U.P. HOUSING & DEVELOPMENT BOARD & ANRversusNAMIT SHARMA

                          [2021] 4 S.C.R. 397                            397


      U.P. HOUSING & DEVELOPMENT BOARD & ANR.                            A
                                  v.
                         NAMIT SHARMA
                   (Civil Appeal No. 4020 of 2010)
                       FEBRUARY 03, 2021                                 B
    [ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
       Uttar Pradesh Awas Evam Vikas Parishad Bhukhando Tatha
Bhavano Ke Panjikaran Evam Pradeshan – r.47 – In 1982,
respondent’s grandfather got himself registered in a scheme for an
                                                                         C
HIG plot in appellant’s Housing Scheme – Before his death, he
nominated respondent as his nominee – In 1997, respondent sought
transfer of the registration in his name and for allotment of an HIG
plot – Request refused by Housing Commissioner – Writ petition
filed by respondent – Division Bench directed allotment of a plot to
the respondent against his grandfather’s registration – On appeal,       D
held: Respondent’s grandfather only got himself registered which
made him eligible to participate in the process of allotment – Nothing
on record indicates that at any point of time any allotment of plot
was made in his favour – Mere registration in the name of
respondent’s late grandfather which registration also came to an
                                                                         E
end after Government order dtd. 11.10.02 which made all the old
registrations ineffective permitting applicants to get refund, there
was no right left in the respondent to claim even registration much
less an allotment – Endorsement dtd. 31.12.04 relied on to contend
that there is an order passed by the Commissioner in exercise of
power u/r.47 in respondent’s favour, is not an order passed by the       F
Commissioner but only a recommendation made by an official person
– Further, respondent’s prayer to allot Plot No.1/41 is malafide as
the same was allotted to his father – High Court did not give any
cogent reason as to on what basis direction was issued to allot a
plot to the respondent – Mere statement of the counsel for the Board
                                                                         G
that 19 plots are vacant cannot be utilized for issuing such direction
when otherwise respondent had no right for allotment – High Court
erred in issuing the direction to allot a plot to the respondent –
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 – s.95(1)
– Housing.
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                                 397
398            SUPREME COURT REPORTS                          [2021] 4 S.C.R.


A          Uttar Pradesh Awas Evam Vikas Parishad Bhukhando Tatha
      Bhavano Ke Panjikaran Evam Pradeshan – r.47 – Power of Housing
      Commissioner – Discussed.
             CIVIL APPELLATE JURISDICTION: Civil Appeal No.4020 of
      2010
B            From the Judgment and Order dated 07.07.2009 of the High Court
      of Allahabad, Lucknow Bench, Lucknow in Writ Petition No.3315 (M/
      B) of 2005.
            Vishwajit Singh, Pankaj Singh, Ms. Ridhima Singh, Ms. Vijaya
      Singh, Sushmit Chauhan, Advs. for the Appellants.
C          Dr. Manish Singhvi, Sr. Adv., Prashant Kumar, Advs. for the
      Respondent.
             The following Order of the Court was passed:
                                      ORDER
D            Heard Shri Vishwajit Singh, learned counsel appearing for the
      appellants and Dr. Manish Singhvi, learned senior counsel appearing for
      the respondent.
             This appeal has been filed against the order dated 07.07.2009 of
      the Division Bench of the Allahabad High Court, Lucknow Bench in
      Writ Petition No.3315(M/B) of 2005, by which order the writ petition
E
      filed by the respondent has been disposed of with a direction to opposite
      party to the writ petition to allot one plot to the respondent against the
      Registration No.L.W/P-2951(6). Appellant aggrieved by the said
      judgment has come up in this appeal.
             The brief facts necessary to be noticed for deciding this appeal
F     are:
             One Shri M.L. Sharma, the grandfather of the respondent got
      registration in his name in a scheme for HIG plot in the Housing Scheme
      of the appellant. On 16.09.1982 his application was registered with
      Registration No.L.W./P-2951(6). Shri M.L. Sharma wrote a letter to
G     the appellant on 15.09.1983 that he has nominated his grandson i.e.
      respondent as his nominee and his mother Smt. Sudha Sharma as his
      guardian till he attains majority. Shri M.L. Sharma died on 09.06.1984.
      The Parishad sent a letter to Shri M.L. Sharma to deposit an additional
      amount of Rs.3,000/- as registration money due to escalation in price.
      However, pursuant to aforesaid request no additional amount was
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     U.P. HOUSING & DEVELOPMENT BOARD & ANR. v.                                 399
                    NAMIT SHARMA

