# Kripa Shanker Singh v. Lucknow Development Authority, Lucknow & Ors

- **Citation:** (2022) 9 ILRA 292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-07
- **Case number:** Writ C No. 10792 of 2013
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kripa-shanker-singh-v-lucknow-development-authority-lucknow-ors-49010
- **Pages:** 11

## Headnote

C.S.C., Gaurav Mehrotra, Kumar Ayush,
Rahul Shukla

A.
Local
bodies
-
Ownership
-
Allotment of house - Hire purchase
agreement - Default in payment of
installment
-
Effect
-
Forceful
dispossession
by
the
Development
Authority
-
Validity
challenged
-
Liability of authority described - Held,
the financier, the L.D.A., is the real
owner of the house in a Hire purchase
agreement
-
There
can
be
no
impediment to the financier taking
possession of the vehicle when the
hirer
does
not
make
payment
of
installments/hire charges in terms of
the
Hire
purchase
agreement
-
However, any forceful dispossession is
illegal and any dispossession has to be
as per the due process of Law. (Para
15)
B. Constitution of India - Article 226 -
Writ - Alternative remedy - Rights
accrued
under
the
hire
purchase
agreement - Enforcement - Civil court
jurisdiction - Held, allotment and the
right flowing from the hire purchase
agreement has to be adjudicated and
proved
by
leading
evidence
in
a
competent court of civil jurisdiction -
When there is an alternative efficacious
remedy
available,
the
special
and
extraordinary remedy available under
Article 226 of the Constitution of India
cannot be exercised. (Para 19 and 20)
Writ petition dismissed. (E-1)
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
293
List of Cases cited:-

## Text

292 INDIAN LAW REPORTS ALLAHABAD SERIES
substances
and
conveyances
were
discussed and there was no occasion to
consider the matter of release or the interim
custody of the vehicle (conveyance).

28. So on the basis of above
discussions, this Court is of the opinion that
law laid down by the Apex Court in
Sunderbhai Ambalal Desai (supra) will
apply to the vehicle seized under the NDPS
Act as well. Thus, the Magistrate/ Special
Judge, NDPS Act shall have power to
consider the application for the interim
custody of the conveyance/ vehicle under
the provision of Section 451 and 457 of
Cr.P.C.

29. The finding of the trial court that
the Drug Disposal Committee would
dispose of the vehicles seized under NDPS
Act is against the mandate of the Apex
Court in Union of India Vs. Mohanlal
and another (supra).

30. The revision is hereby allowed.
The order dated 29.10.2021 passed by the
Special Judge N.D.P.S. Act/ Additional
Session Judge, Court No.6, Allahabad in
Misc. Case No.381 of 2021, arising out of
Case Crime No.19 of 2021, under Sections
8/20/27A/ 29 N.D.P.S. Act, Police Station
Lucknow NCB, District Prayagraj is hereby
set aside. The revisionist is directed to
appear before the court concerned within a
period of 15 days from today to get his
application decided on the basis of law
discussed above.
----------
(2022) 9 ILRA 292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.
Writ C No. 10792 of 2013

Kripa Shanker Singh ...Petitioner
Versus
Lucknow
Development
Authority,
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kripa Shankar Rai

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Kumar Ayush,
Rahul Shukla

A.
Local
bodies
-
Ownership
-
Allotment of house - Hire purchase
agreement - Default in payment of
installment
-
Effect
-
Forceful
dispossession
by
the
Development
Authority
-
Validity
challenged
-
Liability of authority described - Held,
the financier, the L.D.A., is the real
owner of the house in a Hire purchase
agreement
-
There
can
be
no
impediment to the financier taking
possession of the vehicle when the
hirer
does
not
make
payment
of
installments/hire charges in terms of
the
Hire
purchase
agreement
-
However, any forceful dispossession is
illegal and any dispossession has to be
as per the due process of Law. (Para
15)
B. Constitution of India - Article 226 -
Writ - Alternative remedy - Rights
accrued
under
the
hire
purchase
agreement - Enforcement - Civil court
jurisdiction - Held, allotment and the
right flowing from the hire purchase
agreement has to be adjudicated and
proved
by
leading
evidence
in
a
competent court of civil jurisdiction -
When there is an alternative efficacious
remedy
available,
the
special
and
extraordinary remedy available under
Article 226 of the Constitution of India
cannot be exercised. (Para 19 and 20)
Writ petition dismissed. (E-1)
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
293
List of Cases cited:-
1. M/S Magma Fincorp Ltd. Vs Rajesh Kumar
Tiwari; (2020) 10 SCC 399
2. Charanjit Singh Chadha & ors. Vs Sudhir
Mehra; (2001) 7 SCC 417
3. K. L. Johar and Company Vs Deputy
Commercial Tax Officer; AIR (1965) SC 1082
4. Anup Sarmah Vs Bhola Nath Sharma & ors.;
(2013) 1 SCC 400
5. Laxmi Raj Shetty & anr. Vs St. of T.N.; (1988)
AIR 1274
6. Sawarni Vs Inder Kaur; (1996) 6 SCC 223
7. Balwant Singh & anr. Vs Daulat Singh (Dead)
by Lrs. & ors.; (1997) 7 SCC 127
8. Narasamma & ors. Vs St. of Karn. & ors.;
(2009) 5 SCC 591
9. Roshina T Vs Abdul Azeez K.T.; (2018) SCC
Online 2654
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Vishwajeet Rai, Advocate
holding brief of Sri Kripa Shankar Rai, learned
counsel for the petitioner, learned Standing
Counsel for the State authorities and Sri
Kumar Ayush, learned counsel representing
the Lucknow Development Authority.

