REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4020 OF 2010

U.P. HOUSING & DEVELOPMENT BOARD & ANR. APPELLANT(S)

VERSUS

NAMIT SHARMA RESPONDENT(S)

O R D E R

Heard Shri Vishwajit Singh, learned counsel

appearing for the appellants and Dr. Manish Singhvi,

learned senior counsel appearing for the respondent.

This appeal has been filed against the order dated

07.07.2009 of the Division Bench of the Allahabad High

Court, Lucknow Bench in Writ Petition No.3315(M/B) of

2005, by which order the writ petition filed by the

respondent has been disposed of with a direction to

opposite party to the writ petition to allot one plot to

the respondent against the Registration No.L.W/P-2951(6).

Appellant aggrieved by the said judgment has come up in

this appeal.

The brief facts necessary to be noticed for

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deciding this appeal are:

One Shri M.L. Sharma, the grandfather of the

respondent got registration in his name in a scheme for

HIG plot in the Housing Scheme of the appellant. On

16.09.1982 his application was registered with

Registration No.L.W./P-2951(6). Shri M.L. Sharma wrote a

letter to the appellant on 15.09.1983 that he has

nominated his grandson i.e. respondent as his nominee and

his mother Smt. Sudha Sharma as his guardian till he

attains majority. Shri M.L. Sharma died on 09.06.1984.

The Parishad sent a letter to Shri M.L. Sharma to deposit

an additional amount of Rs.3,000/- as registration money

due to escalation in price. However, pursuant to

aforesaid request no additional amount was deposited

rather Smt. Sudha Sharma wrote a letter to Parishad to

refund the entire registration amount. Parishad wrote a

letter on 22.08.1988 to Smt. Sudha Sharma to send the

requisite documents i.e. Death Certificate etc. to

complete the formalities necessary for obtaining a refund

of the registration amount. The respondent wrote a letter

dated 26.08.1997 to the Parishad requesting Parishad to

transfer the Registration No.L.W./P-2951 from his

grandfather's name to his name and allot him a H.I.G.

plot in the Housing Scheme. The father of the respondent

Dr. N.N. Sharma had also applied in the Housing Scheme

and was allotted a plot. A Government order dated

11.10.2002 was issued providing guidelines for refund of

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registration money of unsuccessful applicants under

various housing schemes of the State. In the Government

order it was further directed that old registration of

unsuccessful candidates would not be renewed under any

circumstances and the unsuccessful candidates would have

to apply afresh for registration. In compliance of the

Government order dated 11.10.2002, the Parishad has also

issued an advertisement in the newspaper dated 14.03.2003

to that effect and letter dated 14.09.2004 was also

issued to the respondent regarding deposited amount

against Registration No.L.W./P-2951(6). The respondent

was communicated that registration is not valid and after

completing the formalities mentioned therein he may seek

refund of registration amount. The respondent wrote a

letter dated 31.12.2004 wherein he reiterated his request

for transfer of registration in his name and allot a

plot. In the letter respondent mentioned that House

No.1/41, Vikas Nagar is lying vacant and the said house

should be allotted to him against the registration of his

grandfather. A recommendation was also made on the letter

dated 31.12.2004.

On 18.03.2005, the Housing Commissioner refused to

accept the request of respondent-Namit Sharma to transfer

the registration of his grandfather Shri M.L. Sharma in

his name. On 21.05.2005 another letter was issued by the

office of the Parishad to the respondent informing that

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by virtue of Government order dated 11.10.2002 the

registration in the name of his grandfather Shri M.L.

Sharma is not there, hence, it is not possible to make

any allotment of plot. It was further communicated that

amount deposited can be taken back and respondent was

intimated that if you are interested in getting any

property of the Parishad, you can participate in the

allotment process against specific property published

from time to time after depositing required token money

against the said property.

The respondent filed a Writ Petition No.3315/2005

praying for quashing the order dated 18.03.2005 of the

Housing Commissioner and issue a writ order in the nature

of mandamus commanding the respondent to consider and

allot a vacant plot after transferring the registration

in the respondent's name. The Writ Petition No.3315/2005

filed by respondent was disposed of by the High Court by

the impugned order against which this appeal has been

filed. The operative portion of the High Court's order is

as follows:

"We, therefore, dispose of the writ petition

with a direction to the opposite parties to

allot one plot to the petitioner against the

Registration No.L.W./P-2951(6) within six

weeks from the date a certified copy of this

order is produced after completing the

required formalities by the petitioner.

