Krishan Lal Gupta and Others Vs. Adhishashi Adhikari and Others
EmailAppeal: Civil Appeals Nos. 7838-7840, 7842 and 7841 of 1997
(Arising out of SLPs (C) Nos. 24030 of 1996, 525, 563, 3026 and 4286 of 1997)
(Arising out of SLPs (C) Nos. 24030 of 1996, 525, 563, 3026 and 4286 of 1997)
Petitioner: Krishan Lal Gupta and Others
Respondent: Adhishashi Adhikari and Others
Apeal: Civil Appeals Nos. 7838-7840, 7842 and 7841 of 1997
(Arising out of SLPs (C) Nos. 24030 of 1996, 525, 563, 3026 and 4286 of 1997)
(Arising out of SLPs (C) Nos. 24030 of 1996, 525, 563, 3026 and 4286 of 1997)
Judges: M.M. PUNCHHI & M. SRINIVASAN, JJ.
Date of Judgment: Nov 20, 1997
Head Note:
CONSTITUTION
Article 226 – Writ petition against order of cancellation of allotments of flats built by Municipal Corporation – High Court entering into wide questions validity of allotment, fraud in obtaining allotments and competence of officer to allot etc. Held that High Court could not have pre-judged the case of allottees and the matter could not be determined in proceedings under Article 226. A right remedy was civil suit. Writ petitions allowed to be withdrawn with liberty do approach Civil Court. Meanwhile possession to be restored and protected for 6 months. (Para 3)
Article 226 – Writ petition against order of cancellation of allotments of flats built by Municipal Corporation – High Court entering into wide questions validity of allotment, fraud in obtaining allotments and competence of officer to allot etc. Held that High Court could not have pre-judged the case of allottees and the matter could not be determined in proceedings under Article 226. A right remedy was civil suit. Writ petitions allowed to be withdrawn with liberty do approach Civil Court. Meanwhile possession to be restored and protected for 6 months. (Para 3)
JUDGEMENT:
ORDER
1. Leave granted in all these matters.
2. The Nagarpalika, Mussoorie built twelve flats out of which six were transferred by it to Doordarshan. The remaining six were meant to be transferred to people who were in the middle-income group. By a certain method and process, these were allotted to six persons, five of whom are separately the appellants before us in these five matters. The sixth one has not approached this Court. These five appellants challenge the order of the Division Bench of the High Court whereby their challenge to individual orders of cancellation of allotment of flats passed by the Administrator-cum-Collector,has been negatived. As is plain from the order of the High Court and otherwise undenied, the orders of the Collector were passed in the purported exercise of executive or administrative power, not amenable to any appellate jurisdiction. The High Court on that premise entered into the arena of facts in order to determine whether the allotments were well merited and whether there was any fraud practiced by the allotees in obtaining the allotments. Competence of the officers of the Nagarpalika to transfer the flats to the appellants, was also gone into and it was discovered that the transfers had been effected without the prior approval of the Government. A host of other factors were brought within the controversy but no fault could be found to the price fixation. It is plain from the order of the High Court that the appellants have been worse off. Their rights in the property which they acquired in payment of good money, have been extinguished in jurisdiction which could well have been avoided since the then Administrator and the Collector were one and the same person and he had acted as a judge in his own cause. The High Court has gone to approve the action of the Administrator-cum-Collector. This view of the High Court is under challenge before us.
3. We have heard learned counsel for the parties. It appears that amongst these five cases, some of the appellants have obtained registered transfer deeds from the Nagarpalika and others not yet but all were put in possession of the respective flats. The effort of the Nagarpalika was thus geared to undo the entire deal because the succeeding personnel of the Nagarpalika (jobs being transferable) thought that there was something fishy. Even so, the entire matter required a proper handling and defi-nitely not in the hands of those who were parties to the original deal and those subsequent who suspected a clandestine deal. These were matters of large canvas which could not be determined in proceeding under Article 226 of the Constitution. A civil suit would have been the right remedy where everything would have been laid threadbare. In any case, the appellants’ case could not have been prejudged in the manner in which it has been done by the High Court in exercising its extraordinary jurisdiction. We, therefore, allow the appellants’ withdrawal of their writ peti-tions as preferred before the High Court and demolish the orders of the High Court, presenting a clean slate to the parties to settle their dispute in the civil court. Since the Nagarpalika, pursuant to the orders of the Collector/Administrator has sealed four of the flats out of the questioned five much after the decision of the High Court, it would be appropriate that the said seals are lifted and the flats put back in respective possession of the allottees. Let the seal of these flats be lifted within 15 days from the receipt of this order and possession be handed over to the respective allottees or their successors, if any. The possession of the allottees is extended protection for a limited period of six months to enable the allottees to move the civil court with an appropriate suit for declaration and injunction. During this time, the questioned orders of the Collector would remain suspended. The civil Court, on the filing of the suit/suits, would be at liberty to consider grant of temporary injunctions in favour of the allottees pending suit. Failure to file suit/suits or obtaining the temporary injunctions would entail normal consequences.