2. By instituting these proceedings
under Article 226 of the Constitution of India,
the petitioner-Kripa Shanker Singh has
prayed that the opposite party nos.1 to 4 may
be
directed
for
registry
of
House
No.M/213/G, L.D.A. Colony, Kanpur Road
Yojna, Lucknow in his favour. Further, the
petitioner has also prayed that the registry of
the said house may not be done in favour of
opposite party no.7. Although the Senior
Superintendent of Police, Lucknow and the
Station
House
Officer,
Police
Station
Ashiyana, District Lucknow have been
arrayed as opposite party nos.5 and 6
respectively, however, no prayer has been
made by the petitioner against them.

3. The case set up by the petitioner in
the writ petition is that one Smt. Kavita
Singh was issued a letter dated 22nd
January, 1992 informing her that her
application dated 03.01.1992 was accepted
by the Lucknow Development Authority
for allotment of Plot No.A/863/I, L.D.A.
Colony, Kanpur Road Yojna, Lucknow. It
seems thereafter the said Smt. Kavita Singh
has applied for alternate plot to the
Lucknow Development Authority, which
was
allowed
vide
an
order
dated
13.09.1996 and as such an alternate
property being M/213/G, was allotted to
said Smt. Kavita Singh for and in place of
the earlier plot in the same locality. The
petitioner has relied on a document dated
23.09.1996 issued by L.D.A. informing the
said Kavita Singh that the petitioner's
request and affidavit have been accepted by
them and as such the plot allotted was
allowed to be transferred to the petitioner
on the same terms and conditions. It is the
further
case
of
the
petitioner
that
subsequently a "Hire purchase agreement"
was executed in his favour by L.D.A. on
25.09.1996 for the said property number
M/213/G
for
a
consideration
of
Rs.2,63,900/- on hire purchase basis and
pursuant to which he was also issued a
possession letter dated 25.09.1996 for the
said property. The tenure for the said hire
purchase agreement was 20 years and it
was expected that L.D.A. would execute
the sale deed for the said plot after the
completion of the said tenure of hire
purchase agreement.

4. It is the further case of the
petitioner that the actual possession was
given to him by the L.D.A. on 27.09.1996
by the Engineer concerned. The petitioner
relied on an unverified computer sheet
purported to be a report dated 15.10.2005,
estimated for registry by the L.D.A.
294 INDIAN LAW REPORTS ALLAHABAD SERIES
depicting a payment of Rs. 51,700/- made
against the property in question and
narrating
the
installment
information
relating to the said property. The learned
counsel
also
relied
on
an
internal
register/document purported to be of
L.D.A. wherein name of the petitioner is
reflected at serial no.61 and various
payments to have been made, although
dates of payments are mentioned in the said
extract of register but no dates have been
mentioned therein. The learned counsel
referring to the said documents has argued
that since the name of the petitioner finds
mentions in the records of the L.D.A., he
should be construed as the only rightful
owner of the property M/213/G, L.D.A.
Colony, Kanpur Road Yojna, Lucknow.

