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M/S UNIQUE SOFTWARE AND TECHNOLOGIES versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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M/S Unique Software And Technologies v. State Of U.P. And Others - WRIT - C No. 34285 of 2006 [2007] RD-AH 6335 (6 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.34

Civil Misc. Writ Petition No. 34285 of 2006

M/s. Unique Software & Technologies

Vs.

State of U.P. & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Ran Vijai Singh, J.

This writ petition has been filed for quashing the impugned allotment of plots in favour of respondent nos. 5 to 11 displayed on the Website on 19.05.2006 (Annex.6) and for issuing a direction to the respondents to consider the application of the petitioner for making the allotment of plot.

The facts and circumstances giving rise to this case are that the respondent no.12, New Okhla industrial Development Authority, (hereinafter called ''NOIDA') made an advertisement on 01.03.2006 inviting applications for allotment of plots in various categories. Petitioner submitted the application on 02.03.2006 in category ''G' in Phase-III for a plot measuring 2001-3200 sq. meters. Petitioner made a representation for redressal of its grievances on 13.04.2006 submitting that its application was not being considered as per the advertisement. The list containing names of the allottees was made public on 19.05.2006 wherein the petitioner's name was not included, though the plots were allotted to respondent nos. 5 to 11. Hence this petition.

The writ petition has been filed making allegations of mala fides that allotments in favour of respondent nos. 5 to 11 had been made for extraneous consideration on the direction/instructions of politicians and the said respondents 5 to 11 were not in a better position than petitioner. The petitioner had been given a hostile discrimination though it had a better claim than the said allottees.

At the time of making submissions, it was contended on behalf of NOIDA that application filed by the petitioner was not complete; it was not clear as in what capacity the application had been filed; name of the applicant had been mentioned as Unique Software & Technologies though application had been filed by Smt. Swati Chopra; it was not clear as to whether she was the sole proprietor of the firm or she had applied for existing partnership firm or proposed partnership firm or for the existing Company or proposed Company; the names of proposed Promoters/Directors were mentioned in the application form but none of them had signed the said application. The balance sheet of the Company/firm had not been filed. Thus, nothing could be ascertained in respect of the status of the applicant.

This Court vide order dated 18.07.2006 asked NOIDA to consider the application of the petitioner treating Smt. Swati Chopra as the sole Proprietor of the firm.  NOIDA reconsidered the case in its meeting on 28.07.2006 and rejected the same by a reasoned order.

Shri T.P. Singh, learned Senior Counsel appearing for the petitioner assisted by Shri Sidharth Singh has submitted that applications had been invited in open ended scheme. In category ''G', there were nine plots. However, addition or deletion or subtraction of the plots was permissible. A sole proprietor of a firm; a registered partnership firm; or a private limited Company or limited Company; a proposed partnership firm or a proposed Company could submit the application for allotment. However, it was necessary to give the names of all the proposed partners/shareholders or Directors of the firm/Company. The advertisement itself mentioned that priority in allotment would be given to the Information Technology (IT) projects. The petitioner filed application for the proposed Company furnishing the names of the proposed Promotors and Directors, namely Smt. Swati Chopra, Mr. Gautam Mehra, Mr. Gagan Deep Singh and Mr. Rajeev Kumar Chopra. The documents in support of the financial position of the applicant had been filed wherein it had been shown that there were sufficient funds in the accounts of those proposed Directors. The petitioner submitted a number of affidavits and certificates of persons who were willing to provide the financial assistance to it in the form of loans. The application of the petitioner has been rejected for extraneous considerations and the respondent nos. 5 to 11 had been allotted the land illegally on instructions of the politicians. The said respondents did not have sufficient funds in their names. Petitioner's claim was better than any of the said allottees. Order dated 28.07.2006 passed by NOIDA is farce as approval was granted before it could be signed by all the members of the Committee. Thus, their allotments are liable to be quashed and petitioner is entitled for allotment of the plot.

On the other hand, Shri Vivek Prasad Mathur, learned counsel appearing the for NOIDA vehemently opposed the petition contending that the proposed Directors did not have any amount worth the name either on the date of making the application or on the date of consideration of application or on the date the case was reconsidered. Certificates submitted by the petitioner along with the application for allotment revealed that there was huge amount in the accounts of the persons named therein but on verification, it was found that there was no such amount, in their accounts, either on 2nd March, 2006 the date of submission of the application form or on 12th April,2006 when the case was considered for allotment or on 28.07.2006 when the petitioner's case was reconsidered in pursuance of the order of the Court. The petitioner made misrepresentation. Petitioner had not been financially viable and it was guilty of concealment of facts even while filing the writ petition. The petition has been filed in a fraudulent manner without disclosing all material facts. Therefore, the petition is liable to be dismissed.

