# Naval Singh and another v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-09
- **Case number:** Civil Misc. Writ Petition No. 1043 of 2012
- **Bench:** Ashok Bhushan, Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naval-singh-and-another-v-state-of-u-p-and-others-42142
- **Pages:** 5

## Headnote

Constitution
of
India,
Article 226Provisions of Naveen Okhla Audyogik
Vikas Pradhikaran Awasiya bhukhand
Yojna
2011-Clause
(5)-being
discriminated-be declared ultra viresprovisions of allotment of flats to one
claimant-where
recorded
co-tenure
holders are more than one-allotment to
any one shall be made by draw of lotscan not be in any manner arbitrary on
discriminatory-petition dismissed.

Held: Para 9

The petitioners were also permitted to
participate in draw, they can not
complaint
of
any
arbitrariness
or
discrimination. Petitioners had equal
chance for allotment in draw and mere
fact that draw went in favour of
respondent no..4 cannot be said that
petitioner s have been deprived of their
right. Thus the submission of the
petitioner that clause -4 of the scheme
is arbitrary cannot be accepted.
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

1 All] Naval Singh and another V. State of U.P. and others

143
X-ray to know the exact nature of injury
sustained
by
the
deceased.
It
is
categorical deposition of the doctor
(P.W. 5) that he had not prepared any
supplementary report in respect of the
victim. He had further deposed that he
had not extracted any pellets from the
body of the injured. In such a view,
looking
to
the
entire
facts
and
circumstances and also looking to the
fact that the appellant had no criminal
history nor he had got any criminal
proclivity and the crime was committed
in a heat of passion and loss of self
control and the period of a decade gone
by during intervening period, I consider
it appropriate to reduce the sentence of
imprisonment of the appellant from 10
years RI to 5 years RI but at the same
time enhance the fine imposed upon him
from Rs. 10,000/- to Rs. 40,000/- and
award a compensation of Rs. 25,000/- to
the victim P.W. 3.

27. In view of above, the appeal
succeed and is allowed in part. While
conviction of the appellant under Section
307 I.P.C. is hereby maintained, his
sentence is altered from 10 years RI and
Rs. 10,000/- fine to 5 years RI with Rs.
40,000/- fine with compensation of Rs.
25,000/- to the victim P.W. 3 Devendra
Kumar out of it. In default of depositing
the fine, appellant shall undergo further
one year simple imprisonment. Appellant
is stated to be in jail, he shall remain in
jail to serve out remaining part of his
sentence, which has been awarded to him
by this judgment.

28. Let a copy of the judgment be
transmitted to the trial Judge for its
intimation.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE MRS. SUNITA AGARWAL,J.

Civil Misc. Writ Petition No. 1043 of 2012

Naval Singh and another
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri M.D. Singh 'Shekhar'
Sri R.D.Tiwari

Counsel for the Respondents:
Sri Ramendra Pratap Singh
C.S.C.

Constitution
of
India,
Article 226Provisions of Naveen Okhla Audyogik
Vikas Pradhikaran Awasiya bhukhand
Yojna
2011-Clause
(5)-being
discriminated-be declared ultra viresprovisions of allotment of flats to one
claimant-where
recorded
co-tenure
holders are more than one-allotment to
any one shall be made by draw of lotscan not be in any manner arbitrary on
discriminatory-petition dismissed.

Held: Para 9

The petitioners were also permitted to
participate in draw, they can not
complaint
of
any
arbitrariness
or
discrimination. Petitioners had equal
chance for allotment in draw and mere
fact that draw went in favour of
respondent no..4 cannot be said that
petitioner s have been deprived of their
right. Thus the submission of the
petitioner that clause -4 of the scheme
is arbitrary cannot be accepted.
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(Delivered by Hon'ble Ashok Bhushan,J.)

1. Heard Shri M.D. Singh 'Shekhar'
learned Senior Advocate assisted by Shri
R.D. Tiwari, learned counsel for the
petitioners, Shri Ramendra Pratap Singh,
learned counsel for the respondents no. 2
and 3 and learned Standing Counsel.