5. The learned counsel continuing with
his arguments vociferously went on to submit
and rely on several documents relating to the
raising and payment of house tax, water tax
and electricity bills raised by the concerned
Department and paid by the petitioner over a
passage of time to further his argument
relating to the petitioner being the rightful
allottee of the property in question. Further,
an internal document of the L.D.A. relating to
a list of plot/building numbers and the
allotees name, for which it was proposed to
open a duplicate application for registration
purpose as on 23.12.2008 has also been relied
upon by the petitioner. However, the next
document brought to the notice of this Court
shows that although the petitioner's name is
registered in the computer sheet printed and
annexed as Annexure-18 to the writ petition,
but there is no explanation as to why the
registration and issue date of the said
registration is 17.01.1984, when actually the
plot was not even in existence.

6. The petitioner has vehemently relied
on the form for registration for one time
settlement (O.T.S.) filled by the petitioner on
02.12.2008, wherein the date of allotment has
been mentioned as 13.09.1996 to explain that
there
was
some
discrepancy
in
the
registration and the issue date, however, again
we are not able to find any document on
record, which would show that any objection
had been filed by the petitioner with the
L.D.A. for correcting the said error. In fact, it
is the other way around, wherein the
petitioner vide letter dated 10.12.2009
although has represented the L.D.A. for
considering the O.T.S. by mentioning the
opening of the duplicate application for
registration purpose, however any mention of
the correction in the computer record was
conspicuously absent. It is seen that the
petitioner
had
been
giving
series
of
representations in similar manner as is
apparent from the letter dated 25.04.2010,
27.01.2012 but without any results, although
the
petitioner
was
made
to
deposit
Rs.26,000/- with the L.D.A. for processing
and administrative fees on 27.02.2012,
Rs.50,000/- on 14.06.2012, Rs.45,000/- on
21.10.2013. Consequently, it is the case of the
petitioner that he has also got sent a
complaint to the Director General of Police,
Lucknow relating to some named property
dealers and some unidentified persons
approaching him and intimidating to vacate
the property as purportedly these new persons
have told him that they have purchased the
plot
in
question
from
the
Lucknow
Development Authority. These letters dated
19.10.2013 was alleged followed by another
letter dated 21.10.2013 to the L.D.A. and
31.10.2013 to the Secretary, L.D.A. It is the
case of the petitioner that since the opposite
parties did not heed to his request, he was left
with no alternative but to file the present writ
petition.

7. Learned counsel for the opposite
parties no.1 to 6 appeared on advance
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
295
notice and as such notice was issued to the
opposite parties no.7 on 20.11.2013,
wherein all the parties were directed to file
their counter affidavit and rejoinder thereto
and status-quo with regard to possession of
plot in question was directed to be
maintained.

8. The assertions made in the writ
petition have categorically been denied by
the Lucknow Development Authority in the
counter affidavit filed by the O.S.D.,
Lucknow Development Authority, wherein
they specifically mention that the petitioner
was not the alltotee of House No.M/213/G,
Kanpur Road, L.D.A. Colony, Lucknow
and he was never allotted the said house.
They have denied having given any
possession. It was mentioned that the
computer generated receipt (Anneuxre-1) is
in the name of opposite party no.7
(Vishwambhar Nath Dubey) is of dated
20.09.2004 and it does not have any
bearing to the petition as the opposite party
no.7 has no relation with the petitioner.
They further stated on affidavit that the
documents filed by the petitioner are forged
and no agreement of any nature was
executed by them with the petitioner. The
authority has stated in its affidavit that no
receipt has been filed by the petitioner
under the cash sale procedure which could
establish registration of the said plot in
favour of the petitioner because as per their
contention and as per the Rules, without
registration, allotment of plot is not
possible. They raised doubt on the filing of
Anneuxre-4 filed in the writ petition, which
according to them was an advance payment
of one shop in paper mill and as such
verification cannot be done by them. The
L.D.A. has also stated that in the cash sale
allotment scheme, the registration cost was
10% of the sale consideration and until
such registration by depositing 10% of the
sale consideration is not made it was not
possible for any allotment under the law.
The L.D.A. has also raised an issue relating
to possession and mutation not being in
favour of Smt. Kavita Singh and as such
they submit that since Kavita Singh was not
given possession or her name was not
mutated, how she could have transferred
the property in question to the petitioner.

