# Shiv Kumar v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 245
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Writ C No. 4456 of 2024
- **Bench:** Mrs. Sangeeta Chandra, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-v-state-of-u-p-ors-52243
- **Pages:** 15

## Headnote

and reprobate - It is trite law that a
party cannot be permitted to approbate
and reprobate at the same time. This
principle is rooted in the doctrine of
election, which is a facet of the law of
estoppel. A party cannot blow hot and cold
simultaneously.
Any
party
taking
advantage of an instrument must accept
all its terms. A person cannot assert the
validity of a transaction to gain an
advantage and later challenge it as void to
secure another benefit. (Para 37)

B. Initially, Flat No. R-152 was allotted to Late
Ram Pyare Panika, and a Hire Purchase
Agreement was executed between him and the
Lucknow
Development
Authority
(L.D.A.),
requiring him to deposit ₹3,70,200 along with
quarterly installments of ₹18,500. Possession of
the flat, valued at ₹6,27,000, was delivered
solely for residential purposes, with a sale deed
to be executed upon full payment of the sale
consideration. However, the full amount was not
deposited. Subsequently, on the application of
Late Ram Pyare Panika, Flat No. R-152 was
exchanged for House No. 5/367, and a request
for a refund of the amount paid for Flat No. R152 was made. On 01.06.1999, Late Ram Pyare
Panika executed a notarized will in favor of the
petitioner. Petitioner represented to the L.D.A.
to transfer the allotment of the said flat in his
favor, realize the balance sale consideration,
and register the sale deed in his name, which
was rejected by the impugned order. Held: No
right, much less an alienable right, accrued to
Late Ram Pyare Panika to have a sale deed or
will executed in favor of the petitioner
concerning Flat No. R-152. The Hire Purchase
Agreement explicitly stated that possession was
granted solely for residential purposes and that
the allottee could not mortgage, sell, or create
third-party interests until the execution of the
sale deed by L.D.A. after receiving the full sale
consideration. Late Ram Pyare Panika, having
failed to pay the entire sale consideration and
having opted to exchange the flat with an H.I.G.
house, forfeited any rights under the initial
agreement. His subsequent request for a refund
further negates any claim over the flat. (Para
40)

Writ Petition dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,996 of 51,898. This is a partial read: ask again with offset=39996 for what follows._

7 All. Shiv Kumar Vs. State of U.P. & Ors.
245
Section 48 of U.P.C.H. Act will be
applicable.

19. This Court in the case reported
in 2020 (148) RD 114, Lakshmania Vs.
D.D.C. Deoria and Others has considered
the scope of Section 48 Explanation 3 of
U.P.C.H. Act. Paragraph No.44 of the
judgment rendered by this Court in
Lakshmania (supra) will be relevant for
perusal which is as under:

 "44. In this case, the objections
were filed in the year 1981, and, therefore,
the amended provisions of Section 48,
operative retrospectively, would squarely
apply. Under the amended statute, the
Revisional Court has been conferred with
unique powers by virtue of the added
Explanation 3 to go into the correctness,
legality or propriety of an order passed by
an Authority below, whether on fact or law,
and includes the powers to appreciate any
oral or documentary evidence. Thus, to the
understanding of this Court, in view of the
added Explanation by U.P. Act no. 3 of
2002, retrospectively w.e.f. 10.11.1980, the
Revisional Court is in no manner inhibited
from examining any question of fact or law,
or
appreciating
evidence
whether
documentary or oral, virtually like any
other Court of fact and law. It is a unique
position that the Revisional Authority
enjoys, under Section 48 of the Act,
conventionally not associated with the
exercise of revisional jurisdiction."

20. The plea of Shikami tenant,
Adhivasi right, Sirdari right on the basis of
alleged entry in the revenue record in
respect to plot nos.376 & 377 setup by the
petitioners has failed, as such, respondent
nos.2 & 3 are entitled to be recorded as
bhumidhar on the basis of sale-deed
executed on 31.1.1963 by Ram Anjor
Singh in favour of respondent nos.2 & 3 as
held under the impugned revisional order
dated 2.11.1981.

21. Learned counsel for the
petitioners has not pressed the plea of the
adverse possession, as such, issuance of
P.A. 10 is not required to be considered.

22. Considering the entire facts
and circumstances of the case, there is no
illegality in the impugned judgement dated
2.11.1981 passed by respondent no.1/
Deputy Director of Consolidation, Basti.

23. The writ petition stands
dismissed.

24. It is further directed that entire
amount deposited by the petitioners with
effect from 1983 under the interim order of
this Court dated 20.9.1983 be released in
favour of respondent nos.2 & 3 within
period of six weeks from the date of
production of certified copy of this order
before the authority concern.