By means of this petition, petitioners
have prayed for following relief:-

"(i) Issue a writ, order or direction in
the nature of mandamus directing the
opposite parties no. 1 to 3 not allot the
residential
plot
under
the
Scheme2011(Naveen Okhla Audhoygik Vikas
Pradhikaran Awasiya Bhukhand Yojna-
2011(01) in favour of the opposite party no.
4 without creating the right and interest of
the petitioners in the said residential plot;

(ii) Issue a writ, order or direction in
the nature of mandamus directing the
opposite parties nos. 1 to 3 to act in
accordance with law and not to deprive the
petitioners by allotting the residential plot
under the Scheme-2011(Naveen Okhla
Audhyogik Vikas Pradhikaran Awasiya
Bhukhand Yojna-2011 (01) ) in favour of
the opposite party no.4 by depriving the
petitioners from their right and interest in
the said residential plot; and

(iii) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper according to the facts
and circumstances of the case."

2. Petitioners' case is that petitioners
as well as respondent no.4 are sons of the
late Dhanni Singh, who was original tenure
holder of certain plots mentioned in
paragraph-2 of the writ petition. The land of
late Dhanni Singh was acquired by the
respondents. The compensation was paid to
the tenure holder in the year 1996. The
Noida Authority had floated a scheme,
namely, Naveen Okhla Audhyogik Vikas
Pradhikaran Awasiya Bhukhand Yojna2011 (01) for the allotment of the residential
plots to the villagers, whose land had been
acquired
by
the
Noida
Authority.
Petitioners' case is that under the scheme -
2011(01) in case of death of original tenure
holder one of the legal heirs of the
agriculturist can be allotted residential plot.
Under the Scheme-2011(01) if there are
many co-tenure holders the land would be
allotted to one of the co-tenure holder and
the selection of the said tenure holder would
be made through process of draw among the
co-tenure holders. The draw was drawn in
which
respondent
no.4
was
allotted
residential plot.

3. Learned counsel for the petitioners
submits that there is no dispute with regard
to the scheme in which only one of the legal
heirs of the agriculturist whose land has
been acquired should be allotted residential
plot. He further submits that petitioners
have no objection that under the Scheme2011(01) if the plot is allotted to one of the
legal heir but in the said allotment the rights
and interest of other heirs should also be
created, but as per Scheme-2011 (01) once
the plot has been allotted to one of the legal
heir then automatically the other legal heirs
of original tenure holder would be deprived
of any right and interest in the said
residential plot. He submits that nonallotment of the residential plot to the
petitioners violates the provision of Article
14 of the Constitution.

4. Shri Ramendra Pratap Singh,
learned counsel appearing for respondents
no. 2 and 3, refuting the submissions of
learned counsel for the petitioners, contends
1 All] Naval Singh and another V. State of U.P. and others

145
that
Scheme-2011(01)
contemplated
allotment of residential plot to one of the
legal heirs and in case more than one heir
moved
application
for
allotment
of
residential plot the name is to be decided by
draw among the co-tenure holders. He
further submits that a Division Bench in
Writ petition no.55845 of 2009, Mr. Puran
Singh & Another v. State of U.P. and
another decided on 19.12.2011 has held
that in the residential Scheme floated by the
respondents only one legal heir is entitled
for allotment of residential plot.

5.

We
have
considered
the
submissions made by the learned counsel
for the parties and perused the record.

6. Petitioners and respondent no.4
both are sons of late Dhanni Singh who was
original tenure holder. Under the Scheme
2011 (01) Clause 4 and 5 are as below:-

"4- 1382 Qlyh esa ntZ [kkrsnkj ds e`rd gks
tkus dh fLFkfr esa rFkk mldh Hkwfe vftZr gksus ds
le; ;fn mlds ,d ls vf/kd mRrjkf/kdkjh jktLo
vfHkys[kks esa vafdr Fks rks muesa ls dsoy ,d
mRrjkf/kdkjh gh Hkw[k.M izkIr djus gsrq vgZ gksaxkA

