ANIL KUMAR BANSALversusSTATE OF U.P. THRU SECY. U.P. AWAS AND VIKAS PARISHAD AND ANR.

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                       WRIT - C No. - 31335 of 2017

Anil Kumar Bansal
                                                          .....Petitioner(s)
                                  Versus

State Of U.P. Thru Secy. U.P. Awas And Vikas
Parishad And Anr.                                       .....Respondent(s)

Counsel for Petitioner(s)     : Anoop Kumar Srivastava, Mahender,
                                Mohan Srivastava
Counsel for Respondent(s)     : Ajit Singh, Nipun Singh, S.C., Sunil
                                Kumar Misra

Court No. - 21
            HON'BLE MAHESH CHANDRA TRIPATHI, J.
            HON'BLE KUNAL RAVI SINGH, J.

1. Heard Sri Anoop Kumar Srivastava, learned Senior Counsel assisted by
Sri Mahendra Yadav, learned counsel for the petitioner, Sri Ambrish
Shukla, learned Additional Chief Standing Counsel for the State
respondents and Sri Pradeep Kumar Srivastava, holding brief of Sri Ajit
Singh Rana, learned counsel representing U.P. Awas Evam Vikas
Parishad.

2. The instant writ petition has been preferred praying inter alia for
following relief :-

     "i. Issue a writ, order or direction in the nature of certiorari
     quashing the order dated 10.02.2017 passed by the Housing
     Commissioner/respondent           no.2,       rejecting      the
     application/representation of the petitioner;

     ii. Issue a writ, order or direction in the nature of mandamus
     commanding the respondent no.2 to re-consider the case of the
     petitioner on its own merit, giving due consideration to the
     provisions of Regulation 33(9) of U.P. Awas Evam Vikas
     Parishad Regulations ;

     iii. Issue a writ, order or direction in the nature of mandamus
     commanding the respondent to consider the allotment of plot
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     no.493/6, situated as Sector 6 of Shastri Nagar Yojana, Meerut
     and to hand over the possession to the petitioner;

     iv. Issue a writ, order or direction in the nature of mandamus
     commanding the respondents to apply the rates of plot
     no.493/6, which was applicable on the date of allotment i.e.
     03.12.1999, in view of the provisions given in the clause 8.9
     given in Mulyankan Nirdeshika (costing directives) of the
     petitioner and also in view of the office order dated 04.09.1986
     as also because the adjacent plot no.49/6, allotted to other
     person by the respondent parishad in the year 2004, at the rate
     applicable on the date of allotment i.e. 03.12.1999."

3. The brief matrix of the case is that in the district Meerut, certain plots
were advertised by the U.P. Awas Evam Vikas Parishad (hereinafter
referred to as 'Parishad') under the Tatkal Scheme. The petitioner along
with some other applicants had applied for allotment of a plot and they
made an application in the year 1999. Under Regulation 16(2) of the
Regulation framed by the Parishad, the plots were to be allotted on first
come first serve basis and under the said Regulation, preference could be
provided to the displaced persons, government employees, employees of
the Parishad and other specified categories while making allotment under
the Tatkal Scheme. Once the Parishad had not settled the allotted plot in
favour of the petitioner, few applicants had approached to this Court by
preferring Writ C No.52450 of 1999, 'Sunil Kumar and others Vs. Awas
Ayukt Evam Sachiv, U.P Awas Evam Vikas Parishad, Lucknow and
others', and the Division Bench of this Court vide judgment and order
dated 18.10.2005 had allowed the writ petition and had directed the
Housing Commissioner to consider all the applications made under the
Tatkal Scheme of the Parishad afresh and pass a fresh order of allotment
within a month. The judgment and order passed by the Division Bench
dated 18.10.2005 was subjected to challenge before the Apex Court in
Civil Appeal No.7488 of 2011 arising out of SLP (C) No.7477 of 2006,
'Avas Ayukt Evam Sachiv and others Vs. Sunil Kumar and others'.
Various other civil appeals were also tagged with the leading one and vide
judgment and order dated 24.08.2011, the Apex Court had not approved
the Tatkal Scheme initiated by the Awas Evam Vikas Parishad and
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proceeded to observe, which are quoted hereinbelow :-

     "Leave granted.

     Heard Counsel for the Parties.
     allotment (applicant in Civil Appeal Nos. 7489, 7490, 7491 and 7492 of
     2011 arising out of SLP(C) No. 7477, 7479, 7480, 10560 and 11143 of
     2006 (respondents before the High Court) Under the Tatkal Scheme ws
     bad and illegal cannot be faulted. But the High Court was clearly in error
     in asking the appellants, U.P. Avas Evam Vikas Parishad and its officials
     to reconsider all the applications for allotment of plots in the Jagriti
     Vihar Yojna No. 6, Meerut Under the Tatkal Scheme. This is for the
     simple reason that the Tatkal Scheme adopted by the Parishad was
     inherently bad and illegal since it gave unfettered and arbitrary powers to
     the authority to make allotment of plots on subjective considerations.

