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2009 Supreme(All) 658
[2009(4) ADJ 1 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND ARUN TANDON, JJ.
Mrs. ANJALI SWAROOP ....Petitioner
Versus
NOIDA AND ANOTHER .....Respondents
(Civil Misc. Writ Petition Nos. 230, 2259, 1619, 1738, 4596, 5822, 266, 22, 5670, 5265, 2835, 3197, 459, 385, 1620 and 7288 of 2009, decided on
27th February, 2009)
Counsel :
V.B. Upadhya, Shashi Nandan, Raj Kishore Upadhyaya, K.K. Singh and N.P. Singh for the Petitioner; Ravindra Kumar, Ramendra Pratap Singh, M.C. Tripathi, S.C. for the Respondents.
Headnote:(A) Allotment—Residential plots in different Sectors, including Sector 44—Applications filed by petitioners for such plots of NOIDA—Registration amount deposited—Petitioners challenging amount, demanded by impugned allotment letters—And, they pray that premium of plots, be changed as per rates mentioned in Scheme of 2004(1)—For Sector 44, premium of plots was mentioned in Brochure 2004(1) as Rs. 11,200 per sq. meter—Whereas in impugned allotment letters Rs. 39,600 per square meter, has been demanded—Present case, is a case, where question regarding maintainability of writ petition under Article 226 of Constitution against Development Authority is under challenge on subject of escalation of price—When there is a concluded contract between parties, contract cannot be made subject matter of writ petition under Article 226—Present case, is not a case of any concluded contract between parties—Petitioners immediately after receiving allotment order, asking them to deposit amount, as per existing rate of plots of lands, have come up in those writ petitions, challenging demand at the rate of Rs. 39,600 per square meter—Neither any lease deed, had been executed, nor petitioners have taken possession of plots in dispute—Thus, they are fully entitled to challenge actions of Development Authority in writ jurisdiction under Article 226 of Constitution—Thus, objections of respondents that writ petition is not maintainable under Article 226 of Constitution, is overruled. [Constitution of India—Articles 226]. [Paras 2, 9, 16, 18 and 19]
(B) Allotment—Residential plots in different Sectors, including Sector 4 of NOIDA—Escalation of price—By virtue of Note to Clause 6(i) of Scheme 2004(1), NOIDA authority is entitled to change rates of lands, as prevalent on the date when letter of allotment was issued—Claims of petitioners that they are entitled for allotment at the rate mentioned in Brochure Scheme 2004(1), cannot be accepted—Hence, no arbitrariness, or mala fide can be imputed on NOIDA authority for delay caused in holding draw of lots on 8.11.2008 on basis of which petitioners can claim not to accept increased rates of plots, w.e.f. 1.5.2008—Circle rate, as claimed by respondents of plots of Sector 44 has not even been disputed by petitioners—Thus, plea of petitioners that escalation of price, is arbitrary and mala fide, cannot be accepted. [Paras 25, 38, 44 and 45]
Hon’ble Ashok Bhushan, J.—This bunch of writ petitions raising similar questions have been heard together and are being disposed of by this common judgment. Counter and rejoinder affidavits have been exchanged between the parties. All these writ petitions have been filed on similar facts and grounds. It is sufficient to refer to the pleadings of writ petitions No. 230 of 2009, 266 of 2009 and 22 of 2009 for deciding all these writ petitions.
2. Brief facts necessary to be noted for deciding these writ petitions are ; New Okhla Industrial Development Authority (hereinafter referred to as ‘Noida’) issued a residential plot scheme 2004 (1) inviting applications for allotment of residential plots in different sectors including Sector No. 44. The petitioners submitted applications in response to the notice by depositing the registration amount. The Noida authority have conducted draw of lots on 2.7.2005 in which several applicants were selected for allotment. By a subsequent order dated 4.7.2005, the draw of lots held on 2.7.2005 was cancelled. A writ petition being Civil Misc. Writ Petition No. 48287 of 2005, Deepak Sharma v. State of U.P. and others, was filed in this Court for a direction upon the respondents to execute the lease deed in favour of the petitioner Deepak Sharma on the basis of the allotment letter issued pursuant to draw of lots held on 2.7.2005. Subsequently by means of amendment application, the petitioner sought the quashing of the order dated 4.7.2005. Another writ petition No. 50418 of 2005, Manav Sewa Samiti and another v. State of U.P., was filed praying for a direction prohibiting the Noida authority to approve the draw of lots held on 2.7.2005 and for causing an investigation to be done by the suitable agency to determine the liability of individual officers and for holding a fresh draw of lots. The aforesaid two writ petitions were heard by a Division Bench of this Court and were decided by judgment and order dated 5.10.2005. The Division Bench came to the conclusion that in the draw of lots held on 2.7.2005, fraud and manipulation were done and the order dated 4.7.2005 cancelling the draw of lots was fully justified. The Division Bench further held that the official of the Noida authority had surpassed all levels of fraud and had lost confidence of public therefore, in order to find out the guilty persons responsible for fraud and manipulation in the draw of lots and in order to restore the confidence of the public in the matter, fresh draw of lots be not held by Noida authority and be held by a Committee as mentioned in the order. Investigation by Central Bureau of Investigation was also directed by Division Bench in the whole matter. The Division Bench directed draw of fresh lots by the Committee preferably within a period of four weeks. The order passed by the Division Bench was challenged before the apex Court in Civil Appeal No. 6794-6795 of 2005, New Okhla Industrial Development Authority v. Deepak Sharma, as well as in Civil Appeal No. 6800-6801 of 2005, Deepak Sharma v. State of U.P. The apex Court passed an order staying the judgment of the Division Bench of this Court. However, the Civil Appeal of the Noida was subsequently dismissed on 22.11.2007 on statements made on behalf of Noida to the effect that Noida has taken a decision to implement the decision of the High Court hence, the appeals are not pressed with a direction that appellant shall implement the direction of the High Court. The appeal filed by Deepak Sharma was dismissed as devoid of merit. Although the appeals were dismissed by apex Court on 22.11.2007 but the draw of lots was not held immediately.
3. A writ petition being writ petition No. 3274 of 2008, Drappled Paper Industries and others v. State of U.P., was filed before this Court for a direction to the Committee appointed by the Division Bench of this Court vide its judgment dated 5.10.2005, to immediately held fresh draw of lots. Several orders were passed by this
