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New Okhla Industrial Development Authority v. Ramesh Kumar Setia - SECOND APPEAL No. - 519 of 2003  RD-AH 16240 (3 October 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 27
Second Appeal No. 519 of 2003
New Okhla Industrial Development Authority
Ramesh Kumar Setia
Hon. Dilip Gupta, J.
The defendant New Okhla Industrial Development Authority (hereinafter referred to as ''NOIDA') has filed this Second Appeal for setting aside the judgment and decree passed by the learned District Judge, Gautam Budh Nagar by which the Civil Appeal that had been filed by NOIDA was dismissed.
The Original Suit had been filed for a declaration that the order dated 17th October, 1998 passed by NOIDA by which the allotment of Plot No. 91 Block A Sector 51 in favour of the plaintiff was cancelled be declared as null and void and a further direction be issued that NOIDA be restrained from allotting this plot to any other person.
NOIDA through a Scheme known as Residential Plot Scheme 1994 (III) offered residential plots in Sector Nos. 41, 49, 51 & 53. The plaintiff submitted an application in the aforesaid 1994(III) Scheme floated by NOIDA and ultimately an allotment order dated 28th September, 1994 was issued allotting Plot No. 91 Block A Sector 51 NOIDA to the plaintiff who subsequently also deposited an amount of Rs. 3,42,910/- but when the lease deed was about to be executed NOIDA passed an order on 17th October, 1998 cancelling the allotment order dated 20th September, 1994 on the ground that the plaintiff was not eligible in terms of the eligibility requirements which is quoted below:-
"Eligibility applicable to all Categories of applicants:
(i) The applicant of eligible categories should be competent to contract.
(ii) The applicant, his/her spouse and dependent children who do not own in full or in part on lease hold or free hold basis any residential plot/house/flat (excluding EWS/LIG/DS-I/DS-II/TS-I/TS-II/Udaigiri-I/Udaigiri-II houses/flats allotted in the name of industrial unit/institution and have not been allotted on hire purchase basis in NOIDA Complex. Husband, wife and their dependent children will not be separately eligible for allotment of plot and for this purpose they shall be treated as a single person and they can make only one application.
Eligible applicants are required to submit notarized affidavit on prescribed proforma as applicable, attached with the application form."
NOIDA has cancelled the allotment, as the plaintiff's wife had earlier been allotted Plot No. A-7 Sector 22 NOIDA on 5th June, 1985. The Courts below have decreed the suit as it has been found that on the date the plaintiff submitted the application, he or his spouse did not hold any other plot as the plaintiff's wife had earlier sold the allotted plot on 22nd February, 1990 with the permission of NOIDA which was granted on receipt of permit fees of Rs. 33,480/-.
I have heard Sri Anurag Khanna learned counsel for the defendant-appellant and Sri Ashok Mehta learned counsel appearing for the respondent.
Sri Anurag Khanna learned counsel for the appellant submitted that the plaintiff was not eligible to apply under the Scheme inasmuch as his wife had earlier been allotted Plot No. A-7 Sector, 22 NOIDA on 5th June, 1985 and the fact that the wife had subsequently sold the property on 22nd February, 1990 with the permission of NOIDA was of no consequence. He submitted that once NOIDA has made an allotment in favour of the plaintiff's wife, the said allottee or her spouse cannot be allotted any further plots in NOIDA.
Sri Ashok Mehta learned counsel appearing for the respondent, however, submitted that the Courts below have correctly interpreted the eligibility clause and, therefore, the Second Appeal is liable to be dismissed.
I have carefully considered the submissions advanced by the learned counsel for the parties.
The submission of the learned counsel for the appellant is not borne out from a perusal of the eligibility clause referred to above. Plot No. A-7 Sector 22 was allotted to Smt. Nirmala Devi wife of the plaintiff but the said plot was sold by her to Dr. Arun Prabha and Dr. R.K. Dutta on 22nd February, 1990 with the permission of NOIDA. All that the eligibility clause requires is that on the date of submission of application, the applicant or the spouse should not be owing in full or in part on lease hold or free hold basis any residential plot/house/flat and should not have been allotted on hire purchase basis in NOIDA Complex. Admittedly the plot that had been allotted to the plaintiff's wife was sold by her on 22nd February, 1990 with the permission of NOIDA. Thus, on the date the application was submitted in terms of the 1994 (III) Scheme, the plaintiff's wife did not own any plot in NOIDA. There is, therefore, no infirmity in the judgment under Appeal.
The Second Appeal is, accordingly, dismissed at the admission stage as no substantial question of law much less then any question of law arises for consideration.
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