Shri Vishwajit Singh, learned counsel appearing for

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the appellants/Parishad submits that the High Court

committed error in directing allotment of plot to the

respondent. Neither the registration, which was initially

in the name of respondent's grandfather, was valid nor

there was any registration in favour of the respondent or

any allotment of plot in favour of respondent or his

grandfather so as to give any right to claim allotment. It

is submitted that the respondent was communicated that

registration is not valid and by virtue of Government

order dated 11.10.2002 all old registrations were made

ineffective permitting the applicants to get refund as per

the procedure prescribed. It is submitted that respondent

was communicated more than once that the registration of

his grandfather is now no longer valid and he can obtain

the refund of the deposited amount and may apply afresh

registration and participate in the process of allotment.

Neither the respondent ever get registered afresh nor

participated in the process of allotment. The High Court

committed error in directing for allotment in favour of

the respondent to whom neither the Parishad ever allotted

any plot nor any right was claimed by the respondent for

allotment. It is submitted that the allotment of plots in

the scheme, in which the respondent was claiming, were all

by draw of lots and the respondent's grandfather was never

alloted any plot at any point of time. It has also been

submitted that one HIG house was alloted to the father of

the respondent, namely, Dr. N.N. Sharma, the request of

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transfer the allotment with another plot did not

materialize as he did not fulfill the certain conditions

mentioned in the letter permitting transfer. The plot

No.1/41 stood alloted to the father of the respondent, who

had been handed possession.

Dr. Manish Singhvi, learned senior counsel appearing

for the respondent, refuting the submissions of learned

counsel for the Parishad contends that firstly the order

passed by the High Court was on the basis of consent given

by the appellant to allot a plot to adjust against 19

plots which were vacant hence the appellant was precluded

from challenging the order of the High Court. He further

submits that in favour of the respondent there was already

allotment by the Housing Commissioner in exercise of power

under Rule 48 which order was passed on the application of

respondent on 31.12.2004. He submits that the Housing

Commissioner has power, in special circumstances, to pass

any order and in exercise of power order was passed on

31.12.2004, hence, the High Court's order does not suffer

from any error.

We have considered the submissions of learned

counsel for the parties and perused the record.

From the facts which have been brought on the record

there is no dispute that initially the grandfather of the

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respondent Shri M.L. Sharma deposited an amount of

Rs.2000/- as registration money and he was allotted a

registration bearing Registration No.L.W./P-2951(6) on

16.09.1982. Before the death of Shri M.L. Sharma he wrote

a letter to the Parishad nominating his grandson i.e.

respondent for his registration. There is material on

record to indicate that after the death of Shri M.L.

Sharma further additional amount towards registration as

demanded was paid. The Parishad wrote a letter to the

mother of the respondent to send requisite documents for

obtaining refund. The State Government has issued

Government order on 11.10.2002 under which State

Government issued guidelines for refund of registration

money of unsuccessful applicants. The copy of the

Government order has been brought on the record as

Annexure P-7.

Paragraphs 2 and 3 of the Government order are

relevant which are to the following effect:

"2. I have been directed to inform you that

with a view to make the aforesaid arrangement

more transparent, it has been decided after

due consideration that the registration money

of the unsuccessful candidates must be

returned to their Bank account through

account payee cheque/bank draft or other

prevalent procedures within 15 days from the

date of lottery draw by all the Development

Authorities and the Avas Vikas Parishad. In

case of non-refund of the registration money

within 15 days, the interest payable on the

refundable amount would be recovered from the

salary of the officer/employee responsible

for the delay. The concerned officer/employee

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would be held fully responsible for the delay

in refund.

3.In this connection, it has also been

decided that the unsuccessful candidate will

have to be applied open for a new scheme and

the old registration of such unsuccessful

candidates would not be renewed under any

circumstances."

After the aforesaid Government order, communication

was also issued to the respondent on 14.09.2004 informing

that Registration No.L.W/P-2951(6) was not valid and

therefore cannot be transferred to him. The respondent was

requested to complete the formalities for refund of the

deposited amount towards registration. The another order

which has been brought on the record by the appellant is

the letter dated 21.05.2005 issued by the Estate Officer

where respondent was again informed that the Registration

No.LW/P-2951(6) of your grandfather is not valid

registration and it is not possible to transfer the

registration in the name of respondent. The writ petition

was filed thereafter by the respondent being Writ Petition

No.3315/2005.

