Ghaziabad Development Authority vs Machhla Devi

GHAZIABAD DEVELOPMENT … APPELLANTS AUTHORITY & ORS.

Versus

MACHHLA DEVI … RESPONDENT

WITH

CIVIL APPEAL No.10671 OF 2018 (Arising out of SLP(C)No.12881 of 2018)

J U D G M E N T

N.V.RAMANA, J.

Civil Appeal No. 10670 of 2018 (arising out of SLP(C) No.11206 of 2018)

1. Leave granted.

2. Heard Mr. Rakesh Uttamchandra Upadhyay, learned

counsel appearing on behalf of the appellants and Mr. K. 2

Radhakrishnan, learned senior counsel appearing on behalf of the

respondent.

3. This appeal is directed against order dated 21.03.2018

passed by the High Court of Judicature at Allahabad in Writ

Petition(C) No.7928 of 2018 wherein without issuance of notice to

the Ghaziabad Development Authority (hereinafter referred to as the

“GDA”) an order was passed in the favour of Machhla Devi

(hereinafter referred to as the “allottee”). It is worthwhile to be

noted that the impugned order in essence nullifies the detailed

order of cancellation of allotment passed by the co­ordinate Bench

of the same High Court dated 17.05.2016 in Writ Petition

(C)No.28834 of 2004.

Facts in brief

4. The facts giving rise to the present dispute are that GDA

launched a scheme known as Shastri Nagar Housing Scheme. The

allottee had applied for a High Income Group Duplex “A” Category of

house under hire­purchase scheme. Vide letter dated 05.10.1994,

the allottee was informed of the allotment of House No.E­376. The

estimated cost of the house was mentioned as Rs.4,33,248/­. The

allottee had already paid the registration amount of Rs.5,000/­ and

the balance registration amount of Rs.38,325/­ was required to be 3

deposited within a week from the issuance of letter dated

05.10.1994 by which the allotment was made. The remaining

amount was to be paid in accordance with a payment schedule

which had to be notified at a later date. The terms and conditions

of allotment letter included that in the eventuality of default in

payment to GDA within the prescribed time limit, a penal interest of

21% per annum would follow. Further in the eventuality of a further

default for a period of three months from the due date along with

penal interest, the allotment shall be treated as cancelled. It was

also mentioned that possession could be taken pursuant to 50% of

payment of the final cost of the house. The allottee deposited the

amount of Rs.38,325/­ on 17.10.1994. It is to be noted that the

respondent thereafter deposited instalments without following any

schedule and a lump sum amount from time to time was deposited

as under­

S.No. Date Amount 1 19.12.1994 23,000 2 13.01.1995 10,000 3 30.08.1995 35,000 4 08.04.1996 20,000 5 11.09.1996 35,000 6 16.05.1997 35,000 7 18.05.1998 30,000 4

8 19.05.1998 30,000 9 19.01.2002 45,000

5. The total amount payable by the allottee increased as the

balance amount of cost of the house included interest and for non­

payment of the same in time also attracted a penal interest at the

rate of 21%. The fact on record as alleged is that the respondent

failed to make payment of substantial amount to the GDA. It is

alleged that the husband of the respondent – Chandra Pal Singh

was posted in U.P. Police and by influence of his position, she

continued in unauthorised possession of said house.

6. In light of the non­payment of any amount by the allottee

after 19.05.1998 for a period of almost three and half years, GDA

treated the allotment cancelled. However, on the representation

made by the allottee subsequently, a direction was made by GDA

dated 07.05.2004 regarding depositing of Rs.20,00,000/­ (Rupees

twenty lakhs) within 15 days for the restoration of the cancelled

allotment.

7. The respondent herein challenged the said cancellation of

allotment by filing Writ Petition (C) No. 28834 of 2004 before the

Allahabad High Court. The Allahabad High Court vide interim order 5

dated 29.07.2004 directed the GDA not to take coercive measures

for 6 weeks, if the respondent deposits Rs.2 lakhs. This writ petition

was dismissed finally by a detailed order dated 17.05.2016 with

cost of Rs.5,000/­ on the respondent herein.

8. Despite the final order of the High Court, the allottee

continued with the unauthorized possession of the property.

Accordingly, the GDA issued a letter to the District Magistrate,

Ghaziabad dated 10.01.2018 for the eviction of the allottee from the

property in question.