25. No order as to costs.
----------
(2024) 7 ILRA 245
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.07.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Writ C No. 4456 of 2024

Shiv Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Deepanshu Dass, Lalta Prasad Misra
246 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C., Ratnesh Chandra

A. Doctrine of Election - approbate
and reprobate - It is trite law that a
party cannot be permitted to approbate
and reprobate at the same time. This
principle is rooted in the doctrine of
election, which is a facet of the law of
estoppel. A party cannot blow hot and cold
simultaneously.
Any
party
taking
advantage of an instrument must accept
all its terms. A person cannot assert the
validity of a transaction to gain an
advantage and later challenge it as void to
secure another benefit. (Para 37)

B. Initially, Flat No. R-152 was allotted to Late
Ram Pyare Panika, and a Hire Purchase
Agreement was executed between him and the
Lucknow
Development
Authority
(L.D.A.),
requiring him to deposit ₹3,70,200 along with
quarterly installments of ₹18,500. Possession of
the flat, valued at ₹6,27,000, was delivered
solely for residential purposes, with a sale deed
to be executed upon full payment of the sale
consideration. However, the full amount was not
deposited. Subsequently, on the application of
Late Ram Pyare Panika, Flat No. R-152 was
exchanged for House No. 5/367, and a request
for a refund of the amount paid for Flat No. R152 was made. On 01.06.1999, Late Ram Pyare
Panika executed a notarized will in favor of the
petitioner. Petitioner represented to the L.D.A.
to transfer the allotment of the said flat in his
favor, realize the balance sale consideration,
and register the sale deed in his name, which
was rejected by the impugned order. Held: No
right, much less an alienable right, accrued to
Late Ram Pyare Panika to have a sale deed or
will executed in favor of the petitioner
concerning Flat No. R-152. The Hire Purchase
Agreement explicitly stated that possession was
granted solely for residential purposes and that
the allottee could not mortgage, sell, or create
third-party interests until the execution of the
sale deed by L.D.A. after receiving the full sale
consideration. Late Ram Pyare Panika, having
failed to pay the entire sale consideration and
having opted to exchange the flat with an H.I.G.
house, forfeited any rights under the initial
agreement. His subsequent request for a refund
further negates any claim over the flat. (Para
40)

Writ Petition dismissed. (E-5)

List of Cases cited:

1. Puran Singh & ors. Vs St. of Pun., 1975 (4)
SCC 518

2. Ram Rattan & ors. Vs St. of U.P., 1977 (1)
SCC 188

3. Rame Gowda (D) by L.R.s Vs M. Varadappa
Naidu, 2004 (1) SCC 768

3. Horam Vs Rex, AIR 1949 All 564

4. Jugalkishore Saraf Vs Raw Cotton Company
Ltd., AIR 1955 SC 376

5. Verschures Creameries Ltd. Vs Hull and
Netherlands Steamship Co. Ltd.

6. R.N. Gosain Vs Yashpal Dhir, 1992 (4) SCC
683

7.
Bhagwat
Saran
(Through
L.R.)
Vs
Purushottam & ors., 2020 (6) SCC 387

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This petition has been filed praying
for quashing of order dated 08.05.2024
passed by the Vice-Chairman, Lucknow
Development
Authority
(hereinafter
referred to as "opposite party no.3"), where
he has rejected the representation of the
petitioner with respect to Flat no.- 152, Ist
Floor, Rupayan Gomti Nagar, Lucknow
and also praying for a mandamus to be
issued to the opposite party no. 2 to enter
the name of the petitioner in place of his
predecessor-in-interest as allottee of the
said Flat and to take balance of the sale
consideration from the petitioner and
execute a sale deed in his favour and not to
allot/settle/sell the said Flat in favour of
7 All. Shiv Kumar Vs. State of U.P. & Ors.
247
any other person and not to disturb the
possession of the petitioner over the said
Flat.

2. The brief facts of the case as
mentioned in writ petition are that one Sri
Ram
Pyare
Panika,
Ex-Member
of
Parliament had applied for allotment of a
three bedroom Flat, type "Rupayan", in a
residential colony called Nehru Enclave in
Gomti Nagar developed by the opposite
party no. 2, the Lucknow Development
Authority (hereinafter referred to as 'the
L.D.A.') and deposited Rs.30,000/- initially
on 28.03.1989. He was allotted Flat no.
152, "Rupayan" on Ist floor at an estimated
cost of Rs.4,25,000/- payable in quarterly
installments of Rs.17,500/-. Sri Ram Pyare
Panika
deposited
some
installments
thereafter. By a letter dated 28.07.1994, he
was informed that the price of the Flat had
increased to Rs.6,42,000/- until the said
date, the amount deposited by him came to
Rs.3,31,250/-. Later on a Hire Purchase
Agreement was entered into between the
L.D.A. and Sri Ram Pyare Panika on
15.09.1994
requiring him
to
deposit
Rs.3,70,200/-, additionally, in quarterly
installments of Rs.18,500/-. Suddenly, a
dispute arose between L.D.A. and the
Army, which claimed that Nehru Enclave
was built upon land, which belonged to the
Army. Army personnel occupied all vacant
Flats of the said scheme, in 1999 and Sri
Ram Pyare Panika decided to withdraw
from the said scheme and wrote to L.D.A.
to refund the amount deposited by him.

