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

- **Citation:** (2011) 1 ILRA 492
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-16
- **Case number:** Civil Misc. Writ Petition No. 21663 of 2011
- **Bench:** Amitava Lala, Sanjay Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-singh-and-others-v-state-of-u-p-and-another-41894
- **Pages:** 7

## Headnote

Constitution
of
India,
Article
226maintainability of writ petition-affidavit
filed by Parokar-and not by Petitioner
without
disclosing
identity
or
connection with Petitioners-when writ
of certionary or mandamus can not be
issued on affidavit of Power of Attorney
holder-writ
filed
by
Pairokar
not
maintainable.

Held: Para 2

Supporting affidavit of the pairokar
speaks that the averments of all the
paragraphs of the writ petition are true
to his personal knowledge. But in
paragraph-7 of the writ petition, where
the allegations are made against the
Chief Minister of the State and the
Chairman of the Noida authority, it
appears to be based on the informations
of
property
dealer/s
even
without
disclosing the identity of such person/s.
No such persons are even made party
respondents. Against this background,
1 All Vikas Singh and others V. State of U.P. and another
493
prima facie writ petition appears to be
unsustainable in nature.

## Text

492 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
sponsored scheme and not otherwise. In
the present case, the provisions of U.P.
Public Moneys (Recovery of Dues) Act,
1972 has not been resorted to by
respondent no. 1 nor recovery has been
initiated under the 1972 Act hence, the
said Full Bench judgment has no
application in the facts of the present
case.

13. In the writ petition, it has also
been alleged that recovery is time barred
under the provisions of the Indian
Limitation Act. Under section 92 of the
U.P. Cooperative Societies Act, 1965,
the time for execution is provided as 12
years. No foundation has been laid down
in the writ petition as to how the issuance
of certificate under section 95-A of U.P.
Cooperative Societies Act is barred by
any law of limitation. Due to above
reason, the above submission has not
been pressed.

14. No ground has been made out
to quash the recovery certificate as well
as citation issued by the Tahsildar for
recovery. The petitioner is not entitled
for any relief. However, as contended by
learned counsel for the respondents,
recovery can be effected by any means
other than auction of the mortgaged land
of the petitioner, which is less than 3.125
acre.

15. Subject to above, the writ
petition is dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2011

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISHRA, J.

Civil Misc. Writ Petition No. 21663 of 2011

Vikas Singh and others ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri R.N.Singh
Sri G.K. Singh
Sri V.K.Singh

Counsel for the Respondents:
Sri M.C. Chaturvedi (C.S.C.)
Sri Ramanand Pandey (S.C.)
Sri Ravindra Kumar
Sri Ramendra Pratap Singh

Constitution
of
India,
Article
226maintainability of writ petition-affidavit
filed by Parokar-and not by Petitioner
without
disclosing
identity
or
connection with Petitioners-when writ
of certionary or mandamus can not be
issued on affidavit of Power of Attorney
holder-writ
filed
by
Pairokar
not
maintainable.

Held: Para 2

Supporting affidavit of the pairokar
speaks that the averments of all the
paragraphs of the writ petition are true
to his personal knowledge. But in
paragraph-7 of the writ petition, where
the allegations are made against the
Chief Minister of the State and the
Chairman of the Noida authority, it
appears to be based on the informations
of
property
dealer/s
even
without
disclosing the identity of such person/s.
No such persons are even made party
respondents. Against this background,
1 All Vikas Singh and others V. State of U.P. and another
493
prima facie writ petition appears to be
unsustainable in nature.

(Delivered by Hon'ble Amitava Lala, J.)

1. Amitava Lala, J.-- Out of four
petitioners, three are individuals and the
other one is a company through one Dr.
Harsh Mahajan claiming to be its
Managing
Director
without
any
supporting affidavit of competency. The
whole writ petition is not filed by any of
the
petitioners
but
with
supporting
affidavit of one Naunidh Singh Arora,
aged about 25 years, son of Sri M.S.
Arora, B-47, Sarvodaya Enclave, New
Delhi-17 claiming himself to be pairokar
of the petitioners, however, without
disclosing
any
connection
between
himself and the petitioners. Cloud can not
be dispelled from the mind of the Court
about the questionable identity of the
deponent. Moreover, this Court has
already held that even a power of attorney
holder has no right to get an order in the
nature of writ of certiorari or mandamus,
in 2010 (3) ADJ 319 (DB) (Vice
Admiral, Rustam Khusro Shapoor Ji
Gandhi and others Vs. State of U.P.
and others). The relevant part of such
judgement is quoted hereunder:

