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Mohd. Hashrat v. State Of U.P. Thru' Secy. Ministry For Urban Devlp. & Ors. - WRIT - C No. 57426 of 2005 [2005] RD-AH 4594 (21 October 2005)


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Court No.10

Civil Misc. Writ Petition No.57426 of 2005

Mohd. Hasrat


State of U.P. & Others


Hon. A.K.Yog, J.

Hon. Dilip Gupta, J.

Heard Sri Saurabh Srivastava, learned counsel for the petitioner, learned Standing Counsel representing Respondent No.1/State of U.P. and Sri Ramesh Upadhyay for Respondent Nos.2 & 3 (Kanpur Development Authority).

After matter was heard for about 2 hours and we are about to dictate the final judgment, Sri Ramesh Upadhyay representing KDA sought for time for the first time to file supplementary counter affidavit in reply to the supplementary affidavit attached along with the Amendment Application filed in Court on 23rd September 2005 after serving a copy of the same on 23.9.2005 itself. This prayer is made when learned counsel for the petitioner referred to paragraph 9 of the supplementary affidavit which is quoted below:-

"That without giving any show cause notice and without affording an opportunity of being heard by order dated 19.5.2005 the respondents wrongly allotted plot no.R-41 at the rate of Rs.44,642.00 per sq. meter. The said order is wholly arbitrary."

We do not appreciate such a prayer having been made at the fag end of the hearing. Learned counsel should have been fair to the Court by making such a request at the beginning of the hearing. The order sheet shows that on 29th September 2005, the learned counsel representing KDA sought and was granted time to file a reply to the amendment application. There is no justification now at this stage to grant further time.

Apart from above, we find nothing on the record (including the pleadings of the petitioner and that of the KDA) to show that petitioner was given notice or afforded opportunity of hearing prior to the cancellation of order of allotment with respect to Plot No.4 opposite Manju Shree Cinema, Kanpur Nagar. Even the order dated 19.5.2005 (Annexure 9 to the petition) or the order dated 12.8.2005 does not indicate that petitioner was given any notice or opportunity of hearing before said decision was taken.

In the instant case we find that commercial structure belonging to the petitioner, though unauthorised according to the KDA, was demolished and the next day petitioner deposited Rs.90,000/- on the understanding (apparently at the instance of KDA) that he shall be given an alternative place in order to run his business. It is also not disputed that the petitioner has deposited Rs.90,000/- in pursuance thereto in the year 2000. Documents annexed with the petition show that KDA itself treated petitioner on different footing as a person who had been dispossessed and hence KDA agreed to allot a plot. It appears that KDA did come forward to allot a plot but the petitioner somehow did not commit himself to accept the same and, on the other hand, asked for accommodation by way of giving him an alternative plot. KDA then required the petitioner to make the requisite deposits in respect of the alternative Plot No.4 as is evident from the letter of KDA dated 20.7.2004 (Annexure 4 to the petition). According to the petitioner he made the aforesaid deposit of Rs.7,94,840.00 and also submitted the Draft Deed typed on requisite stamp amounting to Rs.88,500/-.

At this juncture we would like to note that according to the documents filed by the petitioner himself he succeeded in procuring certain respite in the rate applicable to the allotted plot due to the intervention of the office of the Hon'ble Chief Minister. On behalf of KDA, it is argued that this could not be done and, therefore, once there was an audit objection, petitioner was required to deposit the additional amount. Be that as it may, if we accept the submission made on behalf of KDA, then it ought to have brought on record, while filing the counter affidavit, the order passed by Hon'ble the then Chief Minister requiring the KDA to act against its Byelaws and Regulations and confer charity on the petitioner at the cost of the public exchequer. Even though this Court does not approve any intervention, particularly in financial matters, even at the instance of Hon'ble the Chief Minister, the Officers/Authorities of KDA should thank themselves for having reduced the price. We are not entering into dispute about the price fixed by the KDA while making the allotment in favour of the petitioner inasmuch as we are confining our judgment to the requirement of giving notice before canceling the allotment.

As noted above and in absence of anything having been brought on record by or on behalf of KDA that petitioner was given notice or opportunity coupled with the facts stated in paragraph 9 of the supplementary affidavit referred to earlier in the judgment that the aforesaid impugned order was passed without giving notice or opportunity of hearing to the petitioner we feel that an opportunity is required to be given to the petitioner to explain and submit before KDA whether the audit objection still survive or not and whether the allotment should be cancelled.

Thus on the sole ground of violation of principles of natural justice namely, that the petitioner was not afforded any notice or opportunity of hearing, we set aside the order dated 19.5.2005 and all other consequential orders, if any, with a direction to the Vice-Chairman, KDA to decide the matter afresh after hearing the petitioner in accordance with law and pass a speaking order meeting all the points raised by him. The KDA is directed to produce all the relevant records relevant to the issue as and when demanded by the petitioner in order to enable him to file a reply particularly with regard to the audit objection referred to in the impugned order dated 19.5.2005.

Counsel representing the petitioner and KDA are directed to serve the certified copy of the order within two weeks to the Vice-Chairman, KDA who shall decide the dispute within three months of the receipt of the certified copy of this order by passing a speaking order giving reasons with respect to each issue and contention raised by the petitioner before him. Any auction which may have taken place under the interim order of this Court shall not be given effect to and any amount deposited by any of the prospective bidders shall be refunded forthwith.

Writ petition stands allowed subject to` the observations made above.

There shall be no orders as to costs.

Dated 21.10.2005

GS - 57426


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