9. Learned counsel for L.D.A. has
also highlighted the aspect that as per the
identity card annexed with the writ petition,
the petitioner's birth year was depicted as
1983 and in case the execution of the
document was proposed to be found
correct, the same was not legally tenable
and void as the petitioner was merely 13
years in the year 1996 and as such any
document signed by him does not hold any
legal sanctity. The counsel for the L.D.A.
has also drawn the attention of the Court to
the affidavit filed in support of the present
writ petition, which mentions the age of the
petitioner as 30 years and as such he
reiterates that since the petitioner on the
year of filing of the writ petition i.e. 2013
was 30 years, he ought to have been of 13
years in the year 1996 and as such he
claims that all the documents filed by the
petitioner are forged, even the age claimed
by him is forged and as such the petitioner
is not entitled for any relief from this Court.

10. Lucknow Development Authority
has denied the deposit of Rs.50,000/-
(Annexure-9A) and have claimed that it
bears no date and they have further
challenged the aspect of procurement and
filing of photocopy of disposal register, as
it was an internal document of the L.D.A.
They have claimed that the documents are
self-manufactured and forged and as such
has called for serious action against the
petitioner. Regarding the procurement of
296 INDIAN LAW REPORTS ALLAHABAD SERIES
electricity and water connection, L.D.A.
has stated that it might have been procured
on the basis of forged documents by the
petitioner.

11. The petitioner filed his rejoinder
almost reiterating the stand taken by him in
the writ petition. The petitioner repeatedly
referred to the computer costing estimate
made by the L.D.A. on 05.10.2005 and a
list of defaulters allegedly published by
L.D.A. in newspaper on 22.02.2011,
wherein
the
petitioner's
name
was
mentioned, to buttress his argument about
the allotment made to the petitioner. He
referred to various documents filed along
with the rejoinder affidavit and claimed that
an agreement with a minor was not void
but voidable. He contends that the
documents filed are genuine and he states
that there were no takers of plot under
Kanpur Road Yojna at that point of time
and in case any person chose and applied
for allotment, then L.D.A. was obliged to
allot those plots and house and possession
used to be given after complying with the
legal formalities.

12. The petitioner in rejoinder also
stated that the L.D.A. had not disclosed to
him the balance amount due as on the
present time. As regarding the working of
Lucknow
Development Authority,
the
petitioner relies on newspaper clip of Amar
Ujala dated 20.03.2016 and 16.07.2015 to
further his point that fabrication of registry
is rampant in L.D.A. In the news clip 18
plots have been found to be having a forged
registry. He states that enquiry relating to
40 plots were initiated by L.D.A. on which
18 were found to be forged and his plot
number does not figure in the said list and
in any case action has be taken against
L.D.A. officials who have been working
collusively with people for allotment of
plots, which actually were never allotted to
this person by preparing forged documents.
The petitioner has also filed certain deposit
slips relating to Kavita Singh, O.T.S. fees
paid by the petitioner etc. He has also filed
L.D.A. portal registration details as on
10.09.2017, which shows his name in the
said portal and also mentions that Rs.
78,000/- stands paid on various dates.
Towards the end, the petitioner has filed
electricity bill, water tax and house tax paid
by him till date. As regards the variants in
the birth date in voter I.D. and PAN, he
claims that he belongs to a poor family and
the same has been mistakenly printed and
immediately after coming to his knowledge
has applied for correction. The petitioner
has filed his Aadhar card wherein he has
declared his date of birth as 01.0.1974,
however, the PAN card again shows his
date of birth as 01.01.1984.

13. Having heard the learned counsel
appearing for the parties and perused the
record of the writ petition available before
us,
we
have
considered
the
rival
submissions, but are unable to convince
ourselves with the submissions and prayers
made by learned counsel for the petitioner
for various reasons as would follow
hereinafter.

14. As per the petitioner, the plot
house in question was allotted to him by
L.D.A. vide a Hire purchase agreement
dated
25.09.1996
for
a
total
sale
consideration of Rs. 2,63,900/- of which
Rs.46,000/- has been mentioned to be paid
as part payment of the sale consideration
and the balance money was payable at the
rate of Rs.2539.35 in equal monthly
installments payable in advance within first
week of each due English calendar month
spread over a period of 20 years. Thus, as
per the said analogy, the total amount to be
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
297
paid
by
the
petitioner
would
be
Rs.6,09,440/- having been paid as equal
monthly installments plus Rs.46,000/-
having paid as part payment at the time of
Hire purchase agreement, which totals to
about
Rs.6,55,4e40/-,
provided
the
petitioner has paid all the equal monthly
installments
on
time,
this
court
painstakingly undertook to understand the
said mathematical
calculation as the
fulcrum of the writ petition is a direction to
L.D.A. for getting a property registered in
favour of the petitioner, a right which kicks
in when the entire sale consideration stands
paid to the authority. Paragraph 5 of the
Hire purchase agreement in as many word
says clearly:

"5. that upon payment of all the
installments in respect of the demised
property by the purchaser the seller will
execute the sale deed of the aforesaid house
the land in favour of the purchaser."

