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Judgment
Devi Prasad Singh, J.—Heard Mr. Vinai Bhushan as well as Mr. Harvind Kumar, learned Counsel appearing for the petitioner and Mr. Rajesh Chaddha, learned Counsel for the private respondent.
The respondent No. 3 in pursuance to the invitation of Ghaziabad development Authority in the year 1988 has applied for a plot to construct her own Nursing Home. A perusal of the application reveals that the application was given on 15.6.1988 for allotment of plot. The application form contains preferential allotment of plot in Patel Nagar, Raj Nagar, Lohiya Nagar, Kavi Nagar, Sanjai Nagar and Lajpat Nagar. The record further reveals that acording to the order dated 2.8.1988 of the Vice Chairman, Ghaziabad Development Authority, the plot for construction of Nursing Home in Patel Nagar was allotted to one Dr. Pravin Kumar and the respondent No. 3 Smt. Lat Jain measuring the area of 500sq.m. The plot was allotted applying lottery system. Dr. Pravin Kumar was allotted plot No. 1 whereas the private respondent was allotted plot No. 2 by the Vice Chairman as indicated in the map concerned. The Committee, headed by the Vice Chairman, a photostat copy of which is on record (not original), indicates that the case of other persons was also considered for allotment of plot to construct Nursing Home. The record produced by the Secretary, Ghaziabad Development Authority also reveals that the provisional allotment letter dated 16.8.1988 was also issued. The Joint Secretary, Ghaziabad Development Authority also requested the Chief Archichect and the city planner of the Ghaziabad Development Authority to submit the map expeditiously so that the plot may be handed over to the allottees. Thus from the original record, produced by the Secretary, Ghaziabad Development Authority, it appears that plot No. 2 was allotted to Dr. Lata Jain by the Ghaziabad Development Authority in response to her application.
It appears that in spite of the fact that plot No. 2 was allotted to the respondent in Patel Nagar, Ghaziabad, the same was not handed over to her.
Mr. Narendra Kumar, Secretary, Ghaziabad Development Authority made a statement before the Court that the plot allotted to Smt. Lata Jain has not been given to any one and still it is under possession of encroachers.
It appears that since the possession of the plot was not given to the respondent, she approached the District Consumer Forum, Ghaziabad by filing complaint No. 339 of 1994 which was allowed by order dated 8.9.1998 directing the Ghaziabad Development Authority to allot a plot in Indirapuram Colony to construct a Nursing Home. Feeling aggrieved with the order passed by the District Consuram Forum, an appeal was preferred by the petitioner before the State Commission. That too was decided finally by order dated 29.6.2002. The appeal was dismissed and the State Commission has directed to allot the plot in Indirapuram for construction of Nursing Home. It appears that during pendency of appeal, by an interim order, plot No. NH-1 measuring 1526sq.m. in Indirapuram was reserved for the petitioner. The petitioner''s counsel submits that by order dated 3.1.2002, the interim order was modified and it was provided that they should reserve the plot at alternative site for the purpose of Nursing Home.
However, a perusal of the judgment and order of the State Commission shows that while finally adjudicating the matter, the State Commission has made observation that plot No. NH-I has been reserved for the petitioner. It shall be appropriate to reproduce relevant portion from the judgment of the State Commission:
As given to understand a plot No. NH-I Ahinsa Khand-2, Indra Puram is still available and the order in question dated 12.01.04 also makes a mention that a plot will be earmarked to accommodate the complainant which will be subject to the order passed by the Hon''ble Supreme Court in SLP so the right of the complainant is still subsisting.
Thus, a plain reading of the judgment and order dated 21.10.2008 shows that the State Consumer Disputes Redressal Commission was impressed to believe that plot No. NH-I was reserved during pendency of the proceedings and shall be given if the claim is allowed.
The petitioner''s counsel submits that in view of the modified order, the plot was auctioned and it has been given to some other person in the year 2005 but it appears that the petitioner had not apprised the State Consumer Disputes Redressal Commission with regard to auction of plot No. NH-I; rather concealed the fact that the plot was reserved and not disposed of. The Ghaziabad Development Authority has concealed the material fact with regard to disposal of the plot and not apprised the State Consumer Disputes Redressal Commission before delivery of the judgment in the year 2008. The conduct of the Ghaziabad Development Authority is deprecated.
The judgment and order, passed by the State Commission has been affirmed by the Hon''ble Supreme Court.
When the respondent was not allotted plot No. NH-I, the respondent has proceeded for execution. The District Consumer Forum has restrained the Ghaziabad Development Authority from auctioning the plot in Indirapuram and directed to allot the plot to the respondent. However, a defence was taken by the petitioner before the District Consumer Forum that the respondent''s application was for construction of Nursing Home and the only vacant plot available in Indirapuram is for hospital, hence it cannot be allotted. The judgment of the State Consumer Disputes Redressal Commission affirmed by the Hon''ble Supreme Court reveals that the petitioner has assured for allotment of plot in Indirapuram itself. However, it appears that neither the District Consumer Forum nor the State Commission and the Hon''ble Supreme Court has specified the area for allocation of plot for the purpose of construction of Nursing Home.
So far as the right of the applicant respondent is concerned, ordinarily, it should be dealt with on the basis of the application submitted by the private respondent. A perusal of the original application form produced by the Secretary, Ghaziabad Development Authority along with the record reveals that the private respondent had applied for allotment of plot to construct a Nursing Home. What is the area provided for Nursing Home and the hospital has not been specified by the petitioner itself. No material has been placed before the Court to indicate that the Authority has taken certain decision specifying the area for construction of the Nursing Home or the hospital. However, some of the advertisements produced before the Court indicates that the area of hospital is higher than the area for Nursing Home.
Attention of this Court has been invited by the respondents to a recent advertisement of the year 2009, a copy of which has been filed as Annexure No. 9 to the writ petition, which shows that the area for Nursing Home is 2230sq.m. but contrary to it, the original allotment made for the respondent was 500sq.m. It has been stated by the petitioner''s counsel that only plot available for Indirapuram is for the hospital and its total area is 3438sq.m. Even if only plot is available, the petitioner has lost its right to change the location of plot. From the perusal of the judgment starting from District Consumer Forum upto Hon''ble Supreme Court, it appears that a finding has been recorded with regard to location of plot for Nursing Home in Indirapuram. The petitioner has got no right to shift the plot. There should be finality of judicial pronouncements. It is pointed out by the learned Counsel for the petitioner that the petitioner is ready to allot the plot in Indirapuram.
Now the question remains with regard to area