There is nothing on record to indicate that at any

point of time any allotment of plot was made in favour of

Shri M.L. Sharma, the grandfather of the respondent. Only

Shri M.L. Sharma got himself registered on 16.09.1982 with

Registration No.L.W./P-2951(6) which made him eligible to

participate in the process of allotment. Learned counsel

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for the appellant has submitted that the allotment was

made only by draw of lots. Paragraphs 2 and 3 of the

Government order dated 11.10.2002, already extracted

above, also indicate the draw of lots for allotment. There

being no draw of lots in favour of Shri M.L. Sharma, the

grandfather of the respondent, there is no question of

allotment of any plot to the respondent.

Now we come to the submission of Dr. Manish Singhvi

that the order of the High Court is based on the consent

of the appellant, hence appeal should not be entertained.

It is true that the High Court has noticed the following

submissions of learned counsel appearing for the

respondent in the writ petition:

"Learned counsel for the opposite parties on

the basis of the instruction submits that 19

plots of different sizes are available for

allotment in Sector 11 of the Vikas Nagar

Extension Scheme of U.P. Awas Evam Vikas

Parishad and the petitioner can be adjusted

against the 19 plots which are available."

The aforesaid statement was that plots are available

and on which the respondent can be adjusted but the fact

of availability of the plot does not give any entitlement

to a person who has no right to claim allotment. Any

allotment has to be made in accordance with the procedure

prescribed and the Rules of the Parishad. No allotment can

be given in the facts of present case to the respondent

when he never participated in the process of allotment nor

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there was any allotment in his father or in favour of his

grandfather. The above statement cannot be read to mean

that the respondent consented for allowing the writ

petition. The High Court after noticing the aforesaid

statement of the counsel proceeded to examine the claim of

the writ petitioner on merits which consideration is to

the following effect:

"It is admitted case of the parties that the

grandfather of the petitioner Late Sri M.L.

Sharma was registered with the U.P. Awas Evam

Vikas Parishad having the Registration

No.L.W./P-2951(6) for the allotment of an HIG

plot in the Ram Sagar Mishra Colony nor know

as Indira Nagar Colony, Lucknow. On 15.9.1983

Sir M.L. Sharma nominated his grandson i.e.

the petitioner as his nominee against the

said registration who on attaining the age of

majority submitted an application before the

opposite parties for transfer of the

Registration No.L.W./P-2951(6) in his favour.

The petitioner has also annexed the copies of

the order passed on 25.5.1999 and 31.12.2004

on the application moved by the petitioner.

The opposite parties have placed before us

the communication dated 3.5.2009 which revels

that 19 plots of different sizes are

available for allotment in Vikas Nagar Vistar

Yojna, Lucknow."

The High Court in the above conclusion has noted the

application moved by the respondent dated 31.12.2004, on

which application the order passed therein Dr. Manish

Singhvi, appearing for the respondent, has made much

emphasis. The application filed by the respondent dated

31.12.2004 has been brought on the record in which

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application respondent made following prayers:

"In the prevailing circumstances I once again

request your goodself to transfer the

registration number cited above from my

grandfather's name to my name in the light of

letter dated September 15, 1983, which stands

received in the Housing Board and to allot

house/plot to me at the earliest possible. It

is to bring to your kind notice that House

No.1/41, Vikas Nagar, Lucknow is lying vacant

and the said house be considered to be

allotted to me.

Dated 31.12.2004

Yours faithfully

Sd/- illegible

(Namit Sharma)

B-1/14, Sector-Q, Aliganj,

Lucknow 226 024 (U.P.)"

On the said application there is an endorsement to

the following effect:

"By hand:

Joint Housing Commissioner (Lucknow)

While using the powers conferred under Rule

48, the request made in para (a) may please

be accepted under special circumstances.

