Hon'ble Jaspreet Singh,J.
1. Heard Sri Qazi Mohd. Ahmad, learned counsel for the petitioners, Sri Prabhat Kumar, Brief Holder, appearing on behalf of the respondents State, Sri Ratnesh Chandra, learned counsel for the respondents no. 2 and 3 and Sri S.S. Rajawat, learned counsel for the respondent no.5.
2. By this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 16.1.2001 in respect of House No. 3/394, Mini LIG, Sector-H, Jankipuram, Lucknow, whereby the allotment of the aforesaid house, which was made in favour of the wife of petitioner no.1-Ram Saran Yadav and mother of other petitioners (Smt. Yashomati Yadav, now dead) on 7.1.1999, has been cancelled. They are also praying for issuance of writ of mandamus directing the respondents to restore the allotment of House No. 3/394, Mini LIG, Sector-H, Jankipuram, Lucknow in favour of the petitioners and not to dispossess them from the aforesaid house.
3. Brief facts of the case are that House No. 3/394, Mini LIG, Sector-H, Jankipuram, Lucknow was allotted to respondent no.5-Sannu Chauhan alias Sannu Lal vide allotment letter dated 3.7.1989, pursuant to which, respondent no.5 deposited some amount on different dates but due to non-deposition of the outstanding installment in terms of the allotment letter dated 3.7.1989, allotment of the house in question made in favour of respondent no.5 was cancelled vide order dated 18.1.1992.
4. After cancellation of the said allotment, House No. 3/394, Mini LIG, Sector-H, Jankipuram, Lucknow, was allotted to Smt. Yashomati Yadav (wife of petitioner no.1 and mother of other petitioners) on 7.1.1999. In pursuance of the allotment letter dated 7.1.1999, Smt. Yashomati Yadav had started to deposit the installments and took possession of the aforesaid house. Smt. Yashomati Yadav had also taken electricity connection, water connection and Gas connection in the allotted house and lived therein peacefully. Later on, Smt. Yashomati Yadav failed to deposit the outstanding amount as per the terms of allotment letter dated 7.1.1999, therefore, the allotment of the house in question made in favour of Smt. Yashomati Yadav was cancelled vide order dated 16.1.2001 without issuing any show cause notice to Smt. Yashomati Yadav. Thereafter, Smt. Yashomati Yadav filed an application dated 1.3.2005, seeking recall of the order dated 16.1.2001. During pendency of application dated 1.3.2005, the petitioners have also filed an application dated 16.1.2013 seeking One Time Settlement, which was decided by the Lucknow Development Authority on 4.4.2013 by stating that as her allotment stood cancelled on 16.1.2001, hence, the OTS could not be considered.
5. According to the petitioner, a writ petition, bearing No. 2840 of 2006 (M/B) was filed by the respondent no.5, challenging the order of cancellation dated 18.1.1992. In the said writ petition, Smt. Yashomati Yadav was not made a party, therefore, on the knowledge of the aforesaid writ petition, Smt. Yashomati Yadav (the wife of petitioner no.1 and mother of the other petitioners) filed an impleadment application, bearing No. 113676 of 2014, in the aforesaid writ petition, which was rejected vide order dated 29.7.2016 with the following observations :
"This is an application for impleadment moved by Smt. Yashomati Yadav.
The application moved by Smt. Yashomati Yadav is not maintainable in view of the fact that her allotment stands cancelled and she has not challenged the cancellation order uptil now.
It will be open for the applicant-Smt. Yashomati Yadav to adopt appropriate remedy as provided under law.
The application in question is accordingly dismissed.
So far as dispute between petitioner and Lucknow Development Authority is concerned regarding payment of interest, the petitioner is permitted to approach Lucknow Development Authority in this regard by moving an application within fifteen days.
The Lucknow Development Authority will thereafter consider the case of the petitioner in regard to fixation of interest and amount and decide the same within four weeks thereafter inform the petitioner accordingly.
It will be open for the petitioner to challenge the said order after it is communicated to him.
List after six weeks."
6. Later on, the aforesaid writ petition was disposed of vide order dated 10.1.2017 with the following observations :
"Heard Sri S.S. Rajawat, Advocate holding brief of Sri Jayant Singh Tomar, learned counsel for the petitioner and Sri Subhash Kumar Pandey, learned Standing counsel for Lucknow Development Authority (in short 'L.D.A.').
The petitioner has prayed that House No. 3/394, Sector-H, Jankipuram, Lucknow situated in corner plot may be allotted/ handover to the petitioner.
Learned Standing counsel for L.D.A. has informed that in compliance of the Court's order dated 1.9.2014 the allotment has been made in the name of the petitioner and the L.D.A. is willing to handover the possession to the petitioner in case, the petitioner deposits the entire amount as demanded by the L.D.A.
Learned counsel for the petitioner says that the amount demanded by the L.D.A. is excessive and he is not in a position to pay the same at the moment.
The Court feels that such issues for concession can be made only by the L.D.A. and the matter is between the L.D.A. and petitioner and for such negotiations there are various schemes of L.D.A., like one time settlement. The petitioner will be entitled to approach the L.D.A. for any such settlement or approach the District Consumer Forum for redressal of his grievance.
The petition is disposed of with the above observations."
