Awas
Evam Vikas Parishad. Apart from detailing the entire history of the
proceedings of allotment it has been stated that the Secretary of the Society
(Respondent No.3) was father of the petitioner. The main issue decided by the
Appellate Authority is best quoted hereunder:-
mi;ZqDr foospukvksa ds lkFk izdj.k ds eq[; foUnq ;g fd vihykFkhZ
Jh lat; JhokLro dh lnL;rk xg.k djus lac/kh jlhn l0 543 dk
voyksdu fd;k] ftlesa ;g izR;{k dwV jpuk ifjyf{kr gksrh gS fd Jh th0
ds0 JhokLro rRdkyhu lfpo }kjk fuxZr jlhn la0 543 esa vafdr frfFk
24-06-91 ,oa Jh lat; JokLro }kjk izLrqr izfr mRrj ds izLrj 5 esa bl
frfFk ds [k.Mu ds lac/k esa ;g dgk tkuk fd mDr fuxZr jlhn dh frfFk
24-06-95 gSA bl izdkj mDr jlhn ,oa izLrj ds mRrj esa jlhn gsrq vafdr
frfFk dk bl izdkj mYys[k fd;k x;k gS] fd o”kZ dk bdkbZ vad dks ;Fkk
91 ;k 95 dks 1 vFkok 5 ds :i esa dwV jfpr djus dk iz;kl fd;k x;k
gS] D;ksafd Jh osn izdk’k JhokLro }kjk fuxZr jlhn l0 540 cqd la0 6 tks
fnukad 25-01-95 dks Jh th0 ds0 JhokLro }kjk fuxZr dh x;h gS] rFkk
iqufoZyksdu izkFkZuk i= dk vuqyXud 8 ds :i esa i=koyh ij jf{kr jlhn
esa Jh JhokLro us jlhn fuxZr frfFk ,oa vius gLrk{kj ds uhps mfYyf[kr
2frfFk 25-01-95 esa lu ds bdkbZ vad 5 Li”V vafdr fd;k x;k gS ftls
ikWp ds vfrfjDr vU; fdlh vad ds ldsrd ds :i esa ugh tkuk tk
ldrkA bl izdkj fl) gksrk gS fd Jh th0 ds0 JhokLro us jlhn la0
543 dh frfFk ds vadu esa fnukad 24-06-91 lu ds bdkbZ vad dks Li”V
vad u fy[kdj ,slk ladrs d tkucw>d bafxr fd;k gS rkfd vko’;drk
iMus ij ml ldsrduqek bdkbZ vad ds vk/kkj ij mls lu ds :i esa
ngkbZ vad 9 ds lkFk feykdj i<usa ij lu 91 ;k lu 95 dgk tk lds A
Learned counsel for the petitioner has tried to explain the date of receipt
No.543 and justified through his pleadings that it was of the year 1991 as is
demonstrated by Annexure No.1 to the rejoinder affidavit which he claims to
be a receipt issued by the Respondent No.3 on 22.05.1991 accepting the
entrance/membership fee of Rs.10/- from the petitioner with a further
stipulation that a regular receipt will be issued later on. He has referred to the
regular receipt which is dated 24.06.1995. According to him the reference to
receipt of 1991 is with relation to the aforesaid receipt (Annexure No. RA-1)
dated 22.05.1991. Such explanation as has been sought to be given by the
petitioner before this Court appears not to have been taken by him before the
authority below. A perusal of the appellate order which was reviewed by the
impugned order also does not indicate that such receipt dated 22.05.1991 was
pleaded by the petitioner before the authorities. Consequently, since receipt
dated 22.05.1991 is a matter of record of the respondent's society and it has for
the first time seen the light of day in the rejoinder affidavit before this Court
this Court cannot record any finding of fact on that basis. It is, therefore,
appropriate that review/appellate authority may consider the receipt dated
22.05.1991 which the petitioner claims to be acceptance of his membership
fee to the society and is alleged to be available on record of the society and
record its finding of fact about the genuinety or otherwise of the said receipt.
Therefore, without interfering in the impugned order of review the matter
should be and is remitted back to the Appellate Authority which is the
Respondent No.4 to consider this factual dispute raised by the petitioner on
the basis of the aforesaid record and give its finding of fact thereupon.
3
It is made clear that if such finding of fact would require reassessment
of the impugned review order the Respondent No.4, the Appellate Authority
will be at liberty to do so. However, if the findings recorded on the basis of the
new documentary evidence which has been discovered now has no affect on
the impugned review order, the finding so recorded may be placed on record
of the impugned order.
The writ petition stands disposed of as such with liberty to the parties.
No order is passed as to costs.
Order Date :- 26.7.2010
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