- (1.) This writ petition has been filed with the following prayers :- (a) issue a writ, order or direction in the nature of certiorari quashing the order dated 1.4.2010 contained at Annexure No.1 passed by Housing Commissioner, Uttar Pradesh Avas Evam Vikas Parishad, Lucknow rejecting the claim of the petitioner-society for restoration/revival of allotment of plot no.11/INS-5, Vikas Nagar, Lucknow, consequential order dated 24.5.2010, contained in Annexure no.2 passed by Sampatti Prabhandh Adhikari, Uttar Pradesh Avas Evam Vikas Parishad, Lucknow in compliance of the order, contained in Annexure no.1, by putting the plot no.11/INS-5, Vikas Nagar, Lucknow on auction and order dated 24.5.2008 alongwith covering letter dated 25.7.2008, contained in Annexure no.3 passed by Sampatti Prabhandh Adhikari, Uttar Pradesh Avas Evam Vikas Parishad, Lucknow relating to cancellation of plot no.11/INS-5, Vikas Nagar, Lucknow and forfeiture of earnest/token money to the tune of Rs.16,70,000/- with all benefits "and order of allotment dated 31.7.2010 issued in favour of private opposite party no.5 in respect of plot in as contained in Annexure No-3A as also advertisement and entire auction proceedings of the plot in question, after summoning the original from opposite parties. (b)Issue a writ, order or direction in the nature of commanding the opposite parties to consider afresh and restore/revive the allotment of plot no.11/INS-5, Vikas Nagar, Lucknow and in alternative another similar plot in favour of petitioner-society in terms of Government Order dated 6.1.2009, contained in Annexure no.9. In the alternative directions may kindly be issued to the opposite parties to consider and allot suitable plot with the same area with the same situation to the petitioner-society."
(2.) The facts giving rise to the present dispute are that Uttar Pradesh Avas Evam Vikas Parishad, Lucknow (for short "the Parishad") issued an advertisement for public auction of various plots including plot no.11/INS-5, Vikas Nagar, Lucknow on 5.3.2004 providing therein that the interested persons after paying 10% of reserve price may submit bid in a sealed envelop a day before the auction or they may participate in public auction to be held on 15.3.2004 by paying 10% of earnest money of reserve price. The petitioner-society after paying the amount of Rs.16.70,000/- through bank draft as earnest/token money being 10% of reserve price, participated in the auction and he had also submitted bid in sealed cover on 15.3.2004. The Housing Commissioner accepted the bid of the petitioner-society on 25.3.2004 being highest and as consequence thereof, allotted plot no.11/INS-5, Vikas Nagar, Lucknow to the petitioner-society and in compliance thereof, Sampatti Prabhandh Adhikari issued order allotting the plot in question to the petitioner-society by providing that rest of the amount shall be paid in 72 installments. On 10.9.2008, the Deputy Housing Commissioner (Headquarters) after obtaining the orders from the Housing Commissioner, issued direction to the Sampatti Prabhandh Adhikari for revival/restoration of plot in question in favour of the petitioner-society after obtaining the consent of petitioner-society. The Sampatti Prabhandh Adhikari in compliance of said order, passed the order on 16.9.2008 requiring the petitioner-society to pay revival charges to the tune of Rs.6,68,000/- with further direction that in case the petitioner-society desires to pay the entire amount, then it may deposit a sum of Rs.3,61,76,100/- by 20.9.2008 and in case the said amount is not deposited by 30.9.2008 and in that event, the petitioner-society may deposit the same in five installments in five years and each installment would be of Rs.18,51,200/- with interest. The petitioner-society consented for revival of the plot in question by accepting the condition no.3 of the letter referred to above and also opted for payment of Rs.9,18,512/- per month payable for five years by enclosing the bank draft of Rs.9,18,512/-. The petitioner-society also prayed for exemption of restoration fee of Rs.6,18,000/-. The Deputy Housing Commissioner (Headquarters) directed for restoration/revival of the plot in question on payment of certain charges by obtaining the consent of the petitioner-society in installments after the orders from the Housing Commissioner, but the Sampatti Prabhandh Adhikair vide letter dated 30.5.2009 returned the bank draft of Rs.9,18,512/- to the petitioner-society on the ground that the decision from the Headquarters in respect of restoration/revival of plot in question has not been received though the Deputy Housing Commissioner (Headquarters) after obtaining the order from the Housing Commissioner, who is competent authority to issue orders for restoration/revival of allotment of plot in question. The State Government being the controlling