Court No. - 2
Case :- MISC. BENCH No. - 6232 of 2010
Petitioner :- Wing Commander Sanjay Kumar Gaur And Another
Respondent :- State Of U.P. Through Principal Secy.Housing And
Urban Lko.
Petitioner Counsel :- Vaibhav Raj
Respondent Counsel :- C.S.C.,D.K.Upadhyay
Hon'ble Uma Nath Singh,J.
Hon’ble Devendra Kumar Arora,J.
Heard learned counsel for parties and perused the pleadings.
It appears that a Housing Scheme, known as ‘Vyom Khand Yojna’,
Gomti Nagar, Lucknow, was cancelled on account of a Public
Interest Litigation as the area was alleged to be falling in a green
belt. Accordingly, the scheme was cancelled and the applicants
were refunded the deposits with interest. The petitioner is one of
such applicants who has prayed for issuance of
(i) ” a writ, order or direction in the nature of certiorari for quashing the
resolution/decisions of the LDA board dated 13.08.2009 as far as it is related to
concellation of allotment of plot of petitioner by summoning the same from
opposite parties;
(ii) a writ order direction in the nature of mandamus commanding the opposite
parties to revive the Vyom Khand Yojna and to execute the sale deed/registry in
favour of the petitioners’ for their respective plots allotted in the year 2005 as
per the condition of the brochure and as soon as possible or within stipulated
time frame as this Hon’ble court may deem fit and proper;
(iii) a writ, order or direction in the nature of mandamus commanding the
opposite parties specially the LDA not to take any action for enforcement and
implementation of the impugned resolution/decision dated 13.08.2009, and
(iv) any other writ, order or direction which this Hon’ble Court may deem fit
and proper in the circumstances of the case.”
As the Housing Scheme itself was cancelled and the deposits were
refunded with interest, learned counsel for LDA, Sri.D.K.Upadhyay
while placing relilance on a judgment of the Apex Court reported in
(1994) 4 SCC 42,Ghaziabad Development Authority Vs. Delhi
Auto & General Finance Private Ltd and Others contended that
there would be no legitimate expectation on the part of applicants to
get allotment under some other schemes also.
Paras 8, 10 and 11 of the judgment, being relevant are reproduced
here under:-
8. It is difficult to appreciate how the change 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
under Section15 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.
10.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 under Section 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 requirments 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.
11.Before dealing with the remaining submission, it
would be appropriate to refer to certain provisions
of the Uttar Pradesh Urban Planning &
Development Act, 1973 and the National Capital
Region Planning Board Act, 1985( referred
hereafter as “NCR Act”).
However, Sri D.K.Upadhyay also submitted that the Lucknow
Development Authority has proposed, that if such applicants who
had applied in ‘Vyom Khand Yojna’Gomti Nagar, Lucknow apply
in some Multi Storied Flats Scheme, they would be given special
weightage including some concession in the matter of payments.
We appreciate the gesture, shown by the authority, however, in
view of the judgment of Supreme Court(supra), since the petitioners
have no legal right, we are not inclined to grant the relief as prayed
for.
Thus, this writ petition is disposed of, while noting the statement of
Sri D.K. Upadhyay, learned counsel for the LDA.
Order Date :- 3.7.2010
Shahnaz