9. The respondent filed Writ Petition (C) No.7928 of 2018

before the Allahabad High Court for prayer of Writ of Certiorari for

quashing the said letter dated 10.01.2018 and mandamus for not

dispossessing her from the property in question. Adjudicating upon

the said matter, the Allahabad High Court disposed of the writ

petition by granting material relief to the allottee without issuance

of notice to GDA on the first material date of hearing itself. This

disposal of writ petition by the Allahabad High Court is in essence a

nullification of the order dated 17.05.2016 of its own co­ordinate

Bench in Writ Petition (C) No. 28834 of 2004. The High Court

passed directions for acceptance of amount by the GDA and thereby

regularized the allotment, the cancellation of which had been 6

upheld by a co­ordinate Bench of the same High Court on

17.05.2016. It is against this writ petition, that special leave

petitions have been filed by both the GDA and the allottee as

Special Leave Petition (C) No. 11206 of 2018 and 12881 of 2018

respectively.

Contentions on behalf of the appellants

10. The broad contentions raised by the Ld. Counsel on

behalf of GDA are threefold.

11. Firstly, it is contended that via the detailed judgement of

17.05.2016 passed by a two Judge bench of the Allahabad High

Court in Writ Petition Civil No. 28834 of 2004, the cancellation of

allotment was upheld, and, thus, it attained finality. Hence, it was

wrong and illegal on the part of the Allahabad High Court to

interfere in the matter and pass directions to accept the monetary

amount which is tantamount to regularization of the allotment.

12. Secondly, the High Court ought to have dismissed the

Writ Petition No.7928 of 2018 as the allottee had approached it

with unclean hands. The allottee had remained in unauthorized

possession of the property in question for 14 long years by virtue

of the influence of her husband who is in Uttar Pradesh Police.

13. Thirdly, the impugned order was passed without 7

issuance of notice to the GDA on the first material date of hearing,

and, merely on the ground of statements made by the counsel.

They assert that GDA had not issued any instructions regarding

compromise of the matter and had notices been issued, the truth

could have been discerned.

Contentions on behalf of the respondent

14. On the other hand, the learned counsel on behalf of the

allottee has made twofold submissions.

15. Firstly, it is a settled law that a person in peaceful and

settled possession cannot be forcefully dispossessed. The allottee

claims its possession by virtue of allotment letter dated

05.10.1994 which was lawfully issued by the GDA. Accordingly, it

is pleaded that there could be no dispossession except by due

process of law.

16. Secondly, it is contended that the appellants owing to

their own act of negligence, arbitrarily demanded exorbitant price

of the property, and, thereafter forcibly sought to dispossess the

allottee.

REASONING

17. It is abundantly clear that the allottee was allotted 8

House No. E­376 under the hire­purchase scheme vide letter

dated 05.10.1994 by the GDA. The allottee’s conduct of delayed

payment with respect to the allotment is evident from the fact that

even the balance registration amount of Rs. 38,325/­ which was

required to be deposited within a week from the issuance of letter

dated 05.10.1994 was actually deposited on 17.10.1994. Further,

the deposits made thereafter, were also done so without following

any schedule as is evident from the facts stated hereinabove in

para No.4. In fact, the last deposit of the balance amount above­

mentioned was made almost after three and half years which led

to cancellation of allotment by the GDA. It is only on the

subsequent representation being made to the GDA that a direction

was issued to deposit Rs.20,00,000/­ within 15 days for the

restoration of the cancelled allotment. In the light of this factual

matrix it becomes clear that the allottee has not honored the

stipulations of the hire­purchase scheme under which allotment of

House No. E­376 was made to her.

18. Pursuant to this came the first round of litigation

wherein the Writ Petition (Civil) No.28834 of 2004 was filed in the

Allahabad High Court by the allottee, challenging the order of GDA

seeking payment of Rs.20,00,000/­ within 15 days for the 9

restoration of the cancelled allotment. This writ petition eventually

culminated in an order dated 17.05.2016 wherein the same was

dismissed for having no merit after a detailed reasoning and

imposition of cost of Rs.5,000/­ on the allottee. Despite the final

order of the High Court, the allottee continued with the

unauthorized possession of the property. This is indicative of the

lack of bona fides on part of the allottee.

19. Accordingly, the GDA issued a letter to the District

Magistrate, Ghaziabad dated 10.01.2018 for the eviction of the

allottee from the property in question. It is pursuant to this letter,

that the second round of litigation started.