5- xzkeh.k Js.kh ds [kkrs ds leLr [kkrsnkj ftUgs
iwoZ esa Hkw[k.M@Hkou vkoaVu ugh gqvk gS] vkosnu gsrq
vgZ gksaxsA ,d [kkrs ds lkis{k ,d ls vf/kd
lg[kkrsnkjksa }kjk vkosnu djus dh fLFkfr esa izkf/kdj.k
Lrj ij lg [kkrsnkjksa ds chp Mak ds ek/;e ls Hkw[k.M
vkoaVu gsrq ,d [kkrsnkj dk p;u fd;k tk;sxkA"

7. The tenure holder, whose land has
been acquired, is entitled for compensation.
In case the original tenure holder died
before receiving the compensation all the
legal heirs are entitled for compensation.
The allotment of residential plot under the
scheme floated by the Noida Authority
gives
an
additional
benefit
to
the
agriculturist, whose land has been acquired,
and in case of death of original tenure
holder one of the legal heirs of the
agriculturist can be allotted residential plot.
Under the Scheme-2011(01) if there are
many co-tenure holders the land would be
allotted to one of the co-tenure holder and
the selection of the said tenure holder would
be made through process of draw among the
co-tenure holders. The Scheme floated by
the Noida Authority to allot the land to one
of the tenure holder only came for
consideration in case of Mr. Puran Singh
and another (Supra) and received approval
by the Division Bench, which held that :-

"The question for consideration is as to
whether the allotment of residential plot is
permissible to more than one heir of
deceased tenure holder and the restriction is
only confined to a particular scheme or
allotment made in any earlier scheme is also
a disqualification to apply in any subsequent
scheme. The relevant clauses of 2004(1)
Scheme, which have already been quoted
above, clearly provided that in case where
original tenure holder whose land had been
acquired, has expired only one heir of such
person shall be eligible to apply and seek
allotment of a residential plot in this
scheme. The sub-clauses (v) and (ix) of
Clause (D) of 2004(1) Scheme, as quoted
above, clearly contemplated that only one of
the legal heirs of deceased tenure holder is
entitled for allotment. There cannot be any
dispute that if a tenure holder whose land
has been acquired, has already been allotted
a plot then his heirs shall have no
entitlement to apply under the villager
category. The question is that if a tenure
holder has more than one heir, whether they
can apply in each successive scheme with
rider that only one of the heirs will be
allotted plot under one scheme. The purpose
and object for allotting a residential plot is
to benefit the tenure holder whose land has
been acquired. Land of large number of
146 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

tenure holders have been acquired under
various land acquisition proceedings. There
is a clear provision that if there are more
than one co-tenure holder against one Khata
or plot only one of the co-tenure holder
shall be eligible for allotment. The purpose
is to benefit more and more tenure holders
whose land has been acquired. In case
interpretation is made that each heir shall be
entitled to apply in different schemes
disregarding the factum of allotment to any
of heirs earlier, there shall be reservation for
a category i.e. category of heirs of the
deceased tenure holder who shall be
permanent body claiming benefit in all
subsequent schemes. Further the fact that
one tenure holder has more than one heir,
the factum that a tenure holder has one heir
or several heirs shall have effect on the
schemes floated by the Authority. Taking
example that a tenure holder has ten heirs,
his each heir shall have chance in ten future
schemes even if in each scheme only one is
entitled for allotment affecting the chances
of other tenure holders whose land has been
acquired,
in
future
scheme.
The
interpretation which is put by the NOIDA
and the policy which is being pursued from
2004 onwards is in consonance with the
equity and cannot be said to be arbitrary or
unreasonable."

8. The submission of the learned
counsel for the petitioners is that clause-4 of
the scheme which provides for allotment of
only one of the legal heirs is arbitrary and
denies right of other heirs. It is submitted
that in event allotment is made in favour of
one of the heir of agriculturist rights in said
allotted plots be given to all the heirs. The
submission of the learned counsel for the
petitioners is that non-giving of rights to
other heirs violates Article 14 of the
Constitution.