".......In any event, a further question
can arise before this Court whether a writ
of Certiorari or Mandamus can be issued
in favour of the Power of Attorney holder,
on which there is a direct judgement of
this Court being in Dr. Prabhu Nath
Prasad Gupta v. State of U.P. and others,
2003 (4) AWC 3010, which has held that
the writ petition by Power of Attorney
holder of the petitioner seeking relief in
the nature of writ of Certiorari for
aggrieved person is not maintainable. The
only exception is in respect of writ of
Habeas Corpus and writ of Quo Warranto.
We have also verified such ratio in the
Division Bench judgment of this Court to
which one of us (Amitava Lala, J.) was a
Member in Bharat Petroleum Corporation
limited, Mumbai v. M/s Amar Auto and
others, 2008 (5) ADJ 584 (DB), wherein a
distinguishing
feature
arose
about
maintainability of suit and writ petition by
the Power of Attorney holder. It was held
therein that as because a plaint or written
statement in any suit or memorandum of
appeal in any civil appeal are supported
by verification, there is a chance to
examine authenticity of the person
claiming to be the Power of Attorney
holder. But neither such mechanism is
available to the writ petitioners nor it is
based on any verification for further
scrutiny. It is based on personal affidavit.
It has also been confirmed by further
Division Bench presided by one of us
(Amitava Lala, J.) in C.M.W.P. No.
44007 of 1998 along with other two
matters (Smt. Gurmeet Kaur Kwatra v.
Vice-Chairman, Varanasi Development
Authority
Varanasi
and
others)
by
extending the bar up to scope of writ of
Mandamus and Prohibition along with
writ of Certiorari."

2. Supporting affidavit of the
pairokar speaks that the averments of all
the paragraphs of the writ petition are true
to his personal knowledge. But in
paragraph-7 of the writ petition, where the
allegations are made against the Chief
Minister of the State and the Chairman of
the Noida authority, it appears to be based
on the informations of property dealer/s
even without disclosing the identity of
such person/s. No such persons are even
made party respondents. Against this
background, prima facie writ petition
appears to be unsustainable in nature.
494 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

3. For the purpose of better
understanding, paragraph-7 of the writ
petition is quoted below:

"7. That on 1.10.2010 the Petitioner
No.1 wrote letter to the Chairman,
NOIDA Authority informing him the fact
that the property dealers in NOIDA had
informed
the
Petitioner
No.1
that
allotment is being done only in such cases
where bribe money to the tune of Rs.5.50
crores per farm house of 10,000 sq. mtrs
was paid to Ms. Mayawati. The Petitioner
No.1 when queried the property dealer as
to how a bona fide eligible applicant
could be debarred from allotment, was
informed that the form has been made so
elaborate and with so many Annexures
and with so many counter signing of
Chartered
Accounts
and
Chartered
Engineers and with project report etc.
and
further
the
allotment
process
envisaged screening of the application
forms and an interview by a selection
committee only for the purpose of
granting
discretion
to
the
NOIDA
authority to reject the application so that
only such of those applications would be
cleared who pay the bribe money. The
Petitioner No.1 also brought out in his
letter the fact that the application form as
advised by the property dealers has been
made in such a manner that firstly, very
few people could be able to fill up the
form
because
of
the
technicalities
involved in the same and secondly, along
with the form there were so many
documents to be annexed signed by the
chartered accounts or by chartered
engineers which also very few people
would be able to arrange and thirdly a
project report for the farm house
construction of the farm house, income
tax returns and the balance sheets had
also been asked thereby increasing the
subjectivity
of
the
plot
allotment
committee in selecting or rejecting an
application. It was also pointed out in that
letter that the farm house was being sold
below the market price and hence there
were ample scope for bribe to be asked in
the allotment. The Petitioners accordingly
vide his letter requested for criteria to be
followed by the plot allotment committee
in the matter of allotment of plot and as to
what weightage was to be given for the
interview in such allotments. These details
were asked at the earliest to enable the
Petitioners to properly fill up the forms.
True copy of letter dated 1st October,
2010 is annexed herewith and marked as
Annexure No.1 to this writ petition."