3. It is the case of the petitioner that
allotment of Sri Ram Pyare Panika was
never cancelled and the amount deposited
by Sri Ram Pyare Panika could not be
refunded to him as a dispute arose between
UCO Bank and the L.D.A. as to the amount
deposited by Sri Ram Pyare Panika. UCO
Bank informed the L.D.A. that it had no
record regarding payments made by Sri
Ram Pyare Panika and recommended that
the claim of Sri Ram Pyare Panika be
settled on the basis of original challans
submitted by him. The petitioner was at the
time living with and taking care of Sri Ram
Pyare Panika. Since Sri Ram Pyare Panika
no longer wanted the said Flat, on account
of litigation between L.D.A. and, he on
receipt of Rs.5,00,000/- from the petitioner,
executed a duly notarized agreement to sell
on 01.06.1999, in favour of the petitioner to
sell the Flat in question. As the sale deed
was not executed by L.D.A. in favour of Sri
Ram Pyare Panika, he also executed a
notarized Will on the same day that is on
01.06.1999 in favour of the petitioner. Sri
Ram Pyare Panika died on 24.10.1999, and
he could not deposit the rest of the
installments towards the Flat in question.
The petitioner who is in possession of the
Flat has been repeatedly representing to
the L.D.A. to transfer the allotment of the
said Flat in his favour and to realise the
balance of the sale consideration and
register the sale deed in his favour, but
the L.D.A. has been threatening him that
he shall be evicted forcibly from the Flat
in question.

4. It has been alleged by the petitioner
that he was served a notice on 27.06.2023
and again on 25.09.2023, with regard to
certain dispute relating to the Flat in
question raised by a neighbour, and the
L.D.A. recognized and acknowledged his
possession over the property yet it is not
executing a sale deed in his favour. On the
other hand, the money deposited by Sri
Ram Pyare Panika has illegally been
credited in the name of one Vipin Bakshi
and the Flat in question has been allotted in
his favour as per the information available
on the website, of the L.D.A.
248 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The petitioner being aggrieved filed
a writ petition, challenging such action of
the L.D.A., namely, Writ-C No. 117 of
2024, Shiv Kumar Vs. State of UP and
Others. In the counter affidavit filed by the
L.D.A., it was stated that the entry of Flat
no.- R-152, in the name of Vipin Bakshi
was found to be incorrect and accordingly,
orders have been passed for expunging the
entry made in favour of Vipin Bakshi. The
petition was finally disposed of by this
Court by an order dated 26.02.2024,
directing the opposite party no. 3 to decide
the representation of the petitioner and till
such decision is taken, it was restrained
from
taking
any
action
against
the
petitioner regarding his proposed eviction.
Now the representation of the petitioner has
been decided by the opposite party no.3,
rejecting the same without taking into
account Section 5 of the Transfer of
Property Act, which provides that a living
person may convey property in the present
or in the future, to one or more other
persons, and also ignoring the provisions of
Section 18 of the Registration Act, 1908,
which requires that registration of Will
which creates, declares or assigns any right/
title or interest in any immovable property
in the present or in the future, is completely
optional.

6. It has further been argued by the
learned counsel for the petitioner that the
impugned order mentions about application
of children of Late Ram Pyare Panika for
refund of
money
which
was never
communicated to the petitioner by the
opposite party no.3. No copy of such
application was supplied to the petitioner.
As a result, the petitioner could not reply to
this aspect of the matter and without
affording any opportunity to the petitioner,
in this regard, the petitioner's claim was
rejected. Also, it has been argued that in the
impugned order dated 08.05.2024, it has
been mentioned that the allotment of Sri
Ram Pyare Panika was converted from Flat
No.- R-152, Nehru Enclave, Gomti Nagar
to House No. 5/367 Viram Khand, Gomti
Nagar. However, neither the original
allotment order dated 05.10.1990, nor the
Hire Purchase Agreement dated 15.09.1994
was cancelled. Also, no allotment order
was issued for the house allotted in
exchange or any agreement to sell was
entered with Sri Ram Pyare Panika with
respect to House No. 5/367. In fact, Sri
Ram Pyare Panika refused to accept House
No. 5/367, as is evident from his letter
dated 26.07.1997. Sri Ram Pyare Panika
never deposited any money in respect to
House No. 5/367, and had asked for refund
of money which he had earlier deposited
for Flat No.- R-152, but the same was
never refunded to him. Therefore, Sri Ram
Pyare Panika continued in possession of
Flat No.R-152.