We have considered the rival submissions made by learned counsel for the parties and perused the record.

Undoubtedly, the Scheme provided priority for IT projects and to certain extent the persons who applied first were entitled to get their applications considered first by the Screening Committee. Allegations of mala fides have been made elaborately pointing out that application forms were not complete. The said allottees were not even eligible to make applications. The allotment had been made on extraneous considerations under the influence of politicians and bureaucrats. The entire system had been reduced to mockery. However, the petitioner, for the reasons best known to it, did not implead a single person by name who made allotment for extraneous considerations or under political pressure. A writ petition cannot be entertained on the ground of mala fide unless the party against whom allegations are made is impleaded as respondent by name. (Vide J.M. Banawalikar  Vs.  Municipal Corporation, Delhi  & Ors., AIR  1996  SC 326;  State of Bihar  &  Ors. Vs.  P.P.   Sharma, 1992 (Suppl) 1 SCC 222; I.K. Mishra Vs. Union of India & Ors., (1997) 6  SCC 228;  and   All   India   State   Bank   Officers Federation & ors. Vs. Union of India & Ors., JT 1996 (8) SC 550).  

In Federation of Officers Association Vs. Union of India & Ors, 2003 AIR SCW 1764 the Apex Court has held that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.

In such an eventuality, it becomes difficult for the Court to take into consideration the allegations of mala fide.

Whatever may be the position of the said respondent allottees, the case of the petitioner has been reconsidered by the Authority in pursuance of the order of this Court and rejected by a speaking and reasoned order. The Committee after scrutinising the papers filed by petitioner recorded the findings on the basis of which petitioner has been found non-suited.

In the original application form, the petitioner had mentioned that the total cost of the project was Rs.3.35 crores; the funding from own sources was Rs. 85 lacs and from other sources, i.e. bank loan etc. was for Rs. 2.50 crores. The Promoters/Directors of the proposed Company had shown a huge amount in their bank accounts and petitioner produced the letters to that effect. However,  the Screening Committee found that the aggregate income of the applicant Smt. Swati Chopra in the assessment year 2002-2003 was Rs.92,000/-, in 2003-2004 Rs. 93,000/- and in 2004-2005, it was Rs.93,000/- only. The income of the petitioner Company in the year 2002-2003 was only Rs. 72,000/-, in the 2003-2004, it was Rs. 1,12,000/- and in 2004-2005, it was Rs. 3.26 lacs. It had been mentioned by the petitioner that in the joint account of Smt. Swati Chopra and her husband Rajeev Chopra in State Bank of Patiala, there was a sum of Rs.11,13,490/- as on 25.11.2005. In another bank account in ICICI in the name of Smt. Swati Chopra, the balance shown was Rs. 42,02,266/- as on 12.01.2006. Smt. Swati Chopra had filed affidavits according to which one Shri O.P. Chopra was having a bank balance of Rs.24.03 lacs as on 19.01.2006 in I.N.G. Vaish Bank and he  would advance her a loan of Rs. 25 lacs. Smt. Sunita Chopra was having a balance of Rs. 17.87 lacs in her account as on 19.01.2006 in I.N.G. Vaish Bank  and she would advance a loan of Rs. 20 lacs to Smt. Swati Chopra. In the same bank, i.e. I.N.G. Vaish Bank, it had been shown that Mr. Rajeev Chopra had a bank balance of Rs. 41.55 lacs as on 20.01.2006. On verification, it was found that Smt. Swati Chopra, who had submitted the certificate of having bank balance of Rs. 11 lacs as on 14.10.2005 had nil balance on the date of submission of application form, i.e. 02.03.2006, on the date of interview, i.e. 12.04.2006 and on the date of reconsideration i.e. 28.07.2006. With regard to another bank account in the name of Smt. Swati Chopra and her husband Sri Rajeev Chopra, a certificate had been furnished showing that they had Rs. 42.02 lacs bank balance as on 11.01.2006, however, on verification it was found that they were having only Rs.691/- on 02.03.2006, Rs. 62,714/- on 12.04.2006 and Rs. 672/- only on 28.07.2006 in the said account. In another case, a certificate was filed showing that Shri Rajeev Chopra was having a bank balance of Rs. 11.13 lacs as on 25.11.2005 in the State Bank of Patiala but it  was found that he had only Rs. 4,421 as on 02.03.2006, Rs. 4,321/- on 12.06.2006 and Rs. 28,116/- on 28.07.2006 in the said account. With regard to another bank account in I.N.G. Vaish Bank in the name of Shri Rajeev Chopra, a certificate had been submitted showing that Shri Chopra was having an amount of Rs.41.55 lacs as on 20.01.2006, but it was found that he was having only Rs.5,540/- on 02.03.2006, Rs.5540/- on 12.04.2006 and Rs. 5,540/- as on 28.07.2006 in the said account.  Similarly, with regard to another joint account in I.N.G. Vaish Bank in the names five persons ,i.e. O.P. Chopra, Preeti, Sunita, Sanjay and Swati, a certificate had been submitted that they were having an amount of Rs.24.03 lacs, however, on verification, it was found that in the said account, there were only Rs.18,398/- on 02.03.2006, Rs. 3,542/- on 12.04.2006 and Rs. 1,26,069/- on 28.07.2006. Likewise, with regard to another account in the name of Sunita Chopra in I.N.G. Vaish Bank, a certificate had been submitted that she was having an amount of Rs.17.87 as on 20.01.2006 but it was found that she had only Rs. 37,688/- on 02.03.2006, Rs.64,688/- on 12.04.2006 and Rs. 2,64,688/- on 28.07.2006.

