# Smt. Krishna v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-09
- **Case number:** Writ-C No. 17717 of 2022
- **Bench:** Manoj Kumar Gupta, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-krishna-v-state-of-u-p-ors-49134
- **Pages:** 5

## Headnote

(A) Civil Law - mere agreement to sell
does not confer any title in the property -
Clause U-3 of brochure - if due to any
'force majeure' or such circumstances
beyond the Authority's control - the
Authority is unable to make allotment or
the possession of the allotted plot - entire
registration money or the deposit
-
depending on the stage of allotment will
be refunded along with simple interest at
the rate of 4% per annum if delay in
refund is more than one year from such
date. (Para -4,11)

Plot allotted to petitioner - comprised of land
acquired by Authority - under land acquisition
proceedings - acquisition subject matter of
challenge before Court in Writ Petition -
dismissed - matter taken to Supreme Court -
allowed -- delivery of possession of plot allotted
to petitioner - beyond control of Authority -
acquisition quashed by Supreme Court -
Authority aware of factum of pending litigation -
- not apprised allottees of the said fact - kept
them in dark and instead of returning money -
kept accepting installments.(Para - 2,3,6)

HELD:-Petitioner who had been deliberately
deprived of the returns on her investment solely
attributable to the Authority is entitled to
interest at the rate of 4% per annum from the
date of deposit till the date acquisition was set
aside by the Supreme Court and @ 12% per
annum for the period beyond it until the date of
actual payment.(Para -12 )

Petition Allowed with cost. (E-7)

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Thus, the writ petition has been filed
making false averments and suppressing
material facts.

8. In the case of United India
Insurance Company Ltd. V. B.Rajendra
Singh and others, JT 2000(3) SC.151,
considering the fact of fraud, Hon'ble
Supreme Court held in paragraph 3 as under :

"Fraud and justice never dwell
together". (Frans et jus nunquam cohabitant)
is a pristine maxim which has never lost its
temper overall these centuries. Lord Denning
observed in a language without equivocation
that "no judegment of a Court, no order of a
Minister can be allowed to stand if it has
been obtained by fraud, for fraud unravels
everything"(Lazarus Estate Ltd. V. Beasley
1956(1)QB 702).

 (Emphasis supplied by the Court)."

9. In the case of S.P. ChengalVaraya
Naidu (dead) by L.Rs Vs. Jagannath (dead) by
L.Rs and others, AIR 1994 SC 853, the Hon'ble
Supreme Court held in para 7 as under :-

"7. The High Court, in our view, fell
into patent error. The short question before the
High Court was whether in the facts and
circumstances of this case, Jagannath obtained
the preliminary decree by playing fraud on the
court. The High Court, however, went haywire
and made observations which are wholly
perverse. We do not agree with the High Court
that "there is no legal duty cast upon the plaintiff
to come to court with a true case and prove it by
true evidence". The principle of "finality of
litigation" cannot be pressed to the extent of such
an absurdity that it becomes an engine of fraud in
the hands of dishonest litigants. The courts of law
are meant for imparting justice between the
parties. One who comes to the court, must come
with clean hands. We are constrained to say that
more often than not, process of the court is being
abused. Property-grabbers, tax-evaders, bankloan-dodgers and other unscrupulous persons
from all walks of life find the court-process a
convenient lever to retain the illegal-gains
indefinitely. We have no hesitation to say that a
person, who's case is based on falsehood, has no
right to approach the court. He can be summarily
thrown out at any stage of the litigation."

10. We find that the petitioner has
approached this Court by suppressing and
concealing material facts. Therefore, the writ
petition deserves to be dismissed with exemplary
cost.

11. For all the reasons aforestated, the writ
petition is dismissed with a cost of Rs. One lac
which shall be deposited by the petitioner with the
High Court Legal Services Committee within two
weeks from today. A copy of this order shall be
sent by the learned Standing Counsel to the
Additional District Magistrate (Finance and
Revenue), Ghaziabad within a week who shall
ensure compliance of this order.