7. It has further been argued by the
learned counsel for the petitioner that the
impugned order dated 08.05.2024 stated
that the agreement to sell dated 01.06.1999
and
the
Will
dated
01.06.1999
are
unregistered, and therefore are doubtful,
forged and fabricated documents, and as
such cannot be relied upon. It ignores
Section 18 of the Registration Act, 1908.
The validity of the documents i.e. the
Agreement to Sell and the Will dated
01.06.1999 cannot be decided by any
Administrative Authority. It is only the
competent Civil Court which can test the
validity and legality of such documents.
Even an unregistered Agreement to Sell
can be acted upon through a Suit for
Specific Performance. Under Section 18 of
the Registration Act, 1908, registration of
Will is optional and even unregistered Will
is admissible and executable. Even if the
7 All. Shiv Kumar Vs. State of U.P. & Ors.
249
notarized Agreement to Sell is ignored, the
petitioner is entitled to retain possession of
the Flat on the basis of the Will dated
01.06.1999. Devolution of property or
rights through Will is not a transfer of the
same, and in view thereof the devolution of
allotment, possession, and substitution in
Agreement to Sell the same, is not a
transfer and under law it is permissible. It
has been argued that the directions issued
in the impugned order dated 08.05.2024 to
vacate the Flat in question within 15 days
or else the same shall be got vacated
forcibly and further direction to the
petitioner to pay the rent of the Flat since
1999 and a direction to concerned officials
to refund the deposited amount to the
family of Late Ram Pyare Panika is wholly
illegal
and
arbitrary
and
without
jurisdiction. The family of Late Ram Pyare
Panika has no claim or right over the
consideration deposited by Sri Ram Pyare
Panika, and the petitioner alone can claim
the same on the basis of the Will executed
in his favour by Sri Ram Pyare Panika. On
the basis of the said Will, it has been also
argued that the allotment of Flat no.- R152 has already devolved upon the
petitioner, and the consideration already
paid by Sri Ram Pyare Panika ought to be
entered in the name of the petitioner, and
L.D.A. is legally bound to take the balance
consideration for sale of the said Flat from
the petitioner and execute the sale deed in
his favour.

8. The Counsel for the petitioner has
placed reliance upon judgements of the
Supreme Court in the case of Puran Singh
and others Vs. State of Punjab, 1975 (4)
SCC 518; Ram Rattan and others Vs.
State of U.P., 1977 (1) SCC 188;Rame
Gowda(D) by L.R.s Vs. M. Varadappa
Naidu, 2004 (1) SCC 768; to argue that
even a trespasser cannot be dispossessed
except in accordance with due procedure in
law.

9. The Counsel for the petitioner has
read out Paragraph-12 of Puran Singh
(supra) where the Supreme Court observed
that where a trespasser was in settled
possession of the land, he could not be
evicted except in due course of law, and he
is further entitled to resist or defend his
possession, even against the rightful owner
who tries to dispossess him. The only
condition laid down by the Court was that
the possession of the trespasser must be
settled possession. The Court explained
that the settled possession must be
extended over a sufficiently long period of
time and acquiesced in by the true owner.
The possession of a trespasser must be
effective, undisturbed and to the knowledge
of the owner or without any attempt at
concealment, but the Supreme Court
further observed that an occupation of the
property by a person as an agent or a
servant at the instance of the owner will not
amount to actual physical possession. The
nature of possession in such cases which
may entitle a trespasser to exercise the right
of private defence of property and person
should contain the following attributes: -

(1) that the trespasser must be in
actual physical possession of property over
a sufficiently long period;

(2) that the possession must be to
the knowledge either express or implied of
the owner or without any attempt at
concealment, which contains an element of
Animus
Possidendi.
The
nature
of
possession
of
the
trespasser
would,
however, be a matter to be decided on the
facts and circumstances of each case;

(3) the process of dispossession
of the true owner by the trespasser must be
250 INDIAN LAW REPORTS ALLAHABAD SERIES
complete and final, and must be acquiesced
in by the true owner; and

(4) that one or usual test to
determine the quality of settled possession,
in the case of cultivable land would be
whether or not the trespasser, after having
taken possession, had grown any crop. If
the crop had been grown by the trespasser,
then even the true owner has no right to
destroy the crop grown by the trespasser
and take forcible possession, in which case
the trespasser will have a right of private
defence, and the true owner will have no
right of private defence.

The Supreme Court relied upon
textbooks of English jurists for example
'Salmond', where it was observed:-

"In English law possession is a
good title of right against anyone who
cannot show a better. A wrongful possessor
has the rights of an owner with respect to
all persons except earlier possessor and
except the true owner himself."

Many
other
legal
systems,
however, go much further than this, and
treat possession as a provisional or
temporary title, even against the owner
himself. Even a wrong doer who is
deprived of his possession, can recover it
from any person whatsoever, simply on the
ground of his earlier possession. Even the
true owner who takes his own, maybe
forced in this way to restore it to the
wrongdoer and will not be permitted to set
up his own superior title to it. He must first
give up possession, and then proceed to
recourse of law for the recovery of the
thing on the ground of his ownership. The
intention of the law is that every possessor
shall be entitled to retain and recover his
possession,
until
deprived
of
it
by
judgement according to law.