deposited rather Smt. Sudha Sharma wrote a letter to Parishad to refund         A
the entire registration amount. Parishad wrote a letter on 22.08.1988 to
Smt. Sudha Sharma to send the requisite documents i.e. Death Certificate
etc. to complete the formalities necessary for obtaining a refund of the
registration amount. The respondent wrote a letter dated 26.08.1997 to
the Parishad requesting Parishad to transfer the Registration No.L.W./
                                                                                B
P-2951 from his grandfather’s name to his name and allot him a H.I.G.
plot in the Housing Scheme. The father of the respondent Dr. N.N.
Sharma had also applied in the Housing Scheme and was allotted a plot.
A Government order dated 11.10.2002 was issued providing guidelines
for refund of registration money of unsuccessful applicants under various
housing schemes of the State. In the Government order it was further            C
directed that old registration of unsuccessful candidates would not be
renewed under any circumstances and the unsuccessful candidates would
have to apply afresh for registration. In compliance of the Government
order dated 11.10.2002, the Parishad has also issued an advertisement
in the newspaper dated 14.03.2003 to that effect and letter dated
                                                                                D
14.09.2004 was also issued to the respondent regarding deposited amount
against Registration No.L.W./P-2951(6). The respondent was
communicated that registration is not valid and after completing the
formalities mentioned therein he may seek refund of registration amount.
The respondent wrote a letter dated 31.12.2004 wherein he reiterated
his request for transfer of registration in his name and allot a plot. In the   E
letter respondent mentioned that House No.1/41, Vikas Nagar is lying
vacant and the said house should be allotted to him against the registration
of his grandfather. A recommendation was also made on the letter dated
31.12.2004.
        On 18.03.2005, the Housing Commissioner refused to accept the           F
request of respondent-Namit Sharma to transfer the registration of his
grandfather Shri M.L. Sharma in his name. On 21.05.2005 another letter
was issued by the office of the Parishad to the respondent informing
that by virtue of Government order dated 11.10.2002 the registration in
the name of his grandfather Shri M.L. Sharma is not there, hence, it is
not possible to make any allotment of plot. It was further communicated         G
that amount deposited can be taken back and respondent was intimated
that if you are interested in getting any property of the Parishad, you can
participate in the allotment process against specific property published
from time to time after depositing required token money against the said
property.                                                                       H
400             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A            The respondent filed a Writ Petition No.3315/2005 praying for
      quashing the order dated 18.03.2005 of the Housing Commissioner and
      issue a writ order in the nature of mandamus commanding the respondent
      to consider and allot a vacant plot after transferring the registration in
      the respondent’s name. The Writ Petition No.3315/2005 filed by
      respondent was disposed of by the High Court by the impugned order
B
      against which this appeal has been filed. The operative portion of the
      High Court’s order is as follows:
            “We, therefore, dispose of the writ petition with a direction to the
            opposite parties to allot one plot to the petitioner against the
            Registration No.L.W./P-2951(6) within six weeks from the date
C           a certified copy of this order is produced after completing the
            required formalities by the petitioner.
              Shri Vishwajit Singh, learned counsel appearing for the appellants/
      Parishad submits that the High Court committed error in directing
      allotment of plot to the respondent. Neither the registration, which was
D     initially in the name of respondent’s grandfather, was valid nor there
      was any registration in favour of the respondent or any allotment of plot
      in favour of respondent or his grandfather so as to give any right to claim
      allotment. It is submitted that the respondent was communicated that
      registration is not valid and by virtue of Government order dated
E     11.10.2002 all old registrations were made ineffective permitting the
      applicants to get refund as per the procedure prescribed. It is submitted
      that respondent was communicated more than once that the registration
      of his grandfather is now no longer valid and he can obtain the refund of
      the deposited amount and may apply afresh registration and participate
      in the process of allotment. Neither the respondent ever get registered
F     afresh nor participated in the process of allotment. The High Court
      committed error in directing for allotment in favour of the respondent to
      whom neither the Parishad ever allotted any plot nor any right was claimed
      by the respondent for allotment. It is submitted that the allotment of plots
      in the scheme, in which the respondent was claiming, were all by draw
G     of lots and the respondent’s grandfather was never alloted any plot at
      any point of time. It has also been submitted that one HIG house was
      alloted to the father of the respondent, namely, Dr. N.N. Sharma, the
      request of transfer the allotment with another plot did not materialize as
      he did not fulfill the certain conditions mentioned in the letter permitting
      transfer. The plot No.1/41 stood alloted to the father of the respondent,
H     who had been handed possession.
     U.P. HOUSING & DEVELOPMENT BOARD & ANR. v.                                401
                    NAMIT SHARMA