Sd/- Illegible

31.12.2004"

Dr. Manish Singhvi has taken pains to contend that

the above order dated 31.12.2004 is the order passed by

the Housing Commissioner in exercise of power under Rule

48 where Commissioner has power to pass any order. Learned

counsel for the respondent submits that the correct Rule

is Rule 47 of the Uttar Pradesh Awas Evam Vikas Parishad

Bhukhando Tatha Bhavano Ke Panjikaran Evam Pradeshan

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Sambandhi Viniyam, 1979 where regulation framed under

Section 95(1) of the Uttar Pradesh Avas Evam Vikas

Parishad Adhiniyam, 1965. The Rule 47 provide that

notwithstanding anything in the regulation in special

circumstance, in the interest of the Board, Housing

Commissioner is empowered to take any decision including

he shall have right to change the allotment process and

process for payment. There can be no dispute to the right

of the Housing Commissioner given by Rule 47 as noted

above. However, the endorsement dated 31.12.2004 on which

Dr. Manish Singhvi has placed much reliance is not an

order passed by the Housing Commissioner but only a

recommendation made by some official person to Joint

Housing Commissioner, Lucknow. The recommendation was also

on the application of the respondent which was of the same

date. The submission is completely misconceived without

any merit that there is an order passed by the

Commissioner in favour of the respondent in exercise of

power under Rule 47. We may notice one more fact which is

relevant. In his appliation dated 31.12.2004 the

respondent has made a prayer to allot plot No.1/41 to him

which plot was already allotted to his father Dr. N.N.

Sharma who was also given possession of the plot on

06.10.2003. Dr. N.N. Sharma made a request to change his

plot 1/41 to plot 1/171 which was approved with some

conditions on 15.05.2004, which conditions were never

complied. Plot No.1/41 having been allotted to father of

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respondent, his prayer to allot plot No.1/41 was malafide

and incorrect. After the aforesaid application dated

31.12.2004 and recommendation made therein letter was

issued to the respondent on 21.05.2005 where it was

mentioned that the registration is not valid and there is

no question of transfer of registration in favour of the

respondent and if he is interested he may participate in

the allotment process.

We, thus, find no substance in the submission of Dr.

Manish Singhvi that there was an order passed by Housing

Commissioner allotting plot in favour of the respondent.

It is further to be noticed that for allotment of any plot

of Housing Board there is a process which all applicants

have to follow. As contended by counsel for the Parishad

allotments were made by draw of lots of all eligible

registered applicants. It is not a case of the respondent

that at any point of time any draw of lot was made in

which respondent's grandfather was declared successful.

Mere registration in the name of Late grandfather of the

respondent which registration also came to an end after

issuance of the Government order dated 11.10.2002 there

was no right left in the respondent to claim even

registration but to say of allotment of a plot. The

Parishad having communicated the respondent time and again

to apply for refund of the amount which was deposited at

the time of registration by his grandfather.

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The High Court has not given any cogent reason as to

on what basis direction was issued to allot one plot to

the respondent. The mere statement of the counsel for the

Board that 19 plots are vacant cannot be utilized for

issuance of direction for plot to respondent who has

otherwise no right for allotment. Allotment of plot to

respondent in such a manner would have deprived the other

applicants who must be awaiting for allotment of property

or who must be eligible for allotment of property. We,

thus, are of the considered opinion that the High Court

committed error in issuing the direction to allot a plot

to the respondent.

In view of the above, we allow the appeal and set

aside the order of the High Court dated 07.07.2009 and

dismiss the writ petition filed by the respondent.

...................J.

(ASHOK BHUSHAN)

...................J.

(R. SUBHASH REDDY)

New Delhi;

February 03, 2021

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ITEM NO.105 Court 7 (Video Conferencing) SECTION III-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s).4020/2010

U.P. HOUSING & DEVELOPMENT BOARD & ANR. Appellant(s)

VERSUS

NAMIT SHARMA Respondent(s)

Date : 03-02-2021 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ASHOK BHUSHAN

HON'BLE MR. JUSTICE R. SUBHASH REDDY

For Appellant(s)

Mr. Vishwajit Singh, AOR

Mr. Pankaj Singh, Adv.

Ms. Ridhima Singh, Adv.

Ms. Vijaya Singh, Adv.

Mr. Sushmit Chauhan, Adv.

For Respondent(s)

Dr. Manish Singhvi, Sr. Adv.

Mr. Prashant Kumar, AOR

UPON hearing the counsel the Court made the following

O R D E R

The appeal is allowed in terms of the signed reportable order.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT) (RENU KAPOOR)

COURT MASTER (SH) BRANCH OFFICER

(signed reportable order is placed on the file)

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