10. The law in India, as it has
developed, accords with the jurisprudential
thought as propounded by Salmond.
However, the courts have mostly quoted
Latin maxim:-"possessio contra omnes
valet praeter eur cui ius sit possessionis".
(He that hath possession hath right against
all but him that hath the very right).

11. The Supreme Court in almost all
the aforecited cases has referred to the
observations made by the Allahabad High
Court in Horam Vs. Rex, AIR 1949 Alld
564; wherein a distinction was drawn
between the trespasser in the process of
acquiring possession and the trespasser,
who
had
already
accomplished
or
completed his possession, wherein the true
owner may be treated to have acquiesced
in; while the former can be obstructed and
turned out by the true owner, even by using
reasonable force, the latter, may be
dispossessed by the true owner only by
having recourse to the due process of law
for a re-acquiring possession over his
property.

12. Per contra, Sri Ratnesh Chandra
appearing for the L.D.A. has referred to
Annexure-16 to the writ petition, which is a
counter affidavit filed by the L.D.A. in
earlier petition Writ-C No. 117 of 2014;
and pointed out that initially Flat No. R152 was allotted in favour of Late Ram
Pyare
Panika
and
a
Hire
Purchase
Agreement was executed in his favour and
possession was also delivered to him.
Subsequently, on an application being
given by Sri Ram Pyare Panika, in place of
Flat no. R-152, Nehru enclave, Gomti
Nagar, he was allotted House No. 5/367,
Viram Khand, Gomti Nagar. While making
adjustment of payments already received
by L.D.A. for Flat no. R-152 in exchange
of House No. 5/367, Viram Khand, Gomti
Nagar, Lucknow, Sri Ram Pyare Panika
was also provided with the calculation
7 All. Shiv Kumar Vs. State of U.P. & Ors.
251
sheet for making payment in respect of
House No. 5/367. A copy of the calculation
sheet in respect of House No. 5/367, Viram
Khand, as well as the order of adjustment
in respect of House No. 5/367, Viram
Khand, Gomti Nagar has been filed as an
Annexure to the said counter affidavit.

13. Sri Ratnesh Chandra has also
pointed out page 139 of the paperbook
which is a letter dated 30.11.1996, and it
refers to request by Sri Ram Pyare Panika
made on 03.09.1996 praying for allotment
of HIG House No. 5/367 in Viram Khand,
Gomti Nagar in place of Flat R-152, Nehru
Enclave, Gomti Nagar. It refers to an order
passed by the then Vice Chairman on
10.11.1996 accepting such request and
directing conversion/exchange. Rest of the
terms and conditions of such allotment
would remain the same as before. The cost
of
such
house
was
indicated
as
Rs.7,49,718/- and Sri Ram Pyare Panika
was directed to deposit the same latest by
31.12.1996 or else penal interest would be
charged. At page 141 of the paperbook is
the letter dated 03.09.1996, written by Sri
Ram Pyare Panika. He has mentioned that
he had been allotted Flat No.152 Nehru
Enclave
and
had
also
been
given
possession thereof, but the Army, having
taken possession had put a lock on it, as a
result, it would be difficult to reside in the
same as civic amenities were also not
available. Sri Ram Pyare Panika referred to
his Reserved Category status and poor
financial condition and asked for allotment
of House No. 5/367 in Viram Khand PhaseV, Gomti Nagar in its place.

14. Also, Sri Ratnesh Chandra has
pointed out page-143 of the paperbook,
which is a letter written again by Sri Ram
Pyare Panika on 26.07.1997, saying that he
had been allotted a house in Viram Khand
in place of Flat in Nehru Enclave, but the
sale consideration was very high, which he
could not pay, therefore, he prayed that the
amount he had already deposited be
returned with interest to him so that he can
make efforts to arrange a residence for
himself. In pursuance of such application
dated 26.07.1997, the refund voucher was
prepared in respect of House No. 5/367,
Viram Khand, Gomti Nagar and was
submitted to the Branch Manager UCO
Bank, but in the Challan Nos. 8579, 8591,
8592, 13877, and 12516, which were
mentioned in the refund order, the name of
Sri Ram Pyare Panika was not shown nor
there was any mention of deposit of any
amount by Sri Ram Pyare Panika. Hence,
the bank returned the said vouchers without
making any payment to Sri Ram Pyare
Panika . As per challan available of various
dates in the office of the L.D.A., payment
of Rs.2,37,500/- alone was done by Sri
Ram Pyare Panika in pursuance of the
allotment
of
Flat
No.R-152,
Nehru
Enclave. It has been admitted also in the
counter affidavit that although refund
vouchers were prepared, but were returned
by UCO Bank, therefore, no refund could
be made to Sri Ram Pyare Panika and he
died soon thereafter.