Similarly, paragraph 12 and 13,
which are relevant to the context, inter alia
says:

"12. That in case of default of
payment for continuous three regular
installments on the part of the purchaser,
the seller shall have every right to
terminate this agreement or to take any
action against the purchaser and the
purchaser shall be bound to surrender the
property with the seller, as directed in a
notice issued by L.D.A.

13. That the seller on re-entry
consequent upon the termination of this
agreement will be entitled to sell the
demised property in favour of any third
persons."

15. A conjoint reading of paragraphs
5, 12 and 13 of the Hire purchase
agreement would mean that the L.D.A. can
be called upon to execute a sale deed only
after all the installments in respect of the
subject property is paid, which is the last
stage of relationship between purchaser and
his seller. In the interregnum, paragraph 12
and 13 has to be pressed for service, in case
of default of payment for continuous three
regular installments on the part of the
purchaser. In default, L.D.A. may terminate
the agreement and after termination may
reenter the property and sell it to any third
party. This Court is bereft of any evidence
on record, which could show that the
petitioner had defaulted and on his default
any action has been taken by L.D.A. or that
L.D.A. has reentered the property and sold
to some other third party. Neither of the
sides have assisted this Court on the said
aspect and the only reply which has come
from L.D.A. is that they have not made any
allotment to the petitioner and as such there
was no question of termination or re-entry.
While that question would have been
pertinent to adjudicate the matter in its right
perspective, especially when the matter had
been pending for nearly a decade, however
complacency of both the petitioner and
L.D.A. in not finally getting the matter
adjudicated is quite rife as the petitioner
has on the one hand filed huge numbers of
documents of which mostly are irrelevant
to establish his allotment of the house in
question, whereas on the other hand L.D.A.
did not choose to file any documents to
justify and substantiate its ground as
mentioned in the counter affidavit. As
regards the Hire purchase agreement,
which forms the key to claim the allotment
of the house by the petitioner is concerned,
the law relating to ownership in such kind
of arrangement stands settled by the
Hon'ble Supreme Court. The ratio of the
judgment passed by Hon'ble Supreme
Court in the case of M/S Magma Fincorp
Ltd. VS Rajesh Kumar Tiwari, (2020) 10
SCC 399 is relevant to the context, wherein
298 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Apex Court relying on its
earlier judgments passed in Charanjit
Singh Chadha And Ors. Vs. Sudhir
Mehra, (2001) 7 SCC 417, K. L. Johar
and Company Vs. Deputy Commercial Tax
Officer, AIR (1965) SC 1082, Anup
Sarmah Vs. Bhola Nath Sharma & Others
(2013) 1 SCC 400, held that the financier,
which in this case is the L.D.A., is the real
owner of the house in a Hire purchase
agreement. The court in that case, as it was
relating to financing of the vehicle in that
case, held that the financier being the
owner of the vehicle which is a subject of a
Hire purchase agreement, there can be no
impediment
to
the
financier
taking
possession of the vehicle when the hirer
does not make payment of installments/hire
charges in terms of the Hire purchase
agreement. However, such repossession
cannot be taken by recourse to physical
violence,
assault
and/or
criminal
intimidation. Nor can such possession be
taken by engaging gangsters, goons and
muscleman or so called recovery agents.
The ratio of the said judgment applies to
the present case on all its four corners.
Although, L.D.A. might have some right
under the hire purchase agreement, but
again as held by the Hon'ble Supreme
Court the same is subject to due process of
law and L.D.A. cannot take recourse to
violence, assault or intimidation, nor the
said dispossession can take place with
engaging goons or muscleman. We are
conscious of the fact that the petitioner has
filed a complaint relating to his forceful
dispossession from the house in question,
but it seems there is no real threat to his
dispossession and as such no relief has
been claimed by the petitioner against the
police authorities in the writ petition. In
any case, the petitioner shall always have
the benefit of the settled position of law
that any forceful dispossession is illegal
and any dispossession has to be as per the
due process of law.

