# Sudhir Kumar Jain v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 755
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-23
- **Case number:** Civil Misc. Writ Petition No. 23072 of 2008
- **Bench:** Vineet Saran, Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudhir-kumar-jain-v-state-of-u-p-and-others-41162
- **Pages:** 3

## Headnote

Constitution of India, Article 226cancellation
of
allotment-petitioner
was allotted flat C-type by Saharanpur
Development
Authority
on
05.05.2006-total amount Rs.93,500/-
payable
upto
30.05.2008-petitioner
deposited all quarterly instalments-in
default of one instalment-allotment
cancelled with condition that if the
petitioner desirous to regularize the
allotment-deposit entire amount as
per
enhanced
rate-petitioner
submitted draft of Rs.25,350/- on
19.03.2008-prior to cut of date total
amount of Rs.89,511/- already paidsubstantial amount already depositedthe same be adjusted against the total
amount be fixed within one month by
the development authority being a
model State-expected to act fairlycancellation
of
allotment
without
notice
liable
to
be
quashedDevelopment Authority shall conclude
entire amount as per rate of allotment
order after adjusting Rs.25,350/- also.

Held: Para 7

Keeping in view that the last date for
payment of last installment has not
yet
expired
even
today
and
the
petitioner
has
made
substantial
deposit prior to the passing of the
impugned order, even though there
has been default in payment of some
installments
by
the
petitioner,
cancellation order could have been
passed
only
after
notice
to
the
petitioner
to
make
such
payment
alongwith normal or penal interest, if
any. In such view of the matter, we
are of the firm view that the order
dated 26.3.2008 is unjustified and
arbitrary. We accordingly quash the
same. In case the respondents have
not
encashed
the
draft
dated
19.3.2008 for a sum of Rs.25,350/-,
the same may be encashed or returned
to the petitioner and in case, if it has
been encashed by the Development
Authority, the said amount shall be
adjusted towards the payment made
by the petitioner. Whatever amount is
then found due from the petitioner,
that
may
be
intimated
to
the
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner within 15 days from today
and the petitioner be provided an
opportunity to make such payment
within a month thereafter. It is made
clear that the amount so demanded
from the petitioner shall be in terms of
the allotment order dated 5.5.2006
and not on the enhanced rate, which
the respondents may now be charging
from the new allottees.

## Text

3 All] Sudhir Kumar Jain V. State of U.P. and others
755
candidate to apply for the post in
question.

7. In view of the aforesaid, the
impugned order cannot be sustained
and is quashed. The writ petition is
allowed.

8. The matter is remitted again to
the District Inspector of Schools to
pass fresh orders in accordance with
the observations made aforesaid within
six weeks from the date of the
production of a certified copy of this
order.

9. A certified copy of this order
shall be made available to Sri Amit
Kumar, the learned standing counsel to
forward the same to the Secretary,
Secondary Education for necessary
action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2008

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 23072 of 2008

Sudhir Kumar Jain

...Petitioner
Versus.
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Chetan Chatterji

Counsel for the Respondents:
Sri. Arjun Singhal
S.C.

Constitution of India, Article 226cancellation
of
allotment-petitioner
was allotted flat C-type by Saharanpur
Development
Authority
on
05.05.2006-total amount Rs.93,500/-
payable
upto
30.05.2008-petitioner
deposited all quarterly instalments-in
default of one instalment-allotment
cancelled with condition that if the
petitioner desirous to regularize the
allotment-deposit entire amount as
per
enhanced
rate-petitioner
submitted draft of Rs.25,350/- on
19.03.2008-prior to cut of date total
amount of Rs.89,511/- already paidsubstantial amount already depositedthe same be adjusted against the total
amount be fixed within one month by
the development authority being a
model State-expected to act fairlycancellation
of
allotment
without
notice
liable
to
be
quashedDevelopment Authority shall conclude
entire amount as per rate of allotment
order after adjusting Rs.25,350/- also.

Held: Para 7

Keeping in view that the last date for
payment of last installment has not
yet
expired
even
today
and
the
petitioner
has
made
substantial
deposit prior to the passing of the
impugned order, even though there
has been default in payment of some
installments
by
the
petitioner,
cancellation order could have been
passed
only
after
notice
to
the
petitioner
to
make
such
payment
alongwith normal or penal interest, if
any. In such view of the matter, we
are of the firm view that the order
dated 26.3.2008 is unjustified and
arbitrary. We accordingly quash the
same. In case the respondents have
not
encashed
the
draft
dated
19.3.2008 for a sum of Rs.25,350/-,
the same may be encashed or returned
to the petitioner and in case, if it has
been encashed by the Development
Authority, the said amount shall be
adjusted towards the payment made
by the petitioner. Whatever amount is
then found due from the petitioner,
that
may
be
intimated
to
the
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner within 15 days from today
and the petitioner be provided an
opportunity to make such payment
within a month thereafter. It is made
clear that the amount so demanded
from the petitioner shall be in terms of
the allotment order dated 5.5.2006
and not on the enhanced rate, which
the respondents may now be charging
from the new allottees.