       Dr. Manish Singhvi, learned senior counsel appearing for the            A
respondent, refuting the submissions of learned counsel for the Parishad
contends that firstly the order passed by the High Court was on the
basis of consent given by the appellant to allot a plot to adjust against 19
plots which were vacant hence the appellant was precluded from
challenging the order of the High Court. He further submits that in favour
                                                                               B
of the respondent there was already allotment by the Housing
Commissioner in exercise of power under Rule 48 which order was
passed on the application of respondent on 31.12.2004. He submits that
the Housing Commissioner has power, in special circumstances, to pass
any order and in exercise of power order was passed on 31.12.2004,
hence, the High Court’s order does not suffer from any error.                  C
       We have considered the submissions of learned counsel for the
parties and perused the record.
       From the facts which have been brought on the record there is no
dispute that initially the grandfather of the respondent Shri M.L. Sharma
deposited an amount of Rs.2000/- as registration money and he was              D
allotted a registration bearing Registration No.L.W./P-2951(6) on
16.09.1982. Before the death of Shri M.L. Sharma he wrote a letter to
the Parishad nominating his grandson i.e. respondent for his registration.
There is material on record to indicate that after the death of Shri M.L.
Sharma further additional amount towards registration as demanded was          E
paid. The Parishad wrote a letter to the mother of the respondent to
send requisite documents for obtaining refund. The State Government
has issued Government order on 11.10.2002 under which State
Government issued guidelines for refund of registration money of
unsuccessful applicants. The copy of the Government order has been
brought on the record as Annexure P-7.                                         F

        Paragraphs 2 and 3 of the Government order are relevant which
are to the following effect:
      “2. I have been directed to inform you that with a view to make
      the aforesaid arrangement more transparent, it has been decided          G
      after due consideration that the registration money of the
      unsuccessful candidates must be returned to their Bank account
      through account payee cheque/bank draft or other prevalent
      procedures within 15 days from the date of lottery draw by all the
      Development Authorities and the Avas Vikas Parishad. In case
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402             SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A           of non-refund of the registration money within 15 days, the interest
            payable on the refundable amount would be recovered from the
            salary of the officer/employee responsible for the delay. The
            concerned officer/employee would be held fully responsible for
            the delay in refund.
B           3. In this connection, it has also been decided that the unsuccessful
            candidate will have to be applied open for a new scheme and the
            old registration of such unsuccessful candidates would not be
            renewed under any circumstances.”
             After the aforesaid Government order, communication was also
C     issued to the respondent on 14.09.2004 informing that Registration
      No.L.W/P-2951(6) was not valid and therefore cannot be transferred to
      him. The respondent was requested to complete the formalities for refund
      of the deposited amount towards registration. The another order which
      has been brought on the record by the appellant is the letter dated
      21.05.2005 issued by the Estate Officer where respondent was again
D     informed that the Registration No.LW/P-2951(6) of your grandfather is
      not valid registration and it is not possible to transfer the registration in
      the name of respondent. The writ petition was filed thereafter by the
      respondent being Writ Petition No.3315/2005.
             There is nothing on record to indicate that at any point of time any
E     allotment of plot was made in favour of Shri M.L. Sharma, the
      grandfather of the respondent. Only Shri M.L. Sharma got himself
      registered on 16.09.1982 with Registration No.L.W./P-2951(6) which
      made him eligible to participate in the process of allotment. Learned
      counsel for the appellant has submitted that the allotment was made
F     only by draw of lots. Paragraphs 2 and 3 of the Government order dated
      11.10.2002, already extracted above, also indicate the draw of lots for
      allotment. There being no draw of lots in favour of Shri M.L. Sharma,
      the grandfather of the respondent, there is no question of allotment of
      any plot to the respondent.