16. The next issue raised in the
petition is relating to the installment
amount paid or the part payments made.
The petitioner has heavily relied on
numerous documents filed by him in the
writ petition, which shows the following
payments made by the petitioner; (i)
Rs.46,000/- on 10.09.1996, (ii) Rs. 3000/-
paid on 22.08.2005, (iii) Rs.2500/- paid on
26.08.2005, (iv) Rs.50,000/- paid on
01.03.2007,
(v)
Rs.26,000/-
paid
on
27.02.2012, (vi) Rs.50,000/- paid on
14.06.2012, and (vii) Rs.45,000/- on
21.10.2013. Although, L.D.A. has strongly
objected to the receipt and veracity of these
payments made by the petitioner, however,
even for the sake of argument, if these
payments are construed to be correct and
paid to the L.D.A. for the plot/house in
question, the petitioner as per his own
showing has made only payments of
Rs.2,22,500/- against the total amount of
Rs.6,55,440/- or Rs.15,05,465/- as on
22.02.2011 as notified in the newspaper
publication
relied
by
the
petitioner.
Although, the petitioner has filed an
application for O.T.S. in the year 2013,
however
again
the
said
O.T.S.
proposal/application is cryptic and does not
mentions as to what demand has been
raised by the L.D.A. as in 2013 or what is
the offer of the petitioner under said O.T.S.
In any case, the pendency of O.T.S. does
not take the petitioner anywhere as the
L.D.A. has been denying any relationship
with the petitioner in their counter affidavit
filed to the present writ petition.

17. The petitioner has strenuously
relied on the aspect that his name appears
in an internal document of the L.D.A.,
wherein it has been mentioned and
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
299
proposed to open duplicate files of certain
persons including the petitioner. First and
foremost, this court was unable to elicit any
answer from the parties as to how and in
what perspective these duplicate files were
to be opened by the L.D.A. Secondly, since
it was an internal document of L.D.A., how
the petitioner was able to lay his hands on
the said document and finally it is no
body's case as to what eventually happened
to this document and as to whether it was
acted upon by the L.D.A. and as to any
duplicate files were actually opened by the
petitioner or not as pertinently the said
internal communication not only mentions
the name of the petitioner, but also 31 other
persons.

18. There is another aspect of the
matter, as per the own showing of the
petitioner a default list was published by
the L.D.A. on 22.02.2011, which mentions
the name of the petitioner as defaulter for
Rs.15,05,465/-, which the petitioner may
argue to show that he is a bona fide allottee,
however in the same breath it also means
that the petitioner had admitted to be
defaulting in payment as it is for that
reason only that his name might have
appeared in the default list published by the
L.D.A. Additionally, the petitioner has
referred to news clip of Amar Ujala dated
20.03.2016, 16.07.2015 and 24.01.2018,
Hindustan dated 18.01.2018 to further his
point that fabrication of registry is rampant
in L.D.A. and 18 plots have been found to
be having a forged registry against the total
enquiry of 40 plots. This Court fails to
understand as to how this newspaper
clipping would further the case of the
petitioner. The enquiry relating to 40 plots
having been initiated by the L.D.A. and
actions
being
proposed
against
the
delinquent officers of L.D.A. and a having
F.I.R. filed against the erring officers of
L.D.A., in fact dilutes the case of the
petitioner and furthers the case of the
opposite party-L.D.A., who has been
consistently
in
the
counter
affidavit
denying any relationship and terming all
the documents filed by the petitioner as
forged.
In
any
case,
the
evidentry
significance of these newspapers clippings
cannot be taken into consideration in this
summary
proceedings.
The
Hon'b;e
Supreme Court of India in the case of
Laxmi Raj Shetty and anotehr Vs. State
Of Tamil Nadu, [(1988) AIR 1274], held as
follows:

"Judicial notice cannot be taken
of the facts stated in a news item being in
the nature of hearsay secondary evidence,
unless proved by evidence aliunde. A report
in a newspaper is the only hearsay
evidence. A newspaper is not one of the
documents referred to in Section 78 (2) of
the Evidence Act, by which an allegation of
fact can be proved.

The presumption of genuineness
attached under Section 81 of the Evidence
Act to a newspaper report cannot be
treated as proof of facts reported therein. It
is now well-settled that a statement of fact
contained in a newspaper is merely hearsay
and, therefore, inadmissible in evidence in
the absence of the maker of the statement
appearing in Court and deposing to have
perceived the fact reported."