12. Since, the financier i.e. M/s Hero
Fincorp Limited has not been made party in the
present writ petition, therefore, we direct the
Additional District Magistrate (Finance and
Revenue), Ghaziabad to inform about this order to
the aforesaid M/s Hero Fincorp Limited.
----------
(2023) 1 ILRA 232
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 17717 of 2022

Smt. Krishna ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1 All. Smt. Krishna Vs. State of U.P. & Ors.
233
Counsel for the Petitioner:
Sri Jata Shankar Pandey, Sri Ashish Rai, Sri
Om Prakash Rai, Sri Prabhat Kumar
Srivastava, Sri Prakhar Srivastava, Sri
Rakesh Kumar Srivastava

Counsel for the Respondents:
C.S.C., Ms. Anjali Upadhya, Sri Arvind
Srivastava, Sri Prabhat Kumar Srivastava,
Sri Rakesh Kumar Srivastava

(A) Civil Law - mere agreement to sell
does not confer any title in the property -
Clause U-3 of brochure - if due to any
'force majeure' or such circumstances
beyond the Authority's control - the
Authority is unable to make allotment or
the possession of the allotted plot - entire
registration money or the deposit
-
depending on the stage of allotment will
be refunded along with simple interest at
the rate of 4% per annum if delay in
refund is more than one year from such
date. (Para -4,11)

Plot allotted to petitioner - comprised of land
acquired by Authority - under land acquisition
proceedings - acquisition subject matter of
challenge before Court in Writ Petition -
dismissed - matter taken to Supreme Court -
allowed -- delivery of possession of plot allotted
to petitioner - beyond control of Authority -
acquisition quashed by Supreme Court -
Authority aware of factum of pending litigation -
- not apprised allottees of the said fact - kept
them in dark and instead of returning money -
kept accepting installments.(Para - 2,3,6)

HELD:-Petitioner who had been deliberately
deprived of the returns on her investment solely
attributable to the Authority is entitled to
interest at the rate of 4% per annum from the
date of deposit till the date acquisition was set
aside by the Supreme Court and @ 12% per
annum for the period beyond it until the date of
actual payment.(Para -12 )

Petition Allowed with cost. (E-7)

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri O.P. Rai, learned
counsel for the petitioner, learned Standing
Counsel for respondent no. 1 and Ms.
Anjali Upadhya for respondent nos. 2 and
3.

2. The petitioner is an allottee of plot
no. 19, Block-C, Sector Zeta-2, area 120 sq
mts, vide allotment letter dated 7.1.2011,
by Greater Noida Industrial Development
Authority (for short ''the Authority'). The
allotment was on lease hold basis for 90
years. The allotment letter specifically
mentions that possession was likely to be
offered to the allottees within two years
from the date of issue of allotment letter.
The allottee had to complete formalities for
execution of lease deed upon intimation. If
the allottee fails to execute legal documents
in time, action for cancellation of allotment
and forfeiture of deposited money would be
taken. According to brochure, 30% of the
total premium of the plot (after adjusting
registration money already paid) would be
payable within 45 days from the date of
allotment under Plan D-2 opted by the
petitioner and balance 70% was payable in
ten
equal
half-yearly
installments
calculated from the 46th day from the date
of allotment with interest @ 12% per
annum. The allottee had been given option
to surrender the allotment. In case of
surrender after the draw of plots/allotment
but within 30 days from the date of
allotment, 10% of the registration money
would be forfeited and balance amount
deposited would be refunded without
interest. In case of surrender within 45 days
of allotment under payment plan D-2, 50%
of the registration money would be
forfeited and balance amount would be
refunded without any interest. In case the
234 INDIAN LAW REPORTS ALLAHABAD SERIES
allotment is surrendered after 45 days
under payment plan D-2 but before six
months from the date of allotment, 10% of
the total premium of plot would be
forfeited and the balance amount, would be
refunded without any interest. In case of
surrender after six months from the date of
allotment, entire deposited money would be
forfeited. In case the allottee fails to deposit
the due amount within stipulated time,
allotment was liable to be cancelled and in
such case, the money deposited till the date
of cancellation would be forfeited.

