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Durga Prasad & Others v. Kanpur Development Authority, Through V.C. & Others - WRIT - C No. 47913 of 1999 [2005] RD-AH 7846 (20 December 2005)


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Court No.26

Civil Misc.Writ Petition No.47913 of 1999

  Durga Prasad & others


     Kanpur Development Authority, Kanpur through

             its Vice Chairman & others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the impugned orders dated 22.2.1999 and 28.9.1999 passed in Civil Suit No.128 of 1999 and Civil Miscellaneous Appeal No.54 of 1999 (Annexures 14 and 15 to the writ petition respectively).  The further prayer in the nature of mandamus directing the respondents Nos. 1 and 2 to accept the entire amount as demanded by them vide order dated 17.8.1998 (Annexure 8 to the writ petition) in 12 equal monthly instalments and after the entire amount is cleared the respondent Nos. 1 and 2 be directed to execute the sale deed in favour of the petitioners and in the meanwhile the allotment of plots in dispute be neither cancelled nor the plot in dispute be transferred in favour of any other person.

The facts arising of the present writ petition are that Smt. Allah Rakkhi W/o Late Mohd. Ismail owned a house No.12/438 measuring 172 Square yards situated at Gwaltoli Kanpur Nagar under Slum Clearance Scheme No.36 under Award No.19 dated 31.10.1961 and after the said house was acquired by the then Nagar Mahapalika presently under Kanpur Development Authority under U.P. Slum Areas Act, 1962 and accordingly a compensation was fixed to be Rs.5,347/- by the Special Land Acquisition Officer, Kanpur in the name of late Smt.Allah Rakkhi and accordingly she was directed to vacate the premises.  therefore, Smt. Allah Rakkhi was allotted Plot No.133 Area 140 Sq. yards under Scheme No.36 Gwaltoli, Kanpur Nagar in her name under letter No.1079 dated 6.2.1976 and property officer also directed to Sahayak Nagar Adhikari to execute the sale deed in favour of Smt. Allah Rakkhi on 11.8.1997 on payment of the amount fixed under the Slum Clearance Scheme at a specified rate.  Accordingly Smt. Allah Rakkhi deposited the entire amount as directed by Kanpur Development Authority and requested to execute the sale deed.  A letter has been filed as Annexure 4 to the writ petition. Smt. Allah Rakkhi was a very old lady executed a registered will deed in favour of the petitioners being her grand son on 16.9.1989. A copy of the same has been filed as Annexure 5 to the writ petition.  Smt. Allah Rakkhi expired on 3.7.1991.  Inspite of the deposit of the entire amount in favour of Kanpur Development Authority, the respondent Nos. 1 and 2 have not executed the requisite sale deed, as such the petitioners moved an application for execution of the sale deed in favour of the petitioners.

The State Government vide its order dated 14.3.1974 had decided to allot the plots to the evicted persons under Slum Clearance Scheme at concessional rates of Rs. 4/-, Rs.6/- and Rs.8/- per square yard.  A copy of the said government order has been annexed as Annexure 7 to the writ petition.  the petitioner being heirs of late Allah Rekkhi under the registered will deed dated 16.9.1989 moved an application to the respondent No.2 for execution of the sale deed in favour of the petitioners of Plot No.133 Gwaltoli, Kanpur Nagar. Surprisingly enough the respondent Nos. 1 and 2 without application of mind have passed an order to deposit a sum of Rs. 3,60,057/- as a price of the Plot and Rs.43,260/- of free hold charge and other miscellaneous costs of Rs.320/- with a condition that the petitioners have to deposit the entire amount within one month and will have to take possession of the plot at their own cost and responsibility.  The petitioners moved an application for reconsidering the cost of the plot at concessional rate and also to fix twelve six monthly instalments after deposit of 1/4th of the amount by the petitioners on 29.8.1998 and 21.11.1998.  But the respondents have not considered the request of the petitioners and then the petitioners filed a Civil Suit No. 28 of 1999.  The petitioners have also filed an application under Order 39 Rules 1 and 2 of the Civil Procedure Code for an interim injunction to restrain the defendants from transferring the plot in dispute to any other person and to execute the sale deed in favour of the petitioners after payment of entire amount in instalments. The respondents in spite of notice has not appeared before the Court though the W.S. in suit was filed in the month of February, 1999. It has also been stated that in the Slum Clearance Scheme of Ganda Nala & Vijay Nagar Areas whose lands were also acquired sometimes during 1961 under Slum Clearance Scheme have executed the lease deeds on concessional rates in the year 1997-98 and hence the respondents cannot deny or ask the current rates for the land allotted under similar scheme.  But the Trial Court has rejected the said application vide its order dated 28.9.1999.  A copy of the same has been filed as Annexures 14 and 15 to the writ petition.

It has been submitted on behalf of the petitioners that both the Courts have failed to appreciate the most important point that petitioners being a poor persons cannot deposit the entire amount at one stretch and as such, they wanted to deposit the entire cost of the land subject to decision of the Court on instalments but both the Courts below could have permitted the petitioners to deposit the entire amount and interest in instalments and could have issued  a conditional injunction in favour of the petitioners.  The petitioners submit that they are still ready to pay the entire amount in instalments within one year on the condition that the respondents Nos. 1 and 2 will execute the sale deed of Plot No.133 Gwaltoli, Block'A" Kanpur Nagar after the entire amount is deposited and will not cancel the allotment in favour of the petitioners or transfer the same to any other persons.

The writ petition was entertained and the respondent Nos. 1 and 2 were directed to file a counter affidavit and an order was passed in favour of the petitioners on 2.12.1999 that the respondent Nos. 1 and 2 will not allot the plots in question to any other person.  Counter and rejoinder affidavits have been exchanged. The counsel for the petitioner Sri B.N.Rai submits that the petitioners are ready to deposit the total amount demanded by the respondents within a specific period.  As the suit is still pending and the petitioners have come with a case that they are ready to deposit the total amount and a direction to this effect be issued to the Trial Court to accept the said amount.

Sri Lalji Sinha who appeared for the respondents Nos. 1 and 2 has got no objection.

In view of the aforesaid fact, the writ petition is disposed of with an observation that if the petitioners deposit the total demanded amount by the respondent Nos. 1 and 2 within a period of three months from today, the Trial Court will proceed with the suit and will pass an appropriate orders.

With these observations the writ petition is disposed of. There shall be no order as to costs.




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