19. The next point raised by the
petitioner is relating to payment of various
electricity bills, water bills and the house
tax paid to the concerned authorities over a
passage of time for the house in question.
Although, the respondent/L.D.A. has given
an innocuous reply that the same has been
obtained on the basis of forged documents,
but again neither of the parties have taken
pain to prove this document, which could
300 INDIAN LAW REPORTS ALLAHABAD SERIES
be by way of leading evidence. No doubt
the electricity bills, water bills and house
tax gives an impression of the possession of
the plot / house, but as held by the
Hon'ble
Supreme
Court
in
several
occasions that the title of the property can
be proved by documents like sale deed,
gift deed, will etc. The courts have been
very slow even in recognizing the title of
the property by virtue of the mutation in
the name of revenue records. The Hon'ble
Apex Court has consistently held that
mutation of a land in the revenue records
does not create or extinguish the title
over a land nor it has any presumptive
value on the title. It only enables the
person in whose favour mutation is
ordered to pay the land revenue in
question. [See: Sawarni (Smt.) Vs. Inder
Kaur (Smt.) (1996) 6 SCC 223, Balwant
Singh And another Vs. Daulat Singh
(Dead) By Lrs. And Others, (1997) 7
SCC 127 and Narasamma and Others v.
State Of Karnataka and Others (2009) 5
SCC 591]. Thus, although the payments
of electricity bills, water bills and house
tax have relevance relating to the
possession of the house by the petitioner,
but the allotment and the right flowing
from the hire purchase agreement has to
be adjudicated and proved by leading
evidence in a competent court of civil
jurisdiction.

20. It is settled law that, when there is
an alternative efficacious remedy available,
the special and extraordinary remedy
available
under Article
226
of
the
Constitution of India cannot be exercised.
The question as to whether the petitioner is
entitled to registry and retain possession of
the house in question are all pure questions
of facts and could be answered one way or
the other only by the Civil Court in a
properly instituted civil suit on the basis of
evidence adduced by the parties but not in a
writ petition filed under Article 226 of the
Constitution of India.

21. It has been consistently held by
Hon'ble Supreme Court as in the case of
Roshina T Vs. Abdul Azeez K.T., (2018)
SCC Online 2654, that "the High Court
cannot allow its constitutional jurisdiction
to be used for deciding disputes, for which
remedies under the general law whether
civil or criminal are available." and that the
writ jurisdiction of the Court "is not
intended to replace the ordinary remedies
by way of a civil suit or application
available to an aggrieved person." The
proposition
is
emphasized
by
the
subsequent sentence which states that the
decision of the writ court under Article 226
of the Constitution of India being special
and extraordinary, should not be exercised
casually or lightly or merely on the asking
of the litigant. Paras 13 to 15 of the said
judgment relevant to the context read thus:

"13. The question as to who is the
owner of the flat in question, whether
respondent No. 1 was/is in possession of
the flat and, if so, from which date, how
and in what circumstances, he claimed to
be in its possession, whether his possession
could be regarded as legal or not qua its
real owner etc. were some of the material
questions which arose for consideration in
the writ petition.

14. These questions, in our view,
were pure questions of fact and could be
answered one way or the other only by the
Civil Court in a properly constituted civil
suit and on the basis of the evidence
adduced by the parties but not in a writ
petition filed under Article 226 of the
Constitution by the High Court.

15. It has been consistently held
by this Court that a regular suit is the
9 All. Kripa Shanker Singh Vs. Lucknow Development Authority, Lucknow & Ors.
301
appropriate remedy for settlement of the
disputes relating to property rights between
the private persons. The remedy under
Article 226 of the Constitution shall not be
available except where violation of some
statutory duty on the part of statutory
authority is alleged. In such cases, the
Court has jurisdiction to issue appropriate
directions to the authority concerned. It is
held that the High Court cannot allow its
constitutional jurisdiction to be used for
deciding disputes, for which remedies
under the general law, civil or criminal are
available. This Court has held that it is not
intended to replace the ordinary remedies
by way of a civil suit or application
available to an aggrieved person. The
jurisdiction under Article 226 of the
Constitution
being
special
and
extraordinary, it should not be exercised
casually or lightly on mere asking by the
litigant."

22. The facts of the case as discussed
above and also as culled out from the
pleadings of the respective parties available
on the record lead to the only indefeasible
conclusion that there exist serious disputed
question
of
facts
which
cannot
be
adjudicated
in
a
writ
petition.
The
petitioner claims to be the purchaser of the
property in question. However, it appears
that the respondents are disputing the said
allotment. How, when and under what
circumstances, the petitioner was allotted
and came into possession of the property in
question and as to whether the petitioner is
entitled for registry of the said property is
to be ascertained as per the subsisting rights
between the parties flowing from the hire
purchase agreement or any subsequent
development. All these facts, according to
this court, have to be established by leading
evidence in accordance with law. The
petitioner has to establish its right under the
law to claim the substantial reliefs as
claimed in the present writ petition.

