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Court No. 1
Writ Petition No. 7317 (MB) of 2010
Mohammad Shamshad Alam
Vs.
State of U.P. and others.
Hon'ble Pradeep Kant, J.
Hon’ble Ritu Raj Awasthi, J.
Heard Sri Aftad Ahmad, counsel for the petitioner, Sri D.K.
Upadhyaya for Lucknow Development Authority and Sri Sandeep Dixit for
private respondents.
The petitioner, by means of this writ petition, challenges the auction
of the shops, namely, shops no. 16, 17, 18, 19 and 32, situate at A-Block,
Kanchan Market, Chowk, Lucknow, in favour of private respondents, on the
ground that the aforesaid shops were allotted to him and that he is prepared
to deposit the entire amount towards sale consideration, not only on the
price which was fixed at the time of allotment but even at the present
market rate.
The petitioner’s case is that in pursuance of the allotment order
issued by the Lucknow Development Authority, he was delivered
possession by the Lucknow Development Authority and since he is in
possession, right from the year 2002, he cannot be forcibly evicted on the
pretext that the shops have been auctioned in favour of private respondents.
Sri D.K. Upadhyaya, learned counsel for the Lucknow Development
Authority (LDA), on the basis of instructions received and the record of the
petition itself, has raised an objection regarding maintainability of the writ
petition and has also questioned the conduct of the petitioner in approaching
this Court with an absolutely incorrect and false story.
In brief, a decision was taken by the LDA to allot the aforesaid
shops in favour of Mohammad Shamshad Alam i.e. the petitioner, which
decision was duly communicated vide letter dated 2.7.02. The aforesaid
communication said that sanction/approval has been granted by the Vice
Chairman to allot the aforesaid shops in favour of the petitioner and,
therefore, 25% amount, namely, an amount of Rs. 1,39,760/- be deposited
by 15.7.02 and rest of 75% amount be deposited in eight, three monthly
instalments. These instalments were of Rs. 1,09,050/- each, wherein the
entire payment was to be made by July, 2004. The shops were to be
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transferred/allotted on cash down basis.
Admittedly, the petitioner did not deposit the amount, as directed in
the letter dated 2.7.02, and had deposited only an amount of Rs. One lakh.
The petitioner’s case is that he has deposited a sum of Rs. Five lakhs
through a bank draft in the United Commercial Bank, upon which an
enquiry was made and the bank informed that no such bank draft has been
deposited in the bank. This amount of Rs. Five lakhs, which is said to have
been deposited by the petitioner, was allegedly deposited on 2.6.05, though
under the terms of the aforesaid allotment proposal, the entire instalments
were to be deposited upto July, 2004.
On the aforesaid claim of the petitioners regarding deposit of Rs.
five lakhs through bank draft, an F.I.R. has been lodged.
Be that as it may, the fact remains that the amount of Rs. five lakhs,
which according to the petitioner was deposited by him in favour of LDA, is
not in deposit and was never credited to the account of LDA.
This Court at present is not concerned, as to whether the petitioner
actually has deposited the aforesaid bank draft or not, as it cannot be
ignored that the amount, as was required to be deposited upto July, 2004,
has not been deposited.
Learned counsel for the petitioner also does not dispute the aforesaid
factual position.
Further, there is nothing on record to indicate that the LDA has
delivered possession to the petitioner.
Opportunity was given to the petitioner by the Court to file
necessary document indicating the delivery of possession but despite
affidavit being filed, no such document has been brought on record and
rather, orally it has been stated by the counsel for the petitioner that if the
records are summoned, they would show the document of delivery of
possession, which was done under the orders of the then Vice Chairman.
In effect, there is an averment in the affidavit also, that on deposit of
Rs. One lakh, on the request of the father of the petitioner, the then Vice
Chairman directed the concerned official to hand over the possession of the
shops in question to the petitioner and as such, possession was handed over.
Sri D.K. Upadhyaya rightly points out that it was a case of cash
down transfer of shops. Possession could not have been delivered, unless
the entire amount was deposited and the sale deed had been executed,
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therefore, the assertion that possession was delivered under the directives of
the then Vice Chairman, neither is acceptable nor can be correct.
Sri Upadhyaya has also drawn the attention of the Court to the
information sought by the petitioner himself under Right to Information
Act, wherein he has been informed that records do not indicate that at any
point of time, possession of the shops in question was handed over to the
petitioner. This information has been sought by the petitioner himself,
which has been given under Right to Information Act on 19.6.2010.
It is not the case of the petitioner that this information is wrong or
has wrongly been given.