3. The petitioner deposited the
registration money and installments (total:
Rs. 19,80,071) from time to time. However,
the Authority failed to execute lease deed
and deliver possession of the allotted plot to
the petitioner despite having realised entire
amount from the petitioner in terms of the
allotment
letter.
On
21.8.2019,
the
respondent-Authority for the first time
informed the petitioner that the Authority
had taken decision to cancel the Scheme and
that refund will be made in terms of Clause
U-3 of the brochure and the petitioner will
only be paid 4% per annum interest. Even,
thereafter, when money was not returned,
the petitioner filed the instant petition for
issue of a writ of mandamus directing the
respondent-Authority to forthwith refund the
entire amount with interest @ 12% per
annum.

4. Under Clause U-3, it was provided
that if due to any 'force majeure' or such
circumstances beyond the Authority's control,
the Authority is unable to make allotment or
the possession of the allotted plot, entire
registration money or the deposit, depending
on the stage of allotment will be refunded
along with simple interest at the rate of 4%
per annum if delay in refund is more than one
year from such date.

5. Learned counsel for the petitioner
submitted that Clause U-3 is not applicable
to the facts of the instant case inasmuch as
the land acquisition proceedings in relation
to the allotted land had concluded on
15.4.2011
when
the
Supreme
Court
allowed Civil Appeal No. 3261 of 2011 and
quashed the acquisition proceedings. The
retention of the money deposited by the
petitioner thereafter was without any
justification. It was not beyond the control
of the Authority to refund the amount soon
after the judgement was delivered by the
Supreme Court. However, it kept the
allottees in dark and cancelled the Scheme
only on 31.5.2019, and offered to refund
the money on 21.8.2019, and then also did
not actually return the money, compelling
the petitioner to approach this Court.

6. It is not disputed by Ms. Anjali
Upadhya, learned counsel appearing on
behalf of Greater Noida Authority that the
plot which was allotted to the petitioner
comprised of the land acquired by the
Authority under the land acquisition
proceedings and the acquisition was subject
matter of challenge before this Court in
Writ Petition No. 64127 of 2008 (Radhey
Shyam Vs. State of U.P. and others). It was
dismissed by this Court on 15.12.2008.
Thereafter, the matter was taken to
Supreme Court in S.L.P. (C) No. 601 of
2009 (Civil Appeal No. 3261 of 2011)
which was allowed by the Supreme Court
by judgement and order dated 15.4.2011.
Thus, on the date when allotment was
made, the challenge to the acquisition
proceedings
was
pending
before
the
Supreme Court. The draw of lots was held
on 30.12.2010. The brochure did not
indicate that the Greater Noida Authority
had informed the prospective buyers about
pendency of the said litigation before the
Supreme Court.
1 All. Smt. Krishna Vs. State of U.P. & Ors.
235

7. As noted above, the Civil Appeal
was allowed on 15.4.2011. It is true that
delivery of possession of the plot allotted to
the petitioner was beyond the control of the
Authority as the acquisition was quashed
by the Supreme Court. Nonetheless, as
noted above, the Authority was aware of
the factum of pending litigation but it had
not apprised the allottees of the said fact
even after the acquisition was quashed. It
kept them in dark and instead of returning
the
money,
it
kept
accepting
the
installments, such that it accepted money
from
the
petitioner
in
half
yearly
installments upto 2.1.2017 with interest @
12% per annum. It amounts to a clear fraud
on part of the respondent-Authority and
unjust enrichment. It was only when the
petitioner raised the dispute that she was
informed about return of money, without
interest, taking shelter behind Clause no.
U-3, which in our considered opinion,
would not apply beyond the date on which
the Supreme Court decided the challenge to
the acquisition proceedings and quashed
the same. It was well within the control of
the Noida Authority to have returned the
money to the allottees forthwith. In fact
retention of money beyond that period
amounts to breach of trust and a deliberate
act on part of its officials.

8. It is noteworthy that under the
scheme if the allottee opts for payment of
premium in installments (Plan D-2- opted
by the petitioner), he had to pay interest @
12 per annum. In case of default in
payment of installment beyond three
months, the interest payable was 15% per
annum. If for any reason, the allottee is
unable to obtain lease and seeks surrender
of the allotment, he is saddled with serious
consequences including forfeiture of entire
amount deposited up to that date. On the
other hand, the Authority is not ready to
pay interest even at the rate which it had
charged from the allottees despite being
grossly
negligent
in
performing
its
obligations and duties. The Authority
claims to have cancelled the scheme in the
year 2019 which clearly goes to show that
it
was
sleeping
over
the
matter
unconcerned with the plight of the allottees.