23. In view of the facts and the
reasoning discussed hereinabove, this court
is not inclined to exercise its extraordinary
jurisdiction under Article 226 of the
Constitution of India and the present writ
petition is liable to be dismissed. The
petitioner is however at liberty to pursue
other remedies as available under the law
for
establishing
his
rights
to
claim
substantial reliefs as claimed under this
writ petition. It is clarified that this Court
has examined the matter on the limited
issue on its maintainability and no opinion
has been expressed on the merits of the
petition.

24. Resultantly, the writ petition is
dismissed and all interim orders stand
vacated.

25. Before parting with the case, we
find it appropriate to observe that the
manner
in
which
the
officers
and
authorities of the Lucknow Development
Authority have conducted themselves in
this case, cannot be appreciated. The stand
of the Lucknow Development Authority is
that the documents relating to the allotment
of House No.M/213/G, Kanpur Road,
Lucknow is not available in their records
and forged, thus in the background of the
above narrated fact, how the money
deposited by the petitioner was adjusted as
is apparent from the records remains
unexplained by the Lucknow Development
Authority. In absence of allotment of house
No.M/213/G, Kanpur Road, Lucknow, how
the L.D.A. could have published the default
list and mention the name of the petitioner
corresponding to the house in question the
internal correspondence and the records of
L.D.A. also remains a mystery. The facts of
302 INDIAN LAW REPORTS ALLAHABAD SERIES
the case compel us to observe that the
officers of the Lucknow Development
Authority and the administration thereof
have been extremely lackadaisical in
performing their duties. It is high time
that these officers self-introspect and take
extraordinary
measures
which
will
improve
its
working
so
that
the
development
authority
is
able
to
discharge its statutory functions entrusted
under the Uttar Pradesh Urban Planning
and Development Act, 1973. We hope and
expect that the top administration of
Lucknow Development Authority take
notice of the observation of this Court
and take appropriate steps not only to put
its house in order, but also improve its
functioning and administration in the
future, keeping in view the solemn
discharge of its duty of planning,
developing
and
providing
housing
solutions effecting the public at large.

26. There shall be no order as to the
costs.
----------
(2022) 9 ILRA 302
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 43 of 2022

State of U.P. & Ors. ...Appllant
Versus
Vidyottma Dwivedi & Anr. ...Respondents

Counsel for the Appellant:
C.S.C.

Counsel for the Respondents:
Abhishek Dwivedi, Anurag Kumar Singh
A. Civil Law - Service Law - Leave
encashment - Leave encashment to an
employee of an Associated College of
Lucknow University - Uttar Pradesh State
Universities Act, 1973, S. 21 (4)
-
Fundamental Rules 58 to 104 of the
Financial Handbook - Section 21 (4) of
1973 Act provides that the pay and other
allowances of the employees of the
University & of associated college shall be
such as may be approved by the State
Government - Furthermore, Statute 37.01
of First Statutes of Lucknow University,
provides that the leave rules applicable to
the Government servants shall mutatis
mutandis apply to the employees of an
Associated College of Lucknow University
of like status - Leave in respect of the
State Government employees is governed
by Fundamental Rules 58 to 104 of the
Financial Handbook - Fundamental Rules
81-B (1)(xii) of the Financial Handbook
(Volume II, Part II to IV) provides that a
Government servant may be permitted to
surrender a portion of earned leave at his
credit and allowed cash payment in lieu
thereof - all the leave rules applicable to
the State Government employees as are
contained in the Fundamental Rules will
have application in case of an employees
of an Associated College of Lucknow
University & such employee are legally
entitled for grant of benefit of leave
encashment as per Fundamental Rule 81-
B(1)(xii) of the Financial Handbook (Para
27, 32)

B. Civil Law - Service Law - The Uttar
Pradesh State Universities Act, 1973-
Section 21 (3) - Leave Encashment - no
approval
of
the
State
Government
required for meeting the expenditure in
making payment of leave encashment
either under the 1973 Act or in the first
Statutes or in the Ordinances of Lucknow
University - Merely because the State
Government
has
not
issued
any
Government Order prescribing the manner
and quantum and point of time etc. for
leave encashment, will not, disentitle an
employee of an Associated College of
Lucknow University to seek the benefit of
leave encashment (Para 27, 32)