20. The allottee’s assertion is twofold. Firstly, the GDA

owing to its act of negligence, arbitrarily demanded exorbitant

price of the property and thereafter forcibly sought to dispossess

the allottee and, secondly, it is a settled proposition of law that a

person in peaceful and settled possession cannot be forcefully

dispossessed which can only be done by following due process of

law. The latter is very much true. However, it is to be noted that,

the allottee claims possession by virtue of allotment letter which

was lawfully issued by the GDA dated 05.10.1994. It is this very

letter that incorporates the terms and conditions that the amount 10

is to be paid within the prescribed time limits failing which a penal

interest at the rate of 21% would be charged, and, further, if

default continues for a further period of three months from due

date, inclusive of penal interest, then the allotment shall be

treated as cancelled. The conduct of the allottee as evident from

paragraphs 17 and 18 not only fall foul of the terms and

conditions envisaged under the allotment letter issued under the

hire­purchase scheme but also shows that she has approached

the Court with unclean hands. With reference to the possession of

the allottee, the eviction was sought pursuant to the order of the

Allahabad High Court dated 17.05.2016 which upheld the

cancellation of the allotment, and, thus, fulfils the due process of

law requirement.

21. It is well­settled principle of law that unlawful

possession of public property without having paid for the same

would tantamount to unjust enrichment and would be against

public interest. We find support for the abovementioned

proposition in Delhi Development Authority v. Anant Raj

Agencies (P) Ltd.1 wherein this Hon’ble Court speaking by Justice

V. Gopala Gowda has noted that,

1 . (2016) 11 SCC 406 11

“38. The original lessee has been in unauthorised occupation of the property in question for around 30 years (till he executed a sale deed in favour of the respondent) and the respondent has been illegally inducted in possession of the same, by the original lessee, who himself was in unauthorised possession of the property. For around 17 years the respondent has been enjoying the property in question without any right, title or interest. Thus, both are liable to pay the damages for unauthorised occupation and DDA is empowered under Section 7 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 to claim damages from them. We record this finding in exercise of our appellate power in view of our finding and reasons assigned in this judgment holding that the concurrent finding is not only erroneous but also suffers from error in law in granting decree of permanent injunction in favour of the respondent who is not entitled in law for the same. There is a miscarriage of justice in granting the relief by the courts below in favour of the respondent. Further, keeping in view the public interest involved in this case and particularly having regard to the peculiar facts and circumstances of the case we have to allow 12

this appeal of DDA.

39. Since we have answered the points framed in this appeal in favour of the appellant DDA, we further, direct DDA to take possession of the property immediately without resorting to eviction proceedings, as the respondent has been in unauthorised possession of the property in question, by virtue of erroneous judgments passed by the courts below. The respondent has been unlawfully enjoying the public property which would amount to unlawful enrichment which is against the public interest.”

(emphasis supplied)

22. These observations were made in the context of a lease

being granted by the Delhi Development Authority getting

terminated by efflux of time despite which the lessee continued in

unauthorized possession of the same. The same principle is

applicable in our context wherein allotment of a house is made by

GDA. The unauthorized occupation of public property is contrary

to public interest. Further, the manner in which it is done by

multiple rounds of protracted litigation shocks our judicial

conscience wherein unauthorized possession of a public property

of GDA has been continued for over 14 long years. It is nothing 13

but an abuse of process of law.

23. At this juncture, we found that the effect of the disposal

of Writ Petition Civil No.7928 of 2018 by the Allahabad High Court

is in essence a nullification of the order dated 17.05.2016 in Writ

Petition Civil No.28834/04 of its own co­ordinate Bench. This

approach is highly condemnable as, firstly, it is against judicial

propriety to issue orders contrary to the orders of its own co­

ordinate Bench, as the same had attained finality. Judicial

discipline mandates respecting of orders of co­ordinate Benches of

the High Court. Secondly, the manner in which the order is made

without even issuance of notice to the GDA on the first material

date of hearing goes against the cherished Principle of Natural

Justice, audi alteram partem, the right to fair hearing. This is of

immense importance vis­à­vis the assertion of the GDA that it had

not issued any instructions regarding compromise of the matter

that was ordered by the Allahabad High Court in its

abovementioned order. Had the rule of audi alteram partem been

followed and notices issued, the truth could have been discerned.

24. Thus, in light of the observations made above, the

appeal is allowed. The order of the Allahabad High Court in Writ

Petition Civil No.7928 of 2018 dated 21.03.2018 is set aside and it 14

is directed that the allottee be evicted forthwith. The appellants are

at liberty to take the assistance of local police for getting the

peaceful possession of the property in question.

25. There shall be no order as to costs.

Civil Appeal No.10671 of 2018 (arising out of SLP (C) No. 12881 of 2018)

26. Leave granted.

27. As the instant appeal is filed against the same

impugned order dated 21.03.2018 passed by the High Court of

Judicature at Allahabad in Writ Petition (C) No.7928 of 2018, the

same is also disposed of in terms of the order passed in C.A.

No.10670 of 2018 (arising out of SLP(C)No.11206 of 2018).

28. There shall be no order as to costs.

...........................J. (N.V. RAMANA)

……………………............................J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI;

OCTOBER 23, 2018.