Not only that, some of the bank accounts were in the joint names of Smt. Swati Chopra and her husband Rajeev Chopra, though the certificate had been issued only in favour of Smt. Swati Chopra. In another case, Mr. Rajeev Chopra had been the account holder, though the certificate was issued  in favour of Smt. Swati Chopra. Similarly, in another case, there was a joint account in the name of five persons in I.N.G. Vaish Bank, i.e. Account No.508010029454, though the certificate was issued in the name of Shri O.P. Chopra only. The bank account number given by Shri O.P. Chopra was in the name of five persons and, therefore, he could not make the averments to advance such a huge amount from that account. Same remained the position in respect of certificate of Smt. Sunita Chopra. The F.D.R. shown in the name of Smt. Swati Chopra for a sum of Rs. 11.00 lacs had been encashed on 25.11.2005, i.e. prior to the date of submissions of the application form and a photostat copy of the said F.D.R. which had been encashed on 25.11.2005, was filed along with the application form just to show the financial conditions of the applicant.

The aforesaid findings of fact recorded by the Committee while reconsidering the case of the petitioner reveal a very sorry state of affairs that the petitioner did not hesitate in making misrepresentation in respect of its financial position or the financial condition of the proposed Promoters/Directors of the proposed Company nor the persons who had issued certificates to advance huge amount of loan were in a position to do so. The petitioner-applicant whether it was a firm or proposed firm or a Company or proposed Company was not financially sound. More so, we fail to understand as under what circumstances, Smt. Swati Chopra could show the huge amount in her bank account and other persons when petty amounts were there in their accounts on the date of submission of the application form. Filing the photo copies of FDRs to the tune of Rs. 11.00 lacs along with the application form was a misrepresentation as the said fixed deposits had already been encashed much prior to submission of the form.

Mr. T.P. Singh, learned counsel for the petitioner could not place any document to show that the said findings recorded by the Screening Committee were not factually correct. The application submitted by petitioner for allotment of plot was full of false informations/claims. Even affidavits filed to show that petitioner would be able to obtain loans from some persons were not worth believing.  

Writ is a discretionary jurisdiction. It cannot be exercised in favour of a person, who has the audacity to make this kind of misrepresentation.

There may be some substance in the submissions made by Shri T.P. Singh, learned Senior Counsel that there is some irregularity in the order rejecting the claim of the petitioner on reconsideration as one out of four members of the Committee signed the report on 02.08.2006 and it had been approved by the Chairman NOIDA on 01.08.2006 but the petitioner should not succeed on such technicalities. Petitioner has been making misrepresentation from the very beginning showing its viability, which could not be justified. The claim of the petitioner for allotment of plot was based on total falsehood. The facts of the case do not warrant any relief to the petitioner in the equity Court.

Petition is devoid of any merit and is accordingly dismissed. Interim order passed earlier stands vacated.

06.04.2007

AHA


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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