     We are further informed that after the order of the High Court, the Tatkal
     Scheme has been abolished by the parishad.,

     For the aforesaid reasons, the direction of the High Court to the parishad
     and its Officials to reconsider all the applications made under the Tatkal
     Scheme for allotment of plots in the Jagriti Vihar Yojna No. 6, Meerut,
     cannot be given effect to and the impugned direction of the High Court is,
     accordingly, set aside.

     Coming now to the allotments already made in favour of the four
     appellants in the aforementioned four Civil Appeals, it is true that the
     alllotments weew not proper and v alid, but the fact cannot be overlooked
     that the allotments were made in the year 1999 and possession of the
     respective plots were also given to the allottees. Houses have since been
     constructed on the allotted plots, which are fully occupied.

     In those circumstances, it would not be proper and just to have the
     appellants evicted from the land and get the houses demolished. for the
     reasons as stated above, the order of the High Court has to be set aside.
     ordered accordingly.

     The Civil appeals are allowed in the aforesaid terms.
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     SLP (C) Nos. 22172 and 14473 of 2009

     In this case, though allotments were made under the Tatkal Scheme in
     favour of the petitioners, possession of the allotted plots was not handed
     over to them. It is noted in the connected appeals that the Tatkal Scheme
     adopted by the Parishad was inherently bad and illegal as it gave
     unfettered and arbitrary powers to the concerned authority to make
     allotment of plots on a subjective basis. It is further to be noted that after
     the order of the High Court, the Tatkal Scheme has been abolished by the
     parishad.

     In those facts, we are not inclined to the interfere in favour of the
     petitioners to whom plots were allotted under the Scheme but possession
     of those plots was not given to them by virtue of the stay orders passed by
     the High Court.

     The Only Course, thus, left open for the parishad is to dispose of the
     remaining plots under the erstwhile Tatkal Scheme by public auction, in
     accordance with the Rules of the parishad. If the petitioners or any other
     applicant in the Tatkal Scheme had made any deposits, they would be
     entitled to its refund with simple interest @ 9% per annum. In case
     application for refund are made, the refund should be made without any
     undue delay.

     The Special leave petitions are dismissed. As consequence, the writ
     petition (C.M.W.P. No. 54908/1999 and C.M.W.P. No. 53061/1999 and
     dismissed.

     C.M.W.P. No. 53061/1999 filed by the petitioners in the High Court also
     stand dismissed."

4. Sri Anoop Kumar Srivastava, learned Senior Counsel, in this backdrop,
submits that the petitioner, who was an ex-employee had initially applied
for plot and later on, Civil Appeal Nos. 22172 and 14473 of 2009 was
allowed and further the Apex Court had directed the Parishad to return the
deposited amount with a simple interest at 9% per annum to the applicants
in whose favour the plots were allotted. He next submits that later on, the
petitioner/applicant had moved a modification application of a judgment
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and order dated 24.08.2011 in SLP(C) No.14473 of 2009 wherein the
applicant/petitioner had relied upon the Regulation 33 of the U.P. Awas
Evam Vikas Parishad Regulations which provides for maintaining a
seniority list for allotment of plots with the provision that no khata
holders (land holders) shall be allotted the land more than 25% of area of
his acquired land further in case, the percentage of such displaced person
as per income limit comes to less than one unit in the category of the
property, even then one unit shall be mentioned qua the same. For ready
reference, Regulation 33 is quoted hereinbelow :-

     "33. Seniority List - Seniority List of reserved categories shall be as
     follows:


     (1) Displaced
     (a) In substitution top most priority shall be given to the displaced
     persons under the scheme provided that before the last date of making
     application for substitution they have deposited the prescribed advance
     amount in the Account of the Board. Provided also that names of the
     displaced person, his wife/husband, minor children should not find
     mentioned of the plot/flat in the said city and should not own more than
     one plot/flat in other cities of the State and before or subsequent to the
     making of application should not possess property beyond the prescribed
     limit under any law in force. Provided also that no Khata holder
     (Landholder) shall be allotted land more than 25% of area of his
     acquired land. In case percentage of the said displaced person as per the
     income limit comes to less than one Unit in the category of the property
     even then one Unit shall be mentioned shown.