9. Apposite to note that after notice of
the writ petition was served on the
Authority
on
7.6.2022,
it
sent
a
communication dated 21.6.2022 to the
petitioner informing her that it would not
be possible for the Authority even to return
principal amount to the petitioner. It is
stated therein that the version of the
petitioner that the plot had not been sold by
her to any one is not correct. She had
executed an agreement to sell in favour of
the intervenor (Gaurav Chandela) on
3.5.2013. His suit is pending in Civil Court
(Case No.952 of 2021). Further, she had
executed a Power of Attorney in favour of
Sushil Kumar who had filed a writ in this
Court. Consequently, until the cases are
decided, the money would not be refunded
to the petitioner.

10. The agreement to sell is without
possession. On its basis, the intervenor had
instituted Original Suit No.952 of 2021
against the petitioner and Greater Noida for
permanent
injunction
restraining
the
defendants from acting in breach of the
conditions stipulated in the agreement
dated 3.5.2013 and for grant of damages @
Rs.50,000/- per month. The said suit is
stated to be pending. No interim injunction
or stay is operating in the said suit so as to
prevent the Authority from returning the
money deposited against the plot.

11. In paragraph 5 of the rejoinder
affidavit, the petitioner has alleged that she
236 INDIAN LAW REPORTS ALLAHABAD SERIES
had cancelled the agreement to sell.
Moreover, mere agreement to sell does not
confer any title in the property. The suit
that was filed was for permanent injunction
and
damages
and
not
for
specific
performance. Additionally, as per Clause P2, no transfer is permissible without
permission of the Authority and that too,
when transfer was made after execution of
the lease deed. In the instant case, no lease
deed was ever executed, so even otherwise,
the Authority could not have taken notice
of any such transaction. Therefore, the
stand taken by the Authority that it would
not return the money to the petitioner until
the suit filed by the intervenor remains
pending is also not sustainable in law. It
should have left the inter se dispute
between them to be decided in the suit.

12. Having regard to the facts and
circumstances of the case, we are of the
considered opinion that the petitioner who
had been deliberately deprived of the returns
on her investment solely attributable to the
Authority is entitled to interest at the rate of
4% per annum from the date of deposit till
the date acquisition was set aside by the
Supreme Court that is 15.4.2011 and @ 12%
per annum for the period beyond it until the
date of actual payment.

13. We also note that not only the
petitioner has been put to harassment by the
respondent-Authority, but also has had to
incur litigation expenses for which too she
ought to be compensated.

14. In the result, the petition stands
allowed with cost of Rs. 50,000/- to be
paid by Greater Noida Authority to the
petitioner within two weeks.

15. Before parting, we clarify that we
should not be understood to have expressed
opinion on any issue involved in the suit
filed by the intervenor. All pleas and
contentions therein are left open for being
decided without being influenced by any
observations made herein.
----------
(2023) 1 ILRA 236
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

THE HON'BLE YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 21993 of 2022
And
Writ-C No. 22082 of 2022

Alladin ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hari Prakash Mishra, Sri Dharmendra
Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Ishir Sripat, Sri Krishna Kant
Singh, Sri Mithilesh Kumar Mishra, Sri
Saurabh Patel

(A) Revenue Law - The U.P. Revenue
Code, 2006 - Sections 32, 38(1) & 210 -
summary
proceedings
relating
to
correction of revenue records do not
decide any question of title and the orders
passed in such proceedings do not come in
way of a person getting his rights
adjudicated in a regular suit - writ
petitions arising out of such summary
proceedings, are not to be entertained in
exercise of powers under Article 226 of
the Constitution of India - an entry in
revenue records does not confer title on a
person whose name appears in records-ofrights - such entries are only for 'fiscal
purposes' - no ownership is conferred on
the basis thereof - question of title of a