15. On the basis of the counter
affidavit and the order impugned dated
08.05.2024, it has been argued by Sri
Ratnesh Chandra that the petitioner is
claiming that Sri Ram Pyare Panika had
executed
a
Will
in
his
favour
on
01.06.1999, and also an unregistered
Agreement to Sell on the same day, but
since Sri Ram Pyare Panika had himself
made an application on 26.07.1997, for
getting the said Flat R-152 Nehru Enclave
exchanged with House No. 5/367, Viram
Khand, Gomti Nagar, and the said house
was also allotted to him against which he
252 INDIAN LAW REPORTS ALLAHABAD SERIES
also made certain payments, Sri Ram Pyare
Panika had no right to execute any
Agreement to Sell, or any Will in favour of
the petitioner by claiming himself to be the
owner of the Flat in question. As soon as
House No. 5/367 Viram Khand was allotted
on request of Sri Ram Pyare Panika in
place of Flat No. R-152 Nehru Enclave, all
rights of Panika were extinguished from
Flat No.R-152, Nehru Enclave, Gomti
Nagar, Lucknow. Sri Ram Pyare Panika
was
incompetent
to
enter
into
any
agreement to sell or even bequeath the said
Flat through a Will in favour of the
petitioner or anyone else.

16. It has also been pointed out from
Paragraph-22 of the counter affidavit that
Sri Ram Pyare Panika was informed at the
time of delivery of possession of the Flat in
September,
1994
of
the
terms
and
conditions contained in the Hire Purchase
Agreement and that he was required to
make payment of Rs.3,70,200/- along with
interest at the rate of 21% in quarterly
installments of Rs.21,425/-. However, the
same was not deposited. Sri Ram Pyare
Panika instead initially sought exchange of
Flat in question with HIG house and later
on sought refund of the past payment made
by him for the flat. Also, reliance was
placed on letters dated 24.04.1993 and
28.07.1994 filed along with the said
counter affidavit, mentioning therein the
tentative/estimated
cost
of
the
Flat,
category name Rupayan, of Rs.4,25,000/-,
which
was
later
on
increased
to
Rs.6,42,000/-.
In
the
letter
dated
18.07.1994, payment of only Rs.3,31,250/-
was admitted since the date of its allotment
on 23.06.1989, by the Property Officer,
Gomti Nagar for L.D.A.

17. It has further been argued by Shri
Ratnesh Chandra that in fact, there was no
Agreement to Sell as alleged by the
petitioner in his petition and also in his
representation made to the opposite party
No. 3. The alleged agreement to sell which
has been filed by the petitioner as
annexure-9 to the petition is in fact, a
notarized Sale Deed as it clearly mentions
at the top of the document "Vikray Vilekh
Patra". The said notarized and unregistered
sale deed has been read out in its entirety
by the counsel for the respondent. It says
that Sri Ram Pyare Panika is the owner and
in possession of Flat No. R-152, which is
free from all encumbrances and for the sale
of which he has a legal right and he has
decided to sell it off for a sale consideration
of Rs.5,00,000/- to Shiv Kumar, son of
Kamta Prasad, resident of Teliyarganj,
Allahabad. It further recites that such
Rs.5,00,000/- has been accepted in cash
and possession of the Flat has been given to
the purchaser and that Sri Ram Pyare
Panika's legal heirs would have no right or
interest in the same. It also says that the
purchaser would have the right on the basis
of said sale deed to get his name mutated in
the revenue records as owner and in
possession. It has been argued that at the
time, when the said sale deed was executed
by Sri Ram Pyare Panika, he had no right/
title or interest over the property and such
unregistered notarized sale deed ought to
be impounded as it allegedly transfers
immovable property without payment of
requisite Registration fees and Stamp duty.

18. It has also been argued that when
Sri Ram Pyare Panika had sold off the Flat
in question to the petitioner, he could not
have bequeathed it on the same day to the
petitioner, hence, the opposite party no. 3
was entitled to presume that the Will could
not be relied upon by the petitioner to
create any right/ title or interest in the
property. Referring to page 140 and 141 of
7 All. Shiv Kumar Vs. State of U.P. & Ors.
253
the paperbook, it has been argued that once
allotment of Flat in question had been
exchanged for allotment of HIG House No.
5/367, Viram Khand and Sri Ram Pyare
Panika, having discovered that he could not
pay for the said HIG house, had asked for
refund of his money along with interest in
July, 1997, he could not have claimed to be
the owner and in possession of Flat R-152.
The petitioner cannot claim that since the
L.D.A. did not refund the amount deposited
by Sri Ram Pyare Panika, the Flat in
question belonged to him and he could
validly transfer the same in favour of the
petitioner. The question as to whether
L.D.A. had refunded the money deposited
by Sri Ram Pyare Panika is a question
which Sri Ram Pyare Panika's legal heirs
alone can raise.

