# Tribhuwan Narayan Singh v. Varanasi Development Authority through and others

- **Citation:** (2001) 2 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tribhuwan-narayan-singh-v-varanasi-development-authority-through-and-others-39728
- **Pages:** 4

## Text

34 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
relief claimed this issue is unnecessary.
Therefore, the point involved in the
present Suit is not involved in the two
earlier instituted Suits. Therefore, the
application for stay of Suit was rightly
rejected.

8. Apart from this the Suit for
ejectment cannot be stayed because the
relief in the Suit filed by the plaintiff is
confined for the period till he is tenant/
licencee
of
the
disputed
premises.
Therefore, the scope of both the Suits is
different.

9. It may also be mentioned that the
application is malafide. The Suit for
eviction was filed, which is pending since
the year 1985 and attempt is being made
to delay the disposal of the Suits in some
way or the other. In earlier Suits on the
basis of which stay has been requested are
of the year 1982. There is no reason as to
why the application for stay of Suit was
moved after the expiry of period of fifteen
years.

I do not find any merit in the
revision.
The
revision
is,
accordingly,
dismissed.
Revision Dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' )(%58$5<
'$7(' $//$+$%$' )(%58$5<
%()25(
%()25(
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( %,12' .80$5 52< -
7+( +21·%/( $. <2* -
7+( +21·%/( $. <2* -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

7ULEKXZDQ 1DUD\DQ 6LQJK
«3HWLWLRQHU
9HUVXV
9DUDQDVL 'HYHORSPHQW $XWKRULW\ WKURXJK
LWV 6HFUHWDU\ DQG RWKHUV
«5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 5DYLQGUD 5DL
&RXQVHO IRU 5HVSRQGHQWV
6KUL 9HG 9\DV 0LVKUD

&RQVWLWXWLRQ
RI
,QGLD
$UWLFOH

±
([HUFLVH RI -XULVGLFWLRQ XQGHU ± 'RFWULQH
RI QRQ ± WUDYHUVH ± $SSOLFDELOLW\
+HOG ± 3DUD
7KH DOOHJDWLRQ RI XQIDLUQHVV IDYRXULWLVP
DQG FROOXVLRQ PDGH E\ WKH SHWLWLRQHU DUH
H[WUHPHO\
VHULRXV
,W
LV
QRW
XQGHUVWDQGDEOH DV WR ZK\ LQ IDYRXU RI
ZLIH
RI
D
SHUVRQ
ZKR
ZDV
LQ
DQ
XQDXWKRULVHG RFFXSDWLRQ RI WKH IODW LQ
TXHVWLRQ
OHDVH
ZDV
H[HFXWHG
E\
5HVSRQGHQW 1RV DQG ZKLFK ZDV
DOUHDG\ DOORWWHG WR WKH SHWLWLRQHU HDUOLHU
ZKR KDG DOVR SDLG D VXP RI 5V
DQG ZDV SUHSDUHG WR SD\ WKH EDODQFH
DPRXQW DV SHU WKH DJUHHPHQW DIWHU LWV
GHOLYHU\ RI SRVVHVVLRQ WR KLP 1R FRXQWHU
KDV EHHQ ILOHG GHVSLWH JUDQW RI UHSHDWHG
RSSRUWXQLWLHV
7KXV
ZH
LQYRNH
WKH
GRFWULQH RQ QRQWUDYHUVH 7KH QHW UHVXOW
LV WKDW ZH KROG WKDW WKH SHWLWLRQHU ZDV
QHYHU GHOLYHUHG SRVVHVVLRQ RI WKH IODW LQ
TXHVWLRQ E\ 5HVSRQGHQW 1RV DQG
ZKR KDG DOVR ZLWKGUDZQ WKHLU VXLW IRU
HYLFWLRQ
RI
5HVSRQGHQW
QR

