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Smt. Sakina & Ors. v. Allahabad Development Authority & Another - WRIT - C No. 17540 of 2001  RD-AH 11753 (11 July 2007)
Court No. 10
CIVIL MISC. WRIT PETITION NO. 17540 OF 2001.
Smt. Sakina and others ....................Petitioners.
Allahabad Development Authority
and another ...............Respondents.
Hon'ble Anjani Kumar, J.
Hon'ble Sabhajeet Yadav, J.
The case has been taken up in the revised list. Heard learned counsel for the petitioners. None appears on behalf of the respondent nos. 1 and 2.
By means of this writ petition, petitioner has sought for relief in the nature of mandamus restraining the respondent no. 1 from execution of any deed in the shape of sale deed/transfer deed in favour of respondent no. 2 in respect of House No. 39, Pargana Katra, Machchli Bazar, Allahabad City and further prayed for direction to respondent no. 1 to decide the mutation application filed by the petitioners which is pending before respondent no. 1. It is then stated by the petitioner that the respondent No. 1 be directed to fix and disclose the amount of instalment and to permit the petitioner to deposit the same within specified period fixed by this Court. Petitioners further prayed for direction in the nature of certiorari quashing the allotment order dated 4.9.2000 in favour of the respondent no. 2.
The reliefs sought for by the petitioner rest on the facts that the predecessor in interest of petitioners namely, Peer Mohd. was allotted the said house vide order dated 29th July, 1988 and possession of the said house was handed over to the said Peer Mohd. on the aforesaid date by the Allahabad Development Authority. It is stated in the writ petition that on 15.2.1988 a notice was issued by the Secretary, Allahabad Development Authority to late Peer Mohd. directing him to deposit Rs. 6000/- as 1 / 4 amount for the cost of the Flat in question towards which he has already deposited a sum of Rs. 500/- and remaining Rs. 5,500/- was directed to be paid within thirty days from the aforesaid date. It appears that no deposit was made by late Peer Mohd. Ultimately he died on 7th October, 1996 and after his death, his legal heir and successor in interest has filed an application on 13th December, 1999 to the Secretary, Allahabad Development Authority for mutation of their names over the flat in question, the same is still pending. It is further stated in the writ petition that despite pendency of the aforesaid application the names of legal heirs of Peer Mohd. were not mutated in the records of the Allahabad Development Authority instead thereof the notice continued to be issued to late Peer Mohd. on 8.6.2000 and 15.7.2000 as contained in Annexure 8 and 9 to the writ petition asking them to deposit to deposit the money. Although on the said application the respondent no. 2 has passed an order dated 17.10.2000 that till disposal of the mutation application, further proceedings to register the House in dispute in favour of respondent no. 2 be stayed which is contained in Annexure 10 to the writ petition. While entertaining and admitting the writ petition, on 9.5.2001 this Court has passed the following orders:
"We have heard Sri Radhey Shyam, learned counsel for the petitioner and Sri. B. B. Awasthi, learned counsel for the respondents.
In the event the petitioner deposits Rs. 20,000/- by 31st May, 2001, there shall be stay of the operation of allotment order in favour of respondent no. 2. In default of payment as directed above, the interim order shall stand automatically vacated.
List this matter in the week commencing 16th July, 2001."
Learned counsel for the petitioner states that pursuant to the interim order dated 9th May, 2001 the petitioners have deposited the sum of Rs. 20,000/- on 26th May, 2001 with the respondent no. 1. The aforesaid facts have already been brought on record by means of a supplementary affidavit.
Learned counsel for the petitioners has submitted that notices were issued to deposit the aforesaid amount against a dead person inspite of the fact that an application has already been moved by the heirs and successors in interest of late Peer Mohd. for mutation of their names but no action was taken. Instead it appears that the respondent no. 1 has canceled allotment order in favour of late Peer Mohd. and alloted the flat to respondent no. 2 but on an application being made by petitioners proceedings of allotment in favour of respondents has been stayed.
In the facts and circumstances of the present case we are of the considered opinion that since notice for realization of amount sought to be recovered was issued to Peer Mohd. after his death, therefore, it was not possible for the petitioners to deposit the said amount unless their names are mutated and such cancellation of allotment made in favour of late Peer Mohd. is illegal and further that consequential allotment order made in favour of respondent no. 2 cannot also be sustained. This writ petition succeeds and is allowed. The respondent no. 1 is directed to disclose the amount sought to be recovered from the petitioners towards the cost of the aforesaid flat and instalments which successors in interest of late Peer Mohd. have to deposit. The said instalments shall be deposited by the petitioners within two months from the date of production of certified copy of this order before the Secretary, Allahabad Development Authority after deducting and adjusting the amount of Rs. 20,000/- which according to the petitioners, has already been deposited.
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