We also fail to appreciate that if the petitioner was the allottee then
how the father of the petitioner could be the person on whose request
possession could be delivered and we also take notice of the averments
made in the affidavit aforesaid, which if are taken to be correct, would only
mean that the then Vice Chairman ordered the official to hand over the
possession, which means to hand over possession in accordance with law
but such a direction did not permit the petitioner to take possession of his
own, without permission of the LDA. The Vice Chairman, if on
consideration of some facts or request had directed for handing over the
possession, that would only mean that the possession may be delivered
through prescribed procedure but it could never mean that the petitioner
could take possession of the shops in question forcibly and without the
authority letter.
This observation does not mean nor do we approve the aforesaid
theory and even if it is taken to be correct, it would not give a legal right to
the petitioner to continue with the possession.
Learned counsel for the petitioner says that in the aforesaid shops a
typing and language training institute is being run and, therefore, his prayer
for allotment of the shops be reconsidered.
Since the petitioner has taken the possession of his own and if he
had started some business or any activity, without any right and authority,
he has to thank his own stars but equities do not lie in his favour on this
count.
The petitioner right from the very beginning did not follow the terms
under which the shops were to be transferred on cash down basis.
He did not deposit any amount but for Rs. One lakh, which was even
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less than the amount, which was required to deposited initially i.e. Rs.
1,39,760/-. Rest of the instalments which were to be deposited by July, 2004
were also not deposited. The bank draft said to have been given on 2.6.05
was found to be fake, as there is a report of the bank that no such bank draft
was available with the bank. Of course, an F.I.R. has been lodged in this
regard.
As a matter of fact, possession of the shops in question was never
delivered to the petitioner through the agency of LDA but he took
possession of his own and started business activities in the shops.
Apart from this, the petitioner first approached the District
Consumer Forum for the same relief and then filed another writ petition
during summer vacations, in which the auction was not challenged and,
therefore, the writ petition was got dismissed as withdrawn, with liberty to
file a fresh petition; that is how the present writ petition was filed.
The petitioner in the present writ petition in paragraph 21, being
conscious of the fact that in the presence of his claim before the District
Consumer Forum, writ petition would not lie, made a very curious
statement to the effect that ‘leaving all hopes of any action on the part of the
opposite party no. 2 and 3 the petitioner was advised although wrongly to
approach Consumer Dispute Redressal Forum and as advised and being
under the great pressure of losing his only source of income, which the
petitioner has nurtured with his labour and devotion, the petitioner without
any delay approached the Consumer Disputes Redressal Forum but now the
petitioner has asked his counsel there to get the same withdrawn and as
such the petitioner approached this Hon’ble Court by filing 5863 of 2010
(MB); (this is the writ petition which was dismissed as withdrawn, with
liberty to file a fresh petition, during summer vacations).
The claim before the District Consumer Forum has not yet been
withdrawn, rather notices have been issued by the Consumer Forum, as
informed by the counsel for the parties.
Same averment was made in the writ petition filed in June, 2010, as
has been made in the present writ petition also.
The petitioner very well knew that he is pursuing his claim before
the District Consumer Forum but made an incorrect statement before this
Court, as aforesaid, for making the petition maintainable.
The conduct of the petitioner in the matter of taking possession of
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the shops in question without depositing the instalments, as directed under
the order dated 2.7.02 and without getting the sale deed executed, and also
the manner in which he has approached this Court, persuade us to hold that
he has not come with clean hands, besides the fact that he has no locus
standi to challenge the auction, so held.
In fact, the petitioner has used the property of the LDA for such a
long time, with no right, title or interest in the said shops.
We thus, do not find any illegality in the auction so held, as well as
in the order refusing revival of allotment.
We take notice of the argument of the counsel for the private
respondents that rights of private respondents have already matured, as they
are the lawful auction purchaser of the shops in question. The allotments in
favour of private respondents have been made between 2.1.2010 and
29.1.2010 and on deposit of the entire amount, they are entitled to get the
possession of the shops in question.
The petitioner has been in illegal possession of the shops in question
for the last more than eight years. The writ petition, therefore, deserves to
be dismissed with special costs.
However, on the request of the counsel for the petitioner that the
petitioner is prepared to vacate the shops within a period of six weeks, we
refrain ourselves from imposing any cost but do direct that the petitioner
shall vacate the shops in question on or before the expiry of six weeks and
shall hand over vacant premises to the person, authorised by the Vice
Chairman, LDA.
The petition is dismissed.
We, however, clarify that dismissal of this writ petition would not
affect the right of the petitioners, in case any other shops are to be
auctioned, and the petitioner applies for the same, subject to the conditions
of eligibility being fulfilled.
Dated: 5.8.2010
MFA