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2007 Supreme(All) 521
[2007(3) ADJ 324 (DB)]
ALLAHABAD HIGH COURT
BEFORE : A.K. YOG AND R.K. RASTOGI, JJ.
Dr. LALIT VERMA —Petitioner
Versus
STATE OF U.P. AND ANOTHER —Respondents
(Civil Misc. Writ Petition No. 69434 of 2005, decided on 2nd March, 2007)
Arjun Singhal for the Petitioner; C.P. Gupta, S.M.A. Kazmi, Advocate General and Anurag Khanna for the Respondent.
Headnote:Allotment—Tranfer of—Being permitted by authority—As per Transfer Memorandum—Issue of allotment order by NOIDA in favour of petitioner—Petitioner had deposited Rs. 80,000/- in 2002, for settlement and allotment of “excess area” in his plot—NOIDA could not deny “legitimate expectation”, and privilege of petitioner under its Policy—NOIDA attempting to frustrate claim of petitioner, on one pretext, or other—Original allottee had rights/privileges to get excess area settled with him—There is no pleading, or material to show, or to prove that Orignal allottee have lost this right to have “excess area”, settled with him, when he transferred said plot to petitioner—Held, petitioner entitled to get excess area of 300 sq. metres in said plot, allotted in his favour—Hence, NOIDA was directed to allot/settle aforesaid excess area in question, with petitioner, on his fulfilling/discharging requisite obligations, in that respect—And to pass orders/excecute deeds/documents in favour of petitioner, of deposit of requisite amount, in respect of that “excess area”, and perform any other obligations, if any. [U.P. Urban Planning and Development Act, 1973—Section 41—U.P. Industrial Area (Development) Act, 1976—Section 12(3)]. [Paras 31, 51, 61, 62, 63 and 64]
By the Court.—Heard above noted learned Counsel representing respective parties.
Back ground
2. Dr. Lalit Verma, as Karta of ‘Lalit Verma HUF’ (the petitioner) filed this writ petition on the plea that NOIDA ( New Okhla Industrial Development Authority ) allotted residential plot No. D-20 Sector-51, NOIDA (Area 450 Sq. Mts.) in favour of one Kunwar Pal, who transferred it to the petitioner with the consent of NOIDA as per Transfer Memorandum dated 26.7.2002 executed by NOIDA (Annexure 1 to the writ petition) and NOIDA also issued allotment order on 28.12.2004 in favour of the petitioner.
3. Relevant extract of the Tansfer Memorandum is quoted below for convenience:
TRANSFER MEMORANDUM
Subject : Transfer permission in respect of Residential plot No. D-20, Sector 51 NOIDA Complex:
Plot No. D-20, Sector-51, NOIDA allotted to Shri Kanwar Pal S/o Lalu R/o village Hoshiarpur P.O. Sarafabad, NOIDA, henceforth is transferred in favour of Shri Lalit Varma S/o Shri M.P. Varma R/o C-11, Rana Pratap Bagh, Delhi-110007 subject to the following terms and conditions :
“4. In the event of transfer of allotment being permitted by the Authority, the Transferee shall execute lease deed within 30 days from time and date of issue of checklist.
6. The transferee shall be liable to pay balance instalments of plot premium alongwith interest thereon by the due dates. The interest on the balance plot premium/another dues shall be payable @ 14% p.a. In case of default, interest shall be levied @ 17% p.a. Compounded half yearly for delayed period.
7. The transferee shall be bound by the terms and conditions of Allotment Letter and Brochure of the said scheme of plot subject to the amendments indicated in the transfer memorandum.
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(Underlined by us to lay emphasis)
4. Plot in question (Plot No. D-20) was allotted to Kunwar Pal under Residential Plot Scheme -1997 (1)- copy filed as Annexure CA-2 to the counter affidavit (of NOIDA sworn by one Rajes Kumar ). Later it was replaced by Residential Plot Scheme-2004. It is not disputed that in both the schemes, i.e. Scheme of 1997 and 2004), clause 13 providing for settlement of excess area of a plot almost remained the same.
5. Clause 13 (dealing with settlement of excess area) under Residential Plot Scheme, 1997 (1), quoted in para 5 of the writ petition reads :
“Area of plot allotted or handed over may vary from the size of the plot advertised in the scheme or applied for. If the area of the plot indicated in the allotment letter issued by the Authority or actually handed over to the allottee is found to be in excess or less than the area applied for, a proportionate change in the amount of premium would be made. No dispute would be allowed to be raised by the allottee on the ground of variation in the size of the plot. He would also have no right to change of plot or refund of earnest money deposited by him, on this account. If the variation between the plot area applied for and the area allotted is more than 20% and the allottee is unwilling to accept the enhanced or reduced area, the registration money/amount deposited by the allottee will be refunded without any interest, if he applies for refund within 30 days from the date of issue of allotment letter/such communication. Premium of excess area will be recoverable in lump-sum within 30 days from the date of intimation alongwith interest @ 15% p.a. Compounded half yearly from the date of allotment. In case of default in payment after the demand has been raised an interest @ 24% compounded every half yearly shall be charged on demanded amount for defaulted period.”
6. Clause 13 of Scheme-2004 (quoted in writ para 5) is also reproduced:
“Area of plot allotted or handed over may vary from the size of the plot advertised in the scheme or applied to. If the area of the plot indicated in the allotment l