19. It has also been argued that
although in the order dated 08.05.2024
reference has been made of by the opposite
party No. 3 of Sri Ram Pyare Panika's
children asking for refund of money
deposited by Sri Ram Pyare Panika , the
petitioner has not impleaded any of them
and he claims that he does not know them,
although he had been allegedly living with
Sri Ram Pyare Panika and taking care of
him and moved by his love and affection,
Sri Ram Pyare Panika had bequeathed the
Flat in question to him. It has also been
argued that refund vouchers were indeed
prepared, but they did not contain any
description of money deposited by Sri Ram
Pyare Panika, and therefore, the bank had
returned such vouchers and by the time
actual refund could be initiated again, Sri
Ram Pyare Panika had already died. Sri
Ratnesh Chandra has also argued that the
petitioner claims to have been sold or
bequeathed the Flat in question in 1999, but
he made no effort to get such sale deed/will
deed executed till filing of the Writ-C No.
117 of 2024: Shiv Kumar Vs. State of U.P.
and others. The petitioner waited for
almost twenty five years before staking his
claim on the basis of these alleged
documents. In the said petition L.D.A. filed
counter affidavit, disputing the claim of the
petitioner regarding subsisting allotment in
favour of Sri Ram Pyare Panika. They also
stated that a wrong entry had been made on
the portal with regard to allotment of the
Flat in question in favour of Vipin Bakshi,
which has been ordered to be corrected.
The earlier writ petition was disposed of
without entering into the merits of the
controversy with the direction to decide the
petitioner's
representation.
Now
the
representation has has been decided by the
opposite party No.3, and in the garb of
decision on the said representation, a fresh
cause of action has been sought to be
created. When the initial writ petition was
filed, it was a delayed petition with no
explanation for such delay regarding
putting forth a dead / stale claim. It has also
been argued by the learned counsel for the
L.D.A. that writ jurisdiction is an equitable
jurisdiction and should not be exercised in
favour of a person who is in possession of
public property without any right/ title or
interest created in his favour by the L.D.A.
Sri Ram Pyare Panika had made certain
payments to L.D.A. and not full sale
consideration for Flat R-152 Nehru Enclave
and his children can at best on the basis of
such payments having been made by their
father ask for refund along with interest.

20. The learned counsel for the
petitioner in rejoinder has reiterated the
claim of the petitioner and has argued that
this Court has to see (a) whether the rights
and interest of Sri Ram Pyare Panika stood
extinguished after 24.07.1997, when he
asked for refund of his money under
compulsion as a dispute had been created
254 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Army regarding the ownership of the
land on which such Flats had been raised
by the L.D.A.?; (b) whether on 01.06.1999
when Sri Ram Pyare Panika had made out a
Sale deed and Will in favour of the
petitioner, he had any alienable right or
interest in the property?; (c) whether
admitting possession of the petitioner for
twenty five years, L.D.A. can forcibly evict
the petitioner under the provisions of the
U.P. Urban Planning and Development Act
of 1973?; (d) whether the findings recorded
in the impugned order are arbitrary and
perverse?.

21. It has been argued on the basis of
Sri Ram Pyare Panika's application for
allotment of alternative house in exchange
for Flat R-152, that such application was
made under duress and compulsion as the
Army had taken over all the vacant Flats in
Nehru
Enclave.
The
allotment
letter
approving such exchange asked Sri Ram
Pyare Panika to deposit Rs.7,49,718/- latest
by 31.12.1996, Sri Ram Pyare Panika could
not deposit the money and asked for a
refund only out of compulsion as he could
not arrange such a huge amount in such a
short period of time. The L.D.A. admitted
that Rs.3,31,250/- had been deposited till
18.07.1994, by Sri Ram Pyare Panika.
They did not return such money. They also
did not cancel the allotment of Flat No. R152, therefore, at the time when Sri Ram
Pyare Panika executed the Sale deed and
the Will in favour of the petitioner his
allotment was intact. Part performance of
the contract between L.D.A. and Sri Ram
Pyare Panika was also admitted. The
agreement entered into between L.D.A. and
Panika on 15.09.1994 also stated that
his/dependents and legal heirs would be
entitled to succeed to such property. Since
refund was not made, and the possession of
the Flat in question, was still with Sri Ram
Pyare Panika, he was entitled to alienate
the property by means of either a Will or a
Sale deed. Under the Transfer of Property
Act, any interest that the seller has in any
immovable property, either in the present
or in the future, can be transferred by him
to the purchaser. One of the residents in the
colony had complained about use of garage
of Flat R-134, Nehru Enclave by the
petitioner to the L.D.A. and the L.D.A. had
issued a Show Cause Notice to the
petitioner on 27.06.2023 admitting his
possession over Flat R-152. Similarly, a
joint inspection of the property was done
and the Executive Engineer had asked the
petitioner to remove the temporary shed he
had constructed on the terrace by notice
dated 25.09.2023. It has been argued on the
basis of such notices, copies of which have
been filed as annexures to the petition that
the L.D.A. knew since long that the
petitioner is in possession over Flat R-152,
and even if he was a trespasser, he cannot
be removed without following due process
of law.