authority, issued Government Order dated 6.1.2009 for bringing the defaulters out of financial crisis by giving two options to the defaulters namely (a) whether they want to continue their project; and (b) whether they want to leave/exit the project. The petitioner-society on facts and grounds stated in its representation dated 23.6.2009 opted for clause(a) by praying for restoration/revival of the plot in question by agreeing to pay the interest as provided in the aforesaid Government Order. The aforesaid Government Order provided that the decision shall be taken in the case of Development Authority by the Board of Development Authority and in the case of Housing Board, by the Board of Directors of Housing Board. The petitioner-society by way of representation dated 25.1.2010 approached the Housing Commissioner for restoration/revival of allotment of plot in question along with a copy of the judgement and order dated 9.12.2009 passed in Writ Petition No.11402 (MB) of 2009. The representation of the petitioner-society was rejected by the impugned order without taking into consideration the points raised by the petitioner-society on extraneous consideration and on irrelevant material by misinterpreting the Government Order dated 6.1.2009 and by misinterpreting the condition of auction and allotment order. The petitioner-society before passing the impugned order, moved representations dated 3.9.2009, 16.9.2009 and 23.12.2009 to the Housing Commissioner for restoration/revival of allotment of plot in question in terms of Government Order dated 6.1.2009. The petitioner-society also moved representations dated 21.4.2010, 1.5.2010 and 4.6.2010 to the Housing Commissioner for restoration of allotment of plot in question by reviving the allotment on the ground that the impugned order has been passed on non-existent allegations/irrelevant material, but its representations have neither been considered nor disposed of. The plot in question was an institutional plot for a project to be completed by the institution. The State Government issued Government Order dated 6.1.2009 by brining such defaulters like the petitioner-society out of financial crisis. The Government order referred to above, is fully applicable in the case of the petitioner-society and the impugned order has been passed in ignorance of the said Government Order. The order in question has been passed by the Housing Commissioner, who was having no authority, in view of the fact that the power was conferred upon the Board of Directors of the Housing Board and the Board of Directors have not passed any order. The order cancelling the allotment of plot stood revived on account of passing of the order by the Deputy Housing Commissioner dated 10.9.2008. and in pursuance thereof, the order dated 16.9.2008 was passed by the Sampatti Prabhandh Adhikari. In the impugned order, a specific ground has been taken that the revival order could not have been passed by the Sampatti Prabhandh Adhikari, whereas the Sampatti Prabhandh Adhikari has not passed the said order, rather on the approval of the Housing Commissioner, the Deputy Housing Commissioner (Headquarter) has passed the order and in pursuance thereof, the Sampatti Prabhandh Adhikari has issued the said order. Hence this writ petition.
(3.) Submission of learned counsel for the petitioner is that the Housing Commissioner has passed the order under wrong assumption that plot was revived by the Sampatti Prabhandah Adhikari and has proceeded to cancel the plot, whereas the plot was not revived by the Sampatti Prabhandh Adhikarri, but in fact the Housing Commissioner has taken a decision and in pursuance thereof, the order dated 10.9.2008 was passed by the Deputy Housing Commissioner (Headquarters) and in pursuance thereof the Sampatti Prabhandh Adhikari has passed the order dated 16.9.2008. Therefore, it was well within the domain of the Housing Commissioner to have taken a decision regarding revival of the plot and the Sampatti Prabhandh Adhikari illegally refused to accept the bank draft of Rs.9,18,512/- simply on the ground that there is no order from the headquarter. He has further submitted that order of the headquarter was there and the same was specifically mentioned in the order dated 16.9.2008, so after revival, the Sampatti Prabhandh Adhikari had no right to refuse the bank draft submitted by the petitioner-society. It is also submitted that the order passed by the Deputy Housing Commissioner (Headquarter) was an order passed in pursuance to the order passed by the Housing Commissioner that the plot stood revived and so the order dated 30.5.2009 passed by the Sampatti Prabhandh Adhikari stating therein that there is no order from the headquarter, therefore, the bank draft can not be accepted, is fully illegal and without authority of the Sampatti Prabhandh Adhikari.;