7. In pursuance of the aforesaid order dated 10.1.2017, the house in question was re-allotted to the respondent no.5 on 5.9.2014. Subsequently, on 11.5.2017, Smt. Yashomati Yadav, original allottee, died and as such, the petitioners, being the legal heirs of late Smt. Yashomati Yadav, have filed the instant writ petition, challenging the order of cancellation dated 16.1.2001
8. According to the petitioners, right from the allotment of the house in question, petitioners are in possession till date. It has also been stated that as a matter of fact, the petitioners had sought impleadment in writ petition no. 2840 (M/B) of 2006, that was filed by the respondent no.5, which was rejected on 29.7.2016 and it was made open to the petitioners to seek the remedy in accordance with law. It is, thereafter that the petitioners have come up before this Court contending that the respondents having failed to act in accordance with law and having illegally negotiated the property with the respondent no.5.
9. Sri Ratnesh Chandra, learned counsel for the Lucknow Development Authority has drawn our attention to the affidavit dated 6.8.2019 duly sworn by the Vice-Chairman, Lucknow Development Authority and has submitted that the entire record was scrutinized and, thereafter, on the basis of the amount deposited by the petitioners as well as respondent no.5-Sri Sannu Chauhan and also the default made by them as well as after imposition of penal interest, the following position emerges :-
"(i). In case this Hon'ble Court permits petitioners to retain House No. 3/394, Sector-H, Jankipuram, Lucknow, they would be liable to pay Rs.21,77,800/- as well as 1% more against revival fee.
(ii) In case this Hon'ble Court directs for allotting alternate plot no. 6/4 & 6/5, Sector-H, Jankpuram Yojna, Lucknow to petitioners, then, in that event petitioners would be liable to pay Rs.1,01,700/-
(iii) In case Sri Sannu Chauhan is provided House no. 3/394, he would be liable to pay an amount of Rs.9,53,719/-
(iv) In case this Hon'ble Court directs for allotting plot no. 6/4 & 6/5 to Sri Sannu Chauhan, then, in that event Sri Sannu Chauhan would be liable to pay Rs.5,96,803/-
10. Learned Counsel for the Lucknow Development Authority has further submitted that all the aforesaid amounts are in addition to what has been paid earlier either by petitioners or by Sri Sannu Chauhan.
11. Lastly, learned counsel for the Lucknow Development Authority has submitted that if the petitioners and respondent no.5 are agree with any of the aforesaid positions, the Lucknow Development Authority has no objection in modifying the impugned order and allotting the plot in question in favour of the respective parties.
12. From perusal of the record, it reveals that vide order dated 21.8.2019, this Court directed the learned counsel for the petitioners and respondent no.5 to go through the averments made in the aforesaid affidavit and, if necessary, may file counter affidavit within three days. It appears that no objection has been filed either by the petitioners or by the respondent no.5.
13. However, today during the course of arguments, learned counsel for the petitioners has submitted that the petitioners does not want to file any objection and they are ready to accept position no. ii as indicated in para-5 of the affidavit dated 6.8.2019 i.e. in case this Hon'ble Court directs for allotting alternate plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow to petitioners, then, in that event petitioner would be liable to pay Rs.1,01,700/-. He has further submitted that the petitioners will pay Rs.1,01,700/- within three months to the Lucknow Development Authority in respect of adjacent plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow.
14. Per contra, learned counsel for the respondent no.5 has submitted that the respondent no.5 is ready to accept position no. iii, as indicated in para-5 of the affidavit dated 6.8.2019 i.e. in case Sri Sannu Chauhan is provided House No. 3/394, he would be liable to pay an amount of Rs.9,53,719/-. He has further submitted that the respondent no.5 will pay Rs.9,53,719/- within six months to the Lucknow Development Authority in respect of House No. 3/394, situated at Sector-H, Jankpuram Yojna, Lucknow.
15. Considering the aforesaid, particularly the fact that the petitioners are ready to give away the possession of House No. 3/394, Sector-H, Jankipuram Yojna, Lucknow, which is in their possession till date and instead they are ready to take alternate vacant plot earmarked by the Lucknow Development Authority i.e. plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow and will pay for the same Rs.1,01,700/- within three months and on the other hand, the respondent no.5-Sri Sannu Chauhan is ready to take House No.3/394, Sector-H, Jankipuram, Lucknow and will pay for the same Rs.9,53,719/- within six months, we issue the following directions :
(1) The petitioners shall pay Rs.1,01,700/- in respect of plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow to the Lucknow Development Authority; vacant House No. 3/394, Sector-H, Jankipuram, Lucknow; and hand over the possession of the same to the Lucknow Development Authority within three months from today.
(2) If the petitioners deposits Rs.1,01,700/- within the stipulated period, the Lucknow Development Authority shall issue letter of allotment in respect of plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow, in favour of the petitioners by modifying the impugned order dated 16.1.2001 and shall ensure that the peaceful possession of plot no. 6/4 & 6/5, Sector-H, Jankipuram Yojna, Lucknow shall be handed over to the petitioners forthwith.
(3) The respondent no.5 shall pay Rs.9,53,719/- in respect of House No. 3/394, Sector-H, Jankipuram to the Lucknow Development Authority within six months from today.
(4) If the respondent no.5 deposits Rs.9,53,719/- in respect of House No. 3/394, Sector-H, Jankipuram, within the stipulated period, the Lucknow Development Authority shall issue letter of allotment of House No. 3/394, Sector-H, Jankipuram in favour of the respondent no.5 and shall hand over the peaceful possession of the same to the respondent no.5 forthwith.
(5) In the event of default of aforesaid conditions by either petitioners or respondent no.5, the Lucknow Development Authority will free to proceed against either of the them in accordance with law.
16. With the aforesaid, the writ petition stands disposed of.