22. Reiterating the argument made
earlier that even an unregistered agreement
to sell can be enforced by filing a Suit for
specific performance, it has been argued
that not only present interest in the property
can be sold but also future interest in
property can be sold through an agreement
to sell as per Section 5 and Section 6 of the
Transfer of Properties Act. It has also been
argued that the Will made out by Sri Ram
Pyare Panika on 01.06.1999, in favour of
the petitioner has neither been challenged
by Sri Ram Pyare Panika's children nor by
L.D.A.. Hence it would be binding till it is
set aside by competent Civil Court.

23. Reference has been made again to
Section 18 of the Registration Act, 1908,
and it has been argued that even an
7 All. Shiv Kumar Vs. State of U.P. & Ors.
255
unregistered Will can be acted upon. It has
been again reiterated that relinquishment of
right of Sri Ram Pyare Panika can only
come to be when refund of his money
would have been made by L.D.A. and since
the petitioner was living with him and
taking care of him he had a right to such
money and interest there on having accrued
in his favour which interest the petitioner is
not claiming but he is claiming his right to
the property bequeathed by Sri Ram Pyare
Panika to him instead. It would therefore be
appropriate that this Court directs the
L.D.A. to either take remaining sale
consideration from the petitioner and
execute a sale deed in his favour of the Flat
in question or allot him some other vacant
Flat which is available with L.D.A. as is
evident from information available on their
website regarding proposal to auction such
vacant properties.

24. Learned Counsel for the petitioner
has placed reliance upon Jugalkishore
Saraf Vs. Raw Cotton Company Ltd., AIR
1955 Supreme Court 376, and paragraph
53 thereof. Justice Bhagwati, while giving
his concurring opinion with regard to
whether the Respondent Company could
step into the shoes of the decree holder
under Order XXI Rule 16 of the C.P.C.
made certain observations about Section 5
of the Transfer of Property Act.

25. Justice H.N. Bhagwati, while
delivering his concurring opinion explained
Section 5 of the Transfer of Property Act.
He observed that "Transfer of Property" is
an act by which the transferor conveys
property in present or in future, to the
transferee. A transfer of a decree by
assignment in writing may be affected by
conveying the decree in the present or in
future, to the transferor, but for the transfer
to operate in future, the decree which is the
subject matter of the transfer must be in
existence at the date of the transfer. The
words "in present or in future" qualify the
word conveys and not the word property in
the Section and it has been held that a
transfer of property that is not in existence
operates as a contract to be performed in
the future which may be specifically
enforced as soon as the property comes into
existence. Justice Bhagwati placed reliance
upon observations made by the Privy
Council in an English case where it
observed:-

"But how can there be any
transfer, actual or constructive, upon a
contract under which the vendor sells that
of which he has not possession, and to
which he may never establish a title? The
bill of sale in such a case can only be
evidence of a contract to be performed in
future and upon the happening of a
contingency, of which the purchaser may
claim a specific performance, if he comes
to court showing that he has himself done
all that he was bound to do."

It is only by operation of the
equitable principle that as soon as the
property comes into existence and is
capable of being identified, equity taking as
done that which ought to be done fastens
upon the property, and contract to assign
thus
becomes
a
complete
equitable
assignment. The decree not being in
existence at the time of the transfer cannot
be said to have been transferred by the
assignment in writing and the matter
resting, merely in a contract to be
performed in future, which may be
specifically enforced as soon as the decree
was passed, and there would be no transfer
automatically in favour of the 'transferee'
of the decree when passed. It would require
a further act on the part of the 'transferor'
to completely effectuate the transfer, and if
256 INDIAN LAW REPORTS ALLAHABAD SERIES
he did not do so, the only remedy for the
transferee would be to sue for the specific
performance of the contract to transfer.
There would therefore be no legal transfer
or assignment of the decree to be passed in
future by virtue of the assignment in
writing executed before the decree came
into existence, and the only way in which
the transferee could claim that the decree
was transferred to him by assignment in
writing would be by the operation of the
equitable principle above enunciated, and
the contract to assign having become a
complete, equitable assignment of the
decree.

26. The Judgement in Jugalkishore
Saraf (supra) is inapplicable to the facts of
the case as we shall discuss later in this
judgement.

27. The learned Counsel for the
petitioner
has
argued
that
even
an
unregistered Will can be enforced and has
placed reliance upon judgement rendered
by a Coordinate Division Bench in a matter
under Article 227 No. 8279 of 2022:
Pramila Tiwari versus Anil Kumar Mishra
and 4 others.

28. We do not dispute the proposition
of law pronounced by the Coordinate
Bench in Pramila Tiwari (supra). However,
we have our own view about the
applicability of the said judgement to the
facts of the instant case.

29.