4. In this manner, we allow these appeals, set aside the im-pugned orders of the High Court , permit withdrawal of the writ petitions preferred by the appellants in the High Court, sequent-ly permitting them to file suit/suits for declaration and injunction as also permitting them to seek any other reliefs which may legally be due. Should there be any defence of limitation put up, the Court dealing with the question would bear in mind that the appellants had bona fidely been pursuing a remedy before the High Court as also in this Court. It is so ordered. No costs.
1. Leave granted in all these matters.
2. The Nagarpalika, Mussoorie built twelve flats out of which six were transferred by it to Doordarshan. The remaining six were meant to be transferred to people who were in the middle-income group. By a certain method and process, these were allotted to six persons, five of whom are separately the appellants before us in these five matters. The sixth one has not approached this Court. These five appellants challenge the order of the Division Bench of the High Court whereby their challenge to individual orders of cancellation of allotment of flats passed by the Administrator-cum-Collector,has been negatived. As is plain from the order of the High Court and otherwise undenied, the orders of the Collector were passed in the purported exercise of executive or administrative power, not amenable to any appellate jurisdiction. The High Court on that premise entered into the arena of facts in order to determine whether the allotments were well merited and whether there was any fraud practiced by the allotees in obtaining the allotments. Competence of the officers of the Nagarpalika to transfer the flats to the appellants, was also gone into and it was discovered that the transfers had been effected without the prior approval of the Government. A host of other factors were brought within the controversy but no fault could be found to the price fixation. It is plain from the order of the High Court that the appellants have been worse off. Their rights in the property which they acquired in payment of good money, have been extinguished in jurisdiction which could well have been avoided since the then Administrator and the Collector were one and the same person and he had acted as a judge in his own cause. The High Court has gone to approve the action of the Administrator-cum-Collector. This view of the High Court is under challenge before us.
3. We have heard learned counsel for the parties. It appears that amongst these five cases, some of the appellants have obtained registered transfer deeds from the Nagarpalika and others not yet but all were put in possession of the respective flats. The effort of the Nagarpalika was thus geared to undo the entire deal because the succeeding personnel of the Nagarpalika (jobs being transferable) thought that there was something fishy. Even so, the entire matter required a proper handling and defi-nitely not in the hands of those who were parties to the original deal and those subsequent who suspected a clandestine deal. These were matters of large canvas which could not be determined in proceeding under Article 226 of the Constitution. A civil suit would have been the right remedy where everything would have been laid threadbare. In any case, the appellants’ case could not have been prejudged in the manner in which it has been done by the High Court in exercising its extraordinary jurisdiction. We, therefore, allow the appellants’ withdrawal of their writ peti-tions as preferred before the High Court and demolish the orders of the High Court, presenting a clean slate to the parties to settle their dispute in the civil court. Since the Nagarpalika, pursuant to the orders of the Collector/Administrator has sealed four of the flats out of the questioned five much after the decision of the High Court, it would be appropriate that the said seals are lifted and the flats put back in respective possession of the allottees. Let the seal of these flats be lifted within 15 days from the receipt of this order and possession be handed over to the respective allottees or their successors, if any. The possession of the allottees is extended protection for a limited period of six months to enable the allottees to move the civil court with an appropriate suit for declaration and injunction. During this time, the questioned orders of the Collector would remain suspended. The civil Court, on the filing of the suit/suits, would be at liberty to consider grant of temporary injunctions in favour of the allottees pending suit. Failure to file suit/suits or obtaining the temporary injunctions would entail normal consequences.
4. In this manner, we allow these appeals, set aside the im-pugned orders of the High Court , permit withdrawal of the writ petitions preferred by the appellants in the High Court, sequent-ly permitting them to file suit/suits for declaration and injunction as also permitting them to seek any other reliefs which may legally be due. Should there be any defence of limitation put up, the Court dealing with the question would bear in mind that the appellants had bona fidely been pursuing a remedy before the High Court as also in this Court. It is so ordered. No costs.
