High Court of Uttarakhand · 2025

Mr. B.S. Adhikari, Advocat e for r espondent nos.2, 3 and 4. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Th e Co u r t m a d e t h e f o l l o w i n g : JUDGMENT: ( p e r H o n ’ b l e Ju st i c e Sr i M a n o j K u m a r Ti w a r i )

1. This int ra- court appeal is direct ed against t he j udgm ent and order dat ed 29.04.2015 rendered by learned Single Bench in Writ Pet it ion No.300 ( M/ S) of

2013. By t he said j udgm ent , writ pet it ion filed by t he appellant , challenging t he com m unicat ion dat ed

13.02.2013 issued by Com m issioner, Housing, was dism issed. Relevant port ion of t he im pugned j udgm ent is ext ract ed below: - “ As discussed her einbefore, t here is no disput e bet w een t he lear ned counsel for t he part ies t hat as per Regulat ion No. 34, ev ery applicat ion seeking allot m ent of t he plot s or residences shall be invit ed by way of publicat ion and allot m ent shall be m ade 1 by way of lot t ery. As per Clause ( 3) of Regulat ion 34, only sm all port ion of left over land m ay be allot t ed by t he Housing Com m issioner direct ly by exer cising his discret ion. I n m y hum ble opinion, Clause ( 3) of Regulat ion 34 was induct ed wit h a view or in ot her words can be underst ood t o m ean t hat if aft er carving out different plot s, sm all piece of land is left over, t hen it can be allot t ed in favour of t he allot t ee t he neighbouring t he Housing Com m issioner by exer cising his discret ion. Undisput edly, Plot No. 101, propert y quest ion, is a com m ercial plot , m easuring about 1500 sq.m . I t is not a sm all piece of left over propert y, t her efore, it cannot be r eserved or allot t ed by t he Housing Com m issioner in violat ion of Regulat ion 34. Plot , in quest ion, can be allot t ed only by way of invit ing applicat ions from t he general public t hat t oo t hereaft er by lot t ery. Since r eservat ion m ade favour of t he pet it ioner on 20.11.2013, annex ur e No. 3 t o t he writ pet it ion, in violat ion of Regulat ion 34, t her efore, sam e can very w ell be said against t he public policy t oo. Ther e is anot her aspect of t he m at t er. As per Art icle 14 of t he Const it ut ion of I ndia, St at e or inst rum ent alit y of t he St at e cannot act arbit rarily and act ion of t he Housing Com m issioner m aking reservat ion favour of t he pet it ioner wit hout adopt ing procedur e prescribed under Regulat ion 34, on t he face of it , is ar bit rary and against t he public policy. Consequent ly, it was barr ed by Sect ion 23 of t he Cont ract Act . Ther efor e, it was not valid agreem ent of reservat ion as per Sect ion 10 of t he 2 Cont ract Act . Consequent ly, cancellat ion t hereof by t he im pugned or der cannot be fault ed wit h. This is set t led posit ion of law t hat no or der should be quashed on hyper t echnical ground w hich would r esult int o revival of any illegal order. I n m y opinion, even if it is held t hat pet it ioner was not hear d or was not given any opport unit y of hearing befor e passing t he im pugned cancellat ion order , quashing of t his order on t hat ground would am ount t o rest orat ion of illegal reservat ion m ade in favour of t he pet it ioner which it self is not valid as per Sect ions 10 and 23 of t he I ndian Cont ract Act . 7 Ther efore, writ pet it ion fails and is her eby dism issed.”

2. The Com m unicat ion dat ed 13.02.2013 issued by Com m issioner, Housing, which was im pugned in t he writ pet it ion, provides t hat t he am ount of Rs. 24.00 Lacs deposit ed by t he appellant for reserving a piece of land in his favour, shall be ret urned t o him and t he earlier order passed by Com m issioner, Housing, on 20.11.2012, accept ing t he offer m ade by t he appellant , is cancelled.

3. I t t ranspires t hat an inj unct ion suit was filed by one Mr. Har Prasad Sah against U.P. Avas Vikash Parishad, which was pending in t he court of Civil Judge ( J.D.) , Haldwani, Nainit al. I n t he said suit , Mr. Har Prasad Sah was claim ing t o be t he owner of land com prised in plot no.101, sit uat ed in a colony developed by U.P. Avas Vikash Parishad, referred as Yoj na I I I .

4. Pet it ioner m ade an offer t o U.P. Avas Vikash 3 Parishad t hat he will look aft er t he lit igat ion and aft er t he case is decided in favour of U.P. Avas Vikash Parishad, t he land regarding which t he suit was pending, should be allot t ed t o him and he expressed willingness t o pay Rs.

5.00 Lacs, above t he prevailing price of t he land as per current circle rat e. The said offer was init ially accept ed by Com m issioner, Housing and t he appellant was asked t o deposit 10% of t he m arket value of t he land, as per circle rat e and, in response t o t he count er- offer m ade by U.P. Avas Vikash Parishad, appellant deposit ed Rs. 24.00 Lacs and t he plot was reserved in favour of t he appellant .

5. Order of reservat ion m ade in favour of t he appellant was challenged in Writ Pet it ion No.95 ( M/ S) of 2013 by one Shri Yam una Dut t Sanwal and during pendency of t hat writ pet it ion, Com m issioner, Housing passed t he com m unicat ion dat ed 13.02.2013, which was im pugned in t he writ pet it ion.

6. Learned Single Judge, aft er considering t he provisions of I ndian Cont ract Act and also t he provision cont ained in Regulat ion 34 of U.P. Avas Vikash Parishad ( Regist rat ion and Allot m ent of Plot s and Houses) , Regulat ion, 1979, held t hat t he reservat ion m ade in favour of t he appellant was against t he public policy and was also violat ive of provision cont ained in Regulat ion 34 of t he aforesaid Regulat ions. I t was furt her held t hat t he allot m ent of plot s/ houses has t o be m ade, by draw of lot s, aft er invit ing applicat ions from general public. Thus, t he challenge t hrown by t he appellant t o t he com m unicat ion dat ed 13.02.2013 was found t o be wit hout subst ance by 4 learned Single Judge.

7. We concur wit h t he reasoning given by learned Single Judge. U.P. Avas Vikash Parishad is a st at ut ory aut horit y, est ablished under t he provisions of U.P. Avas Evam Vikash Parishad Adhiniyam , 1965, t herefore, t he st at ut ory aut horit y cannot m ake allot m ent of land in favour of privat e individuals by privat e negot iat ions or in t he m anner, as it was done, in t he present case. Thus, t here is no scope for int erference wit h t he im pugned j udgm ent .

8. At t his st age, learned counsel for t he appellant subm it s t hat t he appellant had deposit ed a sum of Rs.

24.00 Lacs in t he year 2012, t herefore, appellant is ent it led t o int erest on t he said am ount , which is st ill lying wit h U.P. Avas Vikash Parishad.

9. Wit hout expressing any opinion on t he m erit of t he claim st aked by t he appellant , we dispose of t he appeal wit h libert y t o t he appellant t o m ake represent at ion regarding refund of t he am ount wit h int erest . I f he m akes such represent at ion wit hin t wo weeks from t oday, t he Com pet ent Aut horit y in U.P. Avas Vikash Parishad shall exam ine t he m at t er and t ake decision, wit hin four m ont hs t hereaft er. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 25.06.2025 25.06.2025 Rajni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db48448ac3 701a9ae475a2547e4b7f1d9b1f17d01342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4DF4F C80D4557562F95BEBA013F530616A158A0A8 78BD8, cn=RAJINI GUSAIN 5