9. A perusal of the clause-4 of the
scheme indicates that in case there are more
than one heirs recoded in revenue records of
deceased tenure holder only one of the heirs
of the tenure holder shall be entitled for
allotment. Clause -5 further provides that all
the co-tenure holders shall be entitled to
make application and in event more than
one
co-tenure
holders
have
made
application selection of only one co-tenure
holder shall be made by the draw drawn by
the authorities. The above clause clearly
gives right to all the co-tenure holder/heirs
to apply for allotment. In the present case
petitioners as well as respondent no.4 have
applied for allotment under the Scheme2011. In a draw every applicant who
participated in the draw has equal chance of
success. The petitioners were also permitted
to participate in draw, they can not
complaint
of
any
arbitrariness
or
discrimination. Petitioners had equal chance
for allotment in draw and mere fact that
draw went in favour of respondent no..4
cannot be said that petitioner s have been
deprived of their right. Thus the submission
of the petitioner that clause -4 of the scheme
is arbitrary cannot be accepted.

10. Learned counsel for the petitioners
lastly contended that selection by a draw
may be permissible amongst the strangers
who are not related to each other but
selection by draw amongst the co-tenure
holders who have equal rights is not
permissible. The draw of lot for allotment of
residential plot is an accepted mode for
allotment
adopted
by
different
local
authorities
including
the
respondent
authorities. The same policy and procedure
is pursued by the respondent authorities in
making allotment of residential plots
amongst co-tenure holders, no foundation
has been laid in the petition as to why
1 All] Syed Arman V. State of U.P.

147
selection of one of legal heirs of deceased
by draw of lots is impermissible.

11. We do not find any infirmity in the
policy and scheme which is uniformly
applied by the authorities in selecting one of
the co-tenure holders or one of the legal
heirs of the deceased for allotment of
residential plots.

12. None of the submission raised by
the learned counsel for the petitioners has
any substance. Petitioner is not entitled for
any relief in writ petition.

13. The petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2012

BEFORE
THE HON'BLE AMAR SARAN,J
THE HON'BLE RAMESH SINHA,J

Criminal Misc. Writ(P.I.L) Petition No.
1124 of 2011

Syed Arman

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
.....................................

Counsel for the Respondent:
Sri Vimlendu Tripathi (A.G.A.)

Constitution of India-Art. 226 readwith
Code of Criminal Procedure-Section 437A-Public
Interest
Litigation
Petitionseeking direction to introduce provision
of newly added Section 437-A in all
Court of U.P. Including High Court-filling
of band in shape of Form 45 can be
meant applicable before Trail Court for
conviction upto 3 years only and not
beyond that-considering 15th report of
Law Commission if such practice adopted
speedy disposal of Criminal appeal-shall
be
badly
affected
by
granting
adjournment in compliance of Section
437-A and further in case of default of
appearance inspite of NBW in taking
action under Section 446 Cr.P.C-before
issuing
direction
to
the
State
Government for necessary amendmentAdditional Solicitor General, Advocate
General and other concern authorities to
address the Court forming final opinion.

Held Para 18

The State and Central legislatures should
also
consider
amending
or
utilizing
sections 441(3) or Explanation to section
446(1), Form 45 (2nd Schedule) or by
introducing a new provision which could
provide that the bail bonds which the
accused and his sureties fill up after the
accused is released on bail on the filing
of the appeal against conviction or
acquittal, that same bond could be made
to operate for a period of one year or six
months
after
the
delivery
of
the
judgment by the High Court, till such
time as fresh bonds are got executed by
the Supreme Court. That would obviate
the need for the High Court getting fresh
bonds executed by the accused and his
sureties at the time of final hearing of
the matter as has been provided under
section 437 A., and in the event that an
accused does not turn up in response to
the Supreme Court's summons on leave
to appeal being granted, the bonds of
the accused and his sureties could be
forfeited under section 446 Cr.P.C. and
appropriate
penalty
or
punishment
realized from the accused or his sureties
for the default.

(Delivered by Hon'ble Amar Saran,J)

1. Heard Shri Vimlendu Tripathi,
learned Additional Government Advocate
and recorded the submissions advanced by
him.