     (2) Cooperative Housing Societies


     (3) Scheduled Caste


     (4) Scheduled Tribes


     (5) Backward caste


     (6) Freedom Fighters and MLAs/MPs
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     (7)Security personnel

     (8) Employees of Government of Uttar Pradesh and Blind & Physically
     handicapped

     (9) Members and employees of the Parishad"

5. Learned Senior Counsel appearing for the petitioner has placed reliance
on the modification application dated 27.09.2011 which is also appended
as Annexure-5 wherein the petitioner/applicant had taken categorical
stand and shelter of a provision of Regulation No. 33 of the Regulations
framed by the Parishad and consequently, the Apex Court passed an order
on 13.07.2011 wherein the interim application was permitted to be
dismissed as withdrawn and liberty was accorded to the
petitioner/applicant to make a representation before the U.P. Awas Evam
Vikas Parishad, the same was directed to be considered on its own merits.



6. He next submits that in spite of the categorical direction issued by the
Apex Court, instead of deciding the same on merit, considering the
Regulation 33, the respondent Authority, in an arbitrary manner, had non-
suited the claim of the petitioner on the basis of judgment and order dated
24.08.2011 passed by the Apex Court in Civil Appeal No.14473 of 2009.
He further apprised to the Court that till date, the Authority has not settled
the plots on the spot and the same is still vacant. He further submits that at
this stage, definitely, once the Apex Court has rejected the Tatkal Scheme
but leave was given to the petitioner to press the reliefs in pursuance of
Regulation No. 33 before the Authority who had dismissed the case in an
arbitrary manner, such situation impelled the petitioner to invoke the writ
jurisdiction.

7. Per contra, learned counsel appearing for U.P. Awas Evam Vikas
Parishad has resisted the relief and submits that the Tatkal Scheme was
subjected to challenge before the Apex Court wherein, the Court has
categorically observed that the same was bad and illegal but to balance
the equity with regard to certain allottees who already had constructions
on the spot, no eviction order was passed but for rest of the allottees, the
Authority was directed to refund the amount with interest. Learned
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counsel next submits that since the Apex Court had disapproved the
Scheme and only a direction to return the deposited amount along with
interest was passed, the Scheme itself was faulted. Later on, the Parishad
had also cancelled the Scheme, therefore, no other relief can be extended
at this stage under the said Scheme to the petitioner (applicant). The
decision is sustainable in the eyes of law as the same is in consonance
with the judgment and order passed by the Apex Court dated 24.08.2011.
He further submits that no such relief can be accorded to the petitioner at
this stage in the light of the judgment passed by the Apex Court, however,
it is always open to the parties to press the relief for return of the amount
as per mandate of the Apex Court.

8. We have heard the rival submissions of the parties and perused the
material available on record.

9. So far as factual and legal aspects are concerned, the same are not
disputed. The Apex Court had deprecated the Tatkal Scheme in its
judgment passed in Civil Appeal No.14473 of 2009. Later on, the
petitioner had moved an application for modifying the judgment and order
dated 24.08.2011 in the light of Regulation 33 which provided for
maintaining a seniority list for allotment of plots. Now, at this stage, the
claim has been set up on the basis of the relief given against the
modification application which was pressed before the Apex Court. We
find that the Apex Court while considering the modification application
had given a leverage to the petitioner to make a representation before the
U.P. Awas Evam Vikas Parishad which would be considered on its own
merit, however we find that instead of considering the claim of the
petitioner in the light of modification application and the relevant
regulation which was pressed before the Apex Court, the respondent
authority has erred by relying upon the earlier judgment passed by the
Apex Court dated 24.08.2011. The Apex Court had entertained the
modification application and had given a leverage to the petitioner to
make a representation before Awas Vikas Parishad wherein the petitioner
had claimed that in the modification application, he had set up the case
under the Regulation 33 of the Regulation which provides that the
seniority list has to be prepared by the Authority. Regulation 34 provides
procedure for an auction and Regulation 33 deals with maintenance of
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                                    reserved category list. No doubt, the petitioner being an ex-employee,
                                    finds place at the bottom of the said category but anyhow, the said aspect
                                    has not been considered by the Authority while passing the order
                                    impugned. As such, we find that the order impugned is per se
                                    unsustainable and is, accordingly, set-aside.

                                    10. With the aforesaid observations, the instant writ petition stands partly
                                    allowed. A direction is issued to the respondent to consider the claim of
                                    the petitioner in the light of Regulation 33 of the Parishad in accordance
                                    with law. We expect that the Authority may proceed in accordance with
                                    law but certainly after taking into account Regulations 33 and 34 of the
                                    Regulation framed by the Parishad.



                                                    (Kunal Ravi Singh,J.) (Mahesh Chandra Tripathi,J.)
                                    February 13, 2026
                                    Sumit S




Digitally signed by :-
SUMIT SRIVASTAVA
High Court of Judicature at Allahabad