G             Now we come to the submission of Dr. Manish Singhvi that the
      order of the High Court is based on the consent of the appellant, hence
      appeal should not be entertained. It is true that the High Court has noticed
      the following submissions of learned counsel appearing for the respondent
      in the writ petition:

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     U.P. HOUSING & DEVELOPMENT BOARD & ANR. v.                                403
                    NAMIT SHARMA

      “Learned counsel for the opposite parties on the basis of the            A
      instruction submits that 19 plots of different sizes are available for
      allotment in Sector 11 of the Vikas Nagar Extension Scheme of
      U.P. Awas Evam Vikas Parishad and the petitioner can be adjusted
      against the 19 plots which are available.”
        The aforesaid statement was that plots are available and on which      B
the respondent can be adjusted but the fact of availability of the plot
does not give any entitlement to a person who has no right to claim
allotment. Any allotment has to be made in accordance with the procedure
prescribed and the Rules of the Parishad. No allotment can be given in
the facts of present case to the respondent when he never participated
in the process of allotment nor there was any allotment in his father or in    C
favour of his grandfather. The above statement cannot be read to mean
that the respondent consented for allowing the writ petition. The High
Court after noticing the aforesaid statement of the counsel proceeded to
examine the claim of the writ petitioner on merits which consideration is
to the following effect:                                                       D
      “It is admitted case of the parties that the grandfather of the
      petitioner Late Sri M.L. Sharma was registered with the U.P.
      Awas Evam Vikas Parishad having the Registration No.L.W./P-
      2951(6) for the allotment of an HIG plot in the Ram Sagar Mishra
      Colony nor know as Indira Nagar Colony, Lucknow. On 15.9.1983            E
      Sir M.L. Sharma nominated his grandson i.e. the petitioner as his
      nominee against the said registration who on attaining the age of
      majority submitted an application before the opposite parties for
      transfer of the Registration No.L.W./P-2951(6) in his favour. The
      petitioner has also annexed the copies of the order passed on
      25.5.1999 and 31.12.2004 on the application moved by the                 F
      petitioner. The opposite parties have placed before us the
      communication dated 3.5.2009 which revels that 19 plots of
      different sizes are available for allotment in Vikas Nagar Vistar
      Yojna, Lucknow.”
      The High Court in the above conclusion has noted the application         G
moved by the respondent dated 31.12.2004, on which application the
order passed therein Dr. Manish Singhvi, appearing for the respondent,
has made much emphasis. The application filed by the respondent dated
31.12.2004 has been brought on the record in which application
respondent made following prayers:                                             H
404            SUPREME COURT REPORTS                            [2021] 4 S.C.R.