DQG
SURFHHGHG WR VHWWOH WKH IODW LQ TXHVWLRQ
ZLWK 5HVSRQGHQW 1RV DQG WR UHWXUQ
EDFN
WKH
DPRXQW
GHSRVLWHG
E\
WKH
SHWLWLRQHU DORQJZLWK VXFK LQWHUHVW ZKLFK
5HVSRQGHQW QRV DQG DUH WKHPVHOYHV
FKDUJLQJ IURP VXFK GHIDXOWLQJ SDUWLHV
ZKR KDG HQWHUHG DQ DJUHHPHQW ZLWK
5HVSRQGHQW QRV DQG ZLWKLQ WKUHH
PRQWKV
IURP
WRGD\
:H
RUGHU
DFFRUGLQJO\

By the Court
ORDER

1. The petitioner has come up for
grant of following relief's:-
2All] Tribhuwan Narayan Singh V. Varanasi Development Authority through and others

"(i) Issue writ order or direction in
the nature of writ of mandamus directing
the respondents Varanasi Development
Authority to hand over the possession to
the petitioner of Flat No. L-5/37 Shastri
Nagar, Varanasi I pursuance of lease deed
executed on 15.07.1978 ' And or in
alternative Refund the money deposited
by the petitioner with a arrears compound
interest at the rate of 18% in every quarter
of a year, the rate on which Varanasi
Development
Authority
Charges
in
respect of its higher purchase transaction.

(ii) Issue a writ of certiorari to quash
the document dated 23rd August, 1991
executed by the respondent No. 1 and 2 in
favour of the Smt. Tara Singh w/o Shri
Shitla Prasad."

2. The case of the petitioner in brief
is as follows:-
He entered on 18.08.1978 (copy
appended as Annexure-1) an agreement
with Respondent NO.1 for purchasing one
Lower Income Group Flat constructed by
the latter in Chakla Bagh, now known as
Shastri
Nagar
Development
Scheme,
situated in Mohalla Lallapura of City of
Varanasi. In terms of the agreement he
deposited Rs.18,000/- through Receipt
No.27 (copy appended as Annexure-2). It
was provided in the agreement that the
balance amount shall be deposited by him
after taking possession of Flat No. L-5/37
in question, which was allotted to him. At
that time the cost of the flat was
Rs.24,884.68
Paise
and
Rs.18,000/-
already having been paid, the balance
amount, was payable in instalments after
the delivery of possession. Even though
the building consisting the flat in question
was completed in 1980 the possession of
the flat in question has not been handed
over to the petitioner till date even though
to other allottees possession was given
who are living and enjoying their flats
since 1980. There was no reason for
Respondent Nos. 1 and 2 hand-over
possession of the flat in question to him
even though for that purchase he made
repeated requests orally and in writing.
Only to delay the matter Respondent No.
1 filed a suit for eviction of Respondent
NO. 3 Shitla Prasad Singh before the City
Magistrate,
Varanasi
(the
Prescribed
Authority under section 3 of the U.P.
Public Premises Eviction of Unauthorised
Occupants Act, 1972) on 07.06.1980
(copy
of
the
plaint
appended
as
Annexure-3) who decided the same in
favour of Respondent No. 1 directing him
to vacate the flat in question and handover its possession to Respondent No. 1.
It was reported to the Magistrate that
Respondent No. 3 had vacated the flat in
question and handed over its possession to
Respondent No. 1 vide order dated
16.12.1981 (copy appended as Annexure4).
Respondent
No.3,
however,
challenged the correctness of the order in
appeal filed before the appellate authority.
The appellate authority remanded the case
vide its judgement dated 23rd march, 1982
(coy appended as Annexure-5). The City
Magistrate, Varanasi once again vide his
order dated 23rd August, 1983 (copy
appended as Annexure-6) allowed the
suit. Against this order also Respondent
No. 3 went up in appeal but his appeal
was dismissed for default. The said appeal
after 8 years was restored back by the
District Judge, Varanasi without any
information to the petitioner. As soon as
he made an effort for his impleadment as
a party in order to challenge the order of
restoration Respondent No.1 all of a
sudden withdrew the original case itself
due to connivance with Respondent No. 3
and also executed a Memorandum of
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Lease (copy appended as Annexure-) in
favour of Respondent NO. 4, wife of
Respondent No. 3 without cancelling the
Memorandum of Lease executed in his
favour of Respondent No. 4, wife of
Respondent No. 3 without cancelling the
memorandum of Lease executed in his
favour. The withdrawal and execution of
the document speaks the unfairness of
Respondent No. 1 and its favouritism and
collusion. Despite several requests in
writing vide letter as contained in
Annexures 7 to 13 to the Secretary, Vice
Chairman and the Chairman of the
Authority no result came out and hence
this writ petition.

