# Ali Johad Naqvi v. Allahabad Development Authority and another

- **Citation:** (2001) 2 ILRA 27
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-03-31
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-johad-naqvi-v-allahabad-development-authority-and-another-39900
- **Pages:** 3

## Text

2All] Ali Johad Naqvi V. Allahabad Development Authority and another

by the court below does not go too far.
The decision is required to be setaside as
it is not according to law.

13. I am conscious of the fact that
ordinarily, higher court should refrain
from remanding the case to the lower
court as it results in further consumption
of time. But there may be some
exceptional cases, like the present one,
where the controversy cannot be decided
without remanding the case as this court
would be chary enough to permit the
parties to lead evidence in the revisional
proceedings for the determination of the
controversy, in hand the matter of
necessity it has to be sent back to the trail
court. it would not be proper for this court
exercising the revisional jurisdiction to
summon the documents and then to record
evidence. This course would be expedient
as it will be open both to the landlord as
well as tenant to produce better municipal
evidence in the light of what has been
indicated above.

14. In the result, for the reasons
mentioned above, the reasons mentioned
above, the revision application is allowed
and the impugned judgement and decree
dated 31.03.1998 passed by 5th Additional
District Judge, Mathura in S.C.C. suit no.
17 of 1989 are hereby set aside. The case
is remanded to the court below for
decision afresh according to law in the
light of observation made in the body of
this decision. In view of the fact that the
case was instituted about 12 years back,
the trail court, subject to active cooperation and regular participation of the
parties, will decide the same with all
expedition, preferably within four months.
The parties are directed to appear before
the trail court on 03.04.2001.

15. The Deputy Registrar concerned
of the Registry of this court shall ensure
that the original record of the case along
with a copy of this judgement is returned
so that it may reach the trail court before
the date specified above.
Revision Allowed.

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28 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
By the Court

1. On the refusal by the respondentAllahabad
Development
Authority to
refund Rs.1,49,250/- deposited by the
petitioner for the allotment of the shop in
question, the petitioner has filed this
Petition under Article 226 of Constitution
of India, praying for quashing the notice
dated 22.12.1987 (Annexure '8' to the
writ petition), and for commanding the
respondent-Allahabad
Development
Authority to refund the said amount.

2. The case of the petitioner, as
disclosed in the writ petition, is that in
pursuance of the scheme floated by the
Allahabad Development Authority, he
applied for allotment of the shop in
question
and
deposited
in
All
Rs.1,49,250/- for the same, but the
possession was not given to him for about
two and a quarter years. His case, further,
is that the parties are governed by a
written contract and in terms of condition
no. 1-8 thereof, he could obtain refund of
the money deposited by him with interest
in case no floor space is given to him
within a period of two years since the date
of registration. He, accordingly, moved an
application dated 26.06.1987 for the
refund of the money deposited by him,
but
the
respondent-Allahabad
Development
Authority
instead
of
refunding the said amount, issued a letter
dated 22.12.1987 calling upon him to pay
a sum of Rs.2,04,016.40, in order to get
the
said
letter
dated
26.06.1987
considered.

3.

In
paragraph
9
of
the
supplementary counter affidavit of S.C.
Srivastava, Secretary of the Allahabad
Development Authority, it is mentioned
that out of the total amount deposited by
the petitioner, a sum of Rs.1,45,165/- has
been paid to the petitioner and the balance
amount has been forfeited under the terms
and conditions of allotment and the rules
framed under the U.P. Urban Planning &
Development Act, 1973 as the petitioner
has failed to comply with the said terms
and conditions. In paragraph 10 of the
supplementary rejoinder affidavit, the
petitioner has admitted the said payment.
Thus, the petition is confined only to the
relief of the refund of the balance amount.

4. It is relevant to notice that from
the averments made in the writ petition it
is evident that the petitioner is seeking to
enforce condition no. 1-8 of the Contract.
Thus, the basis of the claim of the
petitioner is the contract between him and
the respondent-Allahabad Development
Authority.

5. Here the question that arises for
consideration is whether the jurisdiction
under Article 226 of the Constitution of
India could be invoked for enforcing the
contract between the petitioner and the
respondent-Allahabad
Development
Authority.

6. In the judgement rendered in
Bareilly Development Authority and
another vs. Ajai Pal Singh and others,
reported in A.I.R. 1989 Supreme Court
1076, the Hon'ble Supreme Court relying
upon Radhakrishna Agarwal Vs State of
Bihar, reported in (1977) 3 Supreme
Court Cases 457, Premji Bhai Parmar Vs.
Delhi Development Authority, reported in
(1980)2 Supreme Court Cases 129, and
D.F.O. vs. Biswanath Tea Company
Limited, reported in (1981) 3 Supreme
court Cases 238, has held that "there is a
line of decisions where the contract
entered into between the State and the
2All] Mohan Lal and others V. State of U.P. and another

persons aggrieved is non statutory and
purely contractual and the rights are
governed only by the terms of the
contract, no writ or order can be issued
under Article 226 of the Constitution of
India so as to compel the authorities to
remedy a breach of contract pure and
simple.

7. In view of the principles
enunciated by the Hon'ble Supreme Court
in the aforementioned case, it must be
held that the writ jurisdiction under
Article 226 of Constitution of India could
not be invoked by the petitioner for
enforcing the contract between him and
the respondent-Allahabad Development
Authority.

8. Thus, the petitioner is not entitled
to the relief claimed in the petition.
Accordingly, the petition is dismissed, but
without any order as to costs.
Petition Dismissed.

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By the Court

1. Heard learned counsel for the
applicants and learned AGA.

2. I have perused the annexures filed
along with the affidavit filed in support of
the application as well as counter affidavit
and the judgement delivered by Civil
Judge, Senior Division, Chtrakoot against
the applicant Krishna Mohan in a suit
filed by him seeking divorce under
Section 13 of the Hindu Marriage Act
from the daughter of respondent no. 2.

3. The allegations in the first
information report are that the bride after
the marriage is solemnised is not sent to
the bridgroom's house according to
custom prevalent in their society. She is
sent there after gauna ceremony is
performed. After some days of the
marriage the informant has learnt thourhg
Mohan Lal and Diwanpal residents of
Bhawanipur that her husband and father-