A           “In the prevailing circumstances I once again request your goodself
            to transfer the registration number cited above from my
            grandfather’s name to my name in the light of letter dated
            September 15, 1983, which stands received in the Housing Board
            and to allot house/plot to me at the earliest possible. It is to bring
            to your kind notice that House No.1/41, Vikas Nagar, Lucknow is
B
            lying vacant and the said house be considered to be allotted to
            me.
            Dated 31.12.2004
                                                               Yours faithfully
C                                                                 Sd/- illegible
                                                              (Namit Sharma)
                                                     B-1/14, Sector-Q, Aliganj,
                                                     Lucknow 226 024 (U.P.)”
             On the said application there is an endorsement to the following
D     effect:
            “By hand:
            Joint Housing Commissioner (Lucknow)
            While using the powers conferred under Rule 48, the request made
E           in para (a) may please be accepted under special circumstances.
                                                                    Sd/- Illegible
                                                                     31.12.2004"
             Dr. Manish Singhvi has taken pains to contend that the above
      order dated 31.12.2004 is the order passed by the Housing Commissioner
F
      in exercise of power under Rule 48 where Commissioner has power to
      pass any order. Learned counsel for the respondent submits that the
      correct Rule is Rule 47 of the Uttar Pradesh Awas Evam Vikas Parishad
      Bhukhando Tatha Bhavano Ke Panjikaran Evam Pradeshan Sambandhi
      Viniyam, 1979 where regulation framed under Section 95(1) of the Uttar
G     Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. The Rule 47
      provide that notwithstanding anything in the regulation in special
      circumstance, in the interest of the Board, Housing Commissioner is
      empowered to take any decision including he shall have right to change
      the allotment process and process for payment. There can be no dispute
      to the right of the Housing Commissioner given by Rule 47 as noted
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     U.P. HOUSING & DEVELOPMENT BOARD & ANR. v.                                    405
                    NAMIT SHARMA

above. However, the endorsement dated 31.12.2004 on which Dr. Manish               A
Singhvi has placed much reliance is not an order passed by the Housing
Commissioner but only a recommendation made by some official person
to Joint Housing Commissioner, Lucknow. The recommendation was
also on the application of the respondent which was of the same date.
The submission is completely misconceived without any merit that there
                                                                                   B
is an order passed by the Commissioner in favour of the respondent in
exercise of power under Rule 47. We may notice one more fact which
is relevant. In his appliation dated 31.12.2004 the respondent has made
a prayer to allot plot No.1/41 to him which plot was already allotted to
his father Dr. N.N. Sharma who was also given possession of the plot
on 06.10.2003. Dr. N.N. Sharma made a request to change his plot 1/41              C
to plot 1/171 which was approved with some conditions on 15.05.2004,
which conditions were never complied. Plot No.1/41 having been allotted
to father of respondent, his prayer to allot plot No.1/41 was malafide
and incorrect. After the aforesaid application dated 31.12.2004 and
recommendation made therein letter was issued to the respondent on
                                                                                   D
21.05.2005 where it was mentioned that the registration is not valid and
there is no question of transfer of registration in favour of the respondent
and if he is interested he may participate in the allotment process.
        We, thus, find no substance in the submission of Dr. Manish
Singhvi that there was an order passed by Housing Commissioner allotting
plot in favour of the respondent. It is further to be noticed that for allotment   E
of any plot of Housing Board there is a process which all applicants
have to follow. As contended by counsel for the Parishad allotments
were made by draw of lots of all eligible registered applicants. It is not a
case of the respondent that at any point of time any draw of lot was
made in which respondent’s grandfather was declared successful. Mere               F
registration in the name of Late grandfather of the respondent which
registration also came to an end after issuance of the Government order
dated 11.10.2002 there was no right left in the respondent to claim even
registration but to say of allotment of a plot. The Parishad having
communicated the respondent time and again to apply for refund of the
amount which was deposited at the time of registration by his grandfather.         G

       The High Court has not given any cogent reason as to on what
basis direction was issued to allot one plot to the respondent. The mere
statement of the counsel for the Board that 19 plots are vacant cannot
be utilized for issuance of direction for plot to respondent who has
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406             SUPREME COURT REPORTS                           [2021] 4 S.C.R.


A     otherwise no right for allotment. Allotment of plot to respondent in such
      a manner would have deprived the other applicants who must be awaiting
      for allotment of property or who must be eligible for allotment of property.
      We, thus, are of the considered opinion that the High Court committed
      error in issuing the direction to allot a plot to the respondent.
B            In view of the above, we allow the appeal and set aside the order
      of the High Court dated 07.07.2009 and dismiss the writ petition filed by
      the respondent.

      Divya Pandey                                                  Appeal allowed.
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