3. After the issue of notices to
Respondent Nos. 3 and 4 vide dated
06.03.1998 opportunities were granted to
Respondent Nos. 1 and 2 to file their
counter vide order dated 15.01.1999,
15.02.2001 and lastly vide order dated
20.02.2001 but no counter affidavit has
been filed.

4. On 15.02.2001 Respondent Nos.
3 and 4 were deleted by the learned
counsel for the petitioner, therefore, there
cannot by any question of granting relief
No. 2 in the absence of Respondent No. 4
Smt. Tara Singh Prayer No. (ii) is thus
rejected.

The Submissions:-

5. Sri Ravindra Rai, learned counsel
for the petitioner, in the backdrop
aforementioned, contended that the facts
stated
by
the
petitioner
speak
for
themselves, the doctrine of non-traverse
be invoked and Respondent Nos. 1 and 2
be directed to refund a sum of Rs.18,000/-
deposited by the petitioner pursuant to the
agreement alongwith compound interest
at the rate of 18% per quarter per annum,
which
the
Varanasi
Development
Authority charges in respect of its higher
purchase agreements from the defaulting
parties.

6. Sri Ved Vyas Mishra, learned
counsel
appearing
on
behalf
of
Respondent Nos. 1 and 2, very fairly
states that there is nothing on the record to
refute the allegations made by the
petitioner and accordingly this court may
proceed to pass such order which it may
consider expedient in the interest of
justice.

Our Findings:-

7. The allegations of unfairness,
favouritism and collusion made by the
petitioner are extremely serious. It is not
understandable as to why in favour of
wife of a person who was in an
unauthorised occupation of the flat in
question
lease
was
executed
by
Respondent Nos. 1 and 2 which was
already allotted to the petitioner earlier
who had also paid a sum of Rs.18,000/-
and was prepared to pay the balance
amount as per the agreement after its
delivery of possession to him. No Counter
has been filed despite grant of repeated
opportunities.
Thus
we
invoke
the
doctrine of non-traverse. The net result is
that we hold that the petitioner was never
delivered possession of the flat in
question by the Respondent Nos. 1 and 2
who had also withdrawn their suit for
eviction of Respondent No. 3 and
proceeded to settle the flat in question
with Respondent No. 4. Accordingly it
would be in the interest of justice to
command Respondent Nos. 1 and 2 to
return back the amount deposited by the
petitioner alongwith such interest which
2All] Dinesh Kumar Jain V. State of U.P.

Respondent Nos. 1 and 2 are themselves
charging from which defaulting parties
who had entered an agreement with
Respondent Nos. 1 and 2, within three
months
from
today.
We
order
accordingly.

8. Since the petitioner has also been
coerced to move this Court, we are of the
view that he is also entitled to cost of this
proceedings which we in the peculiar
facts and circumstances quantify at
Rs.2,000/- only.

9. This writ petition is disposed of
accordingly.

10. The Office is directed to handover a copy of this order within one week
to Sri Ved Vyas Mishra, learned counsel
for Respondent Nos. 1 and 2, for its
intimation to and flow up action by
Respondent Nos. 1 and 2.
Petition Disposed of.

$33(//$7( -85,6',&7,21
$33(//$7( -85,6',&7,21
&5,0,1$/ 6,'(
&5,0,1$/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 86 75,3$7+, -
7+( +21·%/( 86 75,3$7+, -

&ULPLQDO 0LVF ,,QG %DLO $SSOLFDWLRQ 1R
 RI

'LQHVK .XPDU -DLQ «$SSOLFDQWV,Q -DLO
9HUVXV
6WDWH RI 83
«2SSRVLWH SDUWLHV

&RXQVHO IRU WKH $SSOLFDQWV
6KUL $VKRN .XPDU 0LVKUD
6KUL 5DP 6KLURPDQL 6KXNOD
&RXQVHO IRU 2SSRVLWH SDUWLHV
$*$

&RGH RI &ULPLQDO 3URFHGXUH &RGH
6 ± 6FRSH ± 5LJKW RI $FFXVHG WR
EH
UHOHDVHG
RQ
EDLO
ZKHQ
PD\
EH
H[HUFLVHG
+HOG SDUD DQG
,Q
WKH
LQVWDQW
FDVH
WKH
SRVLWLRQ
LV
GLIIHUHQW $V PHQWLRQHG DERYH ULJKW RI
WKH DSSOLFDQW WR EH UHOHDVHG RQ EDLO
XQGHU 6HFWLRQ &U 3& DFFXUHG RQ

DQG
UHPDLQHG
LQIRUFH
WLOO
 DV WKH SHULRG RI GD\V
H[SLUHG RQ DQG FKDUJH VKHHW
ZDV
VXEPLWWHG
RQ

7KH
DSSOLFDQW DYDLOHG KLV ULJKW WR EH UHOHDVHG
RQ EDLO XQGHU VDLG 6HFWLRQ RQ
E\ PRYLQJ DQ DSSOLFDWLRQ EHIRUH WKH
&KLHI -XGLFLDO 0DJLVWUDWH FRQFHUQHG 1R
GRXEW WKH EDLO DSSOLFDWLRQ EHIRUH WKH
6HVVLRQV -XGJH RQ WKH GLUHFWLRQ RI WKLV
&RXUW ZDV PRYHG PXFK ODWHU EXW LW
FDQQRW EH VDLG WKDW WKH DSSOLFDQW KDG QRW
DYDLOHG KLV ULJKW WR EH UHOHDVHG RQ EDLO
XQGHU 6HFWLRQ &U 3& :KHQ
DFWXDOO\
μDFFXUHG¶
WR
KLP
7KH
REVHUYDWLRQ
RI
WKH
OHDUQHG
6HVVLRQV
-XGJH LQ WKLV UHJDUG LV WKXV HUURQHRXV DV
LW
GHIHDWV
WKH
LQGHIHDVLEOH
ULJKW
RI
DFFXVHG XQGHU 6HFWLRQ &U 3&
,W LV WKHUHIRUH FOHDU IURP WKH UHFRUG DV
ZHOO DV DGPLWWHG SRVLWLRQ WKDW WKH ULJKW
RI WKH DSSOLFDQW WR EH UHOHDVHG RQ EDLO
DFFXUHG
EHWZHHQ

DQG
 DQG WKH DSSOLFDQW DYDLOHG WKH
VDPH
RQ

E\
PRYLQJ
EDLO
DSSOLFDWLRQ EHIRUH WKH LQLWLDO &RXUW LH
&-0
EXW
KLV
EDLO
DSSOLFDWLRQ
ZDV
ZURQJO\ UHMHFWHG 7KXV WKH DSSOLFDQW LV
HQWLWOHG WR EH UHOHDVHG RQ EDLO XQGHU
SURYLVR WR 6HFWLRQ &U 3&
&DVH ODZ 'LVFXVVHG
 $&&
 $&& 6&

By the Court

1. This is second bail application.
The first bail application was disposed of
19.01.2001 with a direction to move fresh