(Delivered by Hon'ble Vineet Saran, J.)

1. Heard Sri Chetan Chatterji,
learned counsel for the petitioner as well
as Sri Arjun Singhal appearing for
respondents no.2 to 4. Affidavits have
been exchanged between the parties and
with the consent of learned counsel for
parties, the writ petition is disposed of at
the admission stage itself.

2. The petitioner was allotted C
type plot no. 686 by the respondentsSaharanpur
Development
Authority
vide order dated 5.5.2006. The said
allotment was initially made in favour
of petitioner after the petitioner had
completed all the necessary formalities.
As per the terms of allotment, the
petitioner was required to deposit a
total sum of Rs.93,500/- for the said
plot. The said amount was to be
deposited in twelve easy quarterly
installments, payable by 30.9.2008.
The petitioner paid six installments but
there was some default of payment of
four installments. The installments so
fixed were ranging around 6,000/- to
7000/-, to be paid quarterly. On such
default the allotment of the petitioner
was cancelled by the order dated
26.3.2008.
In
the
said
order,
a
condition was imposed that in case if
the petitioner so wishes, then he may
pay the price of the plot at enhanced
rates within fifteen days and get his
allotment regularized. It is this order
dated
26.3.2008,
which
is
under
challenge in this writ petition.

3. The submission of learned
counsel for the petitioner is that though
there was some default in payment of
certain installments but prior to the
passing
of
impugned
order,
the
petitioner had got prepared a bank draft
dated 19.3.2008 for Rs.25,350/-, which
was deposited with the respondentsDevelopment
Authority.
After
including
the
said
amount
of
Rs.25,350/- the total amount paid by
the petitioner comes to Rs.89,511/-, as
against the total amount payable by
30.9.2008, which was Rs.93,500/-.

4. Sri Singhal contends that as per
the terms of allotment order, any
default of payment by three months
would warrant cancellation of the
allotment and as such the impugned
order is fully justified and is in terms
of the allotment order.

5. Be that as it may, the
respondents do not dispute that the last
installment was to be paid by 30th
September 2008, and the impugned
order is of 5.5.2008. The bank draft for
a sum of Rs.25,350/- (which according
to the respondents was tendered to
them but they refused to accept) had
been prepared a week prior to the
passing of the impugned order. The
Development
Authorities
are
instrumentalities of the State and as a
model State, they are expected to act
fairly and not like profit making
business companies or builders. The
purpose
for
establishment
of
Development Authorities is to provide
housing facilities to the common man.
3 All] Yudhveer @ Bata V. State of U.P.
757
It is this object which is to be fulfilled.
The allotment order itself indicates that
in case of any default, the authorities
would be entitled to charge penal
interest.

6. The normal interest payable as
per the allotment order is 15% per
annum. The authorities could have
charged such interest, or any penal
interest, on default, if any, of the
allottee, for which the petitioner should
have been given notice, and in case he
still defaulted in payment of the said
amount, the allotment could then have
been cancelled by the authorities. A
reasonable opportunity has to be given
to the allottee prior to the cancellation
of
allotment.
Imposition
of
such
condition that after the cancellation of
allotment, fresh allotment shall be
made on payment of the entire amount
at enhanced rates within 15 days, is
wholly unreasonable and arbitrary, as
the same clearly shows that the
respondent authorities are acting like
profit
making
bodies
or
land
dealers/builders.

7. Keeping in view that the last
date for payment of last installment has
not yet expired even today and the
petitioner has made substantial deposit
prior to the passing of the impugned
order, even though there has been
default
in
payment
of
some
installments
by
the
petitioner,
cancellation order could have been
passed
only
after
notice
to
the
petitioner
to
make
such
payment
alongwith normal or penal interest, if
any. In such view of the matter, we are
of the firm view that the order dated
26.3.2008 is unjustified and arbitrary.
We accordingly quash the same. In
case the respondents have not encashed
the draft dated 19.3.2008 for a sum of
Rs.25,350/-, the same may be encashed
or returned to the petitioner and in
case, if it has been encashed by the
Development
Authority,
the
said
amount shall be adjusted towards the
payment
made
by
the
petitioner.
Whatever amount is then found due
from the petitioner, that may be
intimated to the petitioner within 15
days from today and the petitioner be
provided an opportunity to make such
payment within a month thereafter. It is
made
clear
that
the
amount
so
demanded from the petitioner shall be
in terms of the allotment order dated
5.5.2006 and not on the enhanced rate,
which the respondents may now be
charging from the new allottees.

8. Accordingly, the writ petition
stands allowed to the extent indicated
above.

No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2008

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. IInd Bail Application No.
13238 of 2008

Yudhveer @ Bata

...Applicant
Versus.
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra

Counsel for the Respondents:
Sri Mewa Lal Shukla