4. Apart from that, from the facts of
the case it appears to us that the
petitioners are socially well established
and/or financially affluent, who inclined
to get allotment of plots of land for farm
house in the open green space of Noida
under the scheme known as "Open-Ended
Scheme For Development of Farm House
on
Agricultural
Land-2010".
The
petitioners, being signatories therein, have
agreed to fulfil the terms and conditions
prescribed in the application for allotment
of such plots. Bottom of such application
comprises clause of declaration, which is
as follows:

"DECLARATION
BY
THE
APPLICANT

I/We
hereby
declare
that
the
information, submitted with application
form, are true to the best of our
knowledge. Nothing has been concealed
and no part of it is false. I/We further
declare that we have carefully read and
understood the terms and conditions for
allotment of farmhouse plot and do
1 All Vikas Singh and others V. State of U.P. and another
495
hereby abide by the same. Each page of
the terms & conditions has been signed.
I/We are aware, if allotment is obtained
on the basis of false information, the
NOIDA may cancel our allotment at any
stage and forfeit all the deposits made by
me/us."

5. However, the petitioners want to
get lands as per their choice upon
payment of 10% extra premium.

6. So far as question of allotment as
per the choice upon payment of 10% extra
premium is concerned, learned Counsel
appearing for the Noida authority has
contended that there is no such scope
under the scheme and/or the terms and
conditions for allotment, therefore, the
petitioners can not be permitted to do so.
The reliefs as claimed in the writ petition
are as follows:

"i. Call for the record relating to the
allotments being made by the Noida
authority and further to direct the
allotment of plots in favour of Petitioner
No.2 and Petitioner Nos. 3 and 4 as
clearly their applications were complete
and were eligible in all respects and the
Noida authority had no justification to
either keep their applications pending or
to reject them while at the same time
making allotments to other persons whose
standing would be far inferior to the
standing of the petitioner No.2 and
Petitioners No.3 and 4 in the matter of
allotment of plots for development of the
farm house.

ii. Call for the records of the
Respondents and direct the respondents to
allot plots to Petitioner Nos. 1,2 and
Petitioner No.3 and 4 as per their choice
as the Petitioners have already undertaken
to pay 10% extra premium for exercising
the said choice.

iii. Or in the alternative direct that
the allotments of farm house made in the
last two years by the NOIDA authority be
cancelled and all the plots be put on
auction so that the petitioners could
participate in the same and bid for the plot
of their own choice.

iv. To stay any further allotment of
farm house or in the alternative reserve
three farm houses contiguous to each
other for the petitioners.

v. Direct the Noida authority to place
on record the deliberations of the Plot
Allotment
Committee,
the
criteria
followed by them in the matter of
allotment and as to how the persons
allotted were better than the petitioner
No.2 and Petitioners No.3 and 4 so as to
deny the petitioners an allotment while at
the same time make allotment to others.

vi. Any other writ, order or direction
as this Hon'ble Court may deem fit and
proper in the facts and circumstances of
the case to meet the ends of justice.

vii. Award the cost of the petition to
the petitioners."

7. Learned Counsel appearing for
the Noida authority has further contended
before us that after participation in the
proceedings for selection with regard to
allotment of land, the petitioners can not
turn around and say that they will not go
by the terms and conditions mentioned in
the application but they will go on the
basis of their choice of land on payment
of 10% extra premium when no such
condition is available in the scheme.
496 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Function and power of the authority in
respect of the transfer of land has been
provided under Section 6 of the U.P.
Industrial Area Development Act, 1976,
which is quoted hereunder:-

"6. Functions of the Authority- (1)
The object of the Authority shall be to
secure the planned development of the
industrial development areas.

(2) Without prejudice to the generality
of the objects of the Authority, the Authority
shall perform the following functions-

(a) to acquire land in the industrial
development area, by agreement or through
proceedings under the Land Acquisition
Act, 1894 for the purpose of this Act;

(b) to prepare a plan for the
development of the industrial development
area;

(c) to demarcate and develop sites for
industrial, commercial and residential
purpose according to the plan;

(d) to provide infra-structure for
industrial, commercial and residential
purposes;

(e) to provide amenities;

(f) to allocate and transfer either by
way of sale or lease or otherwise plots of
land
for
industrial,
commercial
or
residential purposes;

(g) to regulate the erection of buildings
and setting up of industries; and

(h) to lay down the purpose for which
a particular site or plot of land shall be
used, namely for industrial or commercial
or residential purpose or any other
specified purpose in such area."

8. There is no challenge as to the
vires of such Act nor one can challenge
the same after participating in the
selection process on the basis of the terms
and
conditions
mentioned
in
the
development scheme, taking any fictitious
plea.

9. It further appears that the writ
petition is bad for misjoinder of necessary
parties. The petitioner no. 1 has already
got allotment of land for farm house when
the claims of the petitioner nos. 2, 3 and 4
are under consideration, as specifically
contended
by
the
learned
counsel
appearing
for
the
Noida
authority.
Therefore, the claims of the petitioner no.
1 and the petitioner nos. 2, 3 and 4 are
diagonally opposite. Petitioner no. 1
wants to get the alternative plot since,
according to him, the allotment has been
made to him at a far away place and hightension line has been fixed over and
above
such
land,
when
the
other
petitioners are yet to get the allotment of
land.

10. Against this background, learned
Counsel appearing for the Noida authority
has produced before this Court the map of
the locale, from which we find that no
high-tension line has been shown as
proceeding over the land allotted to
petitioner no. 1. Copy of such map is
directed to be kept with the record.

11. Therefore, when the writ petition
is made at a stage when allotment has
been made to one and allotment is under
consideration with regard to others, such
writ
petition
will
be
declared
as
infructuous for the petitioner no. 1 and
1 All Vikas Singh and others V. State of U.P. and another
497
premature for the rest. There is limited
scope of judicial scrutiny in the writ
jurisdiction of this Court in respect of
such type of disputes. Learned Counsel
appearing for the Noida has relied upon
paragraphs 9 and 12 of the judgement
reported in (2004) 4 SCC 19 (Directorate
of Education and Others Vs. Educomp
Datamatics Ltd. And Others), wherein
the Supreme Court held as under:

" 9. It is well settled now that the
courts can scrutinise the award of the
contracts by the Government or its
agencies in exercise of their powers of
judicial review to prevent arbitrariness or
favouritism. However, there are inherent
limitations in the exercise of the power of
judicial review in such matters. The point
as to the extent of judicial review
permissible in contractual matters while
inviting bids by issuing tenders has been
examined in depth by this Court in Tata
Cellular v. Union of India [(1994) 6
SCC 651]. After examining the entire
case-law the following principles have
been deduced: (SCC pp.687-88, para 94)

"94. The principles deducible from
the above are:

(1) The modern trend points to
judicial restraint in administrative action.

(2) The court does not sit as a court
of appeal but merely reviews the manner
in which the decision was made.

(3) The court does not have the
expertise to correct the administrative
decision. If a review of the administrative
decision
is
permitted
it
will
be
substituting its own decision, without the
necessary expertise which itself may be
fallible.

(4) The terms of the invitation to
tender cannot be open to judicial scrutiny
because the invitation to tender is in the
realm of contract. Normally speaking, the
decision to accept the tender or award the
contract is reached by process of
negotiations through several tiers. More
often than not, such decisions are made
qualitatively by experts.

(5) The Government must have
freedom of contract. In other words, a fair
play in the joints is a necessary
concomitant for an administrative body
functioning in an administrative sphere or
quashi administrative sphere. However,
the decision must not only be tested by the
application of Wednesbury principle of
reasonableness (including its other facts
pointed out above) but must be free from
arbitrariness not affected by bias or
actuated by mala fides.

(6) Quashing decisions may impose
heavy administrative burden on the
administration and lead to increased and
unbudgeted expenditure."

"12. ............. The courts cannot
strike down the terms of the tender
prescribed by the Government because it
feels that some other terms in the tender
would have been fair, wiser or logical.
The courts can interfere only if the policy
decision is arbitrary, discriminatory or
mala fide."

(emphasis supplied)

12. We also find that ratio of such
judgement has been followed by a
Division Bench of this Court in the
judgement reported in 2009 (9) ADJ 603
(DB) (Air Force Naval Housing Board,
498 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
New Delhi and Others Vs. State of U.P.
& Others).

13. Learned Chief Standing Counsel
has contended that the allegations as made
against the Chief Minister of the State and
the Chairman of the Noida authority are
very
wild
without
any
foundation
whatsoever, therefore, such type of
comments not only be deprecated but
exorbitant cost will be imposed.

14. In totality, we are of the view
that the writ petition is misconceived in
nature and can not be admitted for any of
the grounds discussed above. Therefore,
on contest, we are of the firm view that
the writ petition can not be admitted.
Hence, it is dismissed at the stage of
admission, however, without imposing
any cost.

15. With a caution, we are of the
view that if the petitioners are really
serious about the charges, as levelled
against some of the important authorities
of the State without making them party
respondents herein, it is open for them to
make specific complaint with materials
before the appropriate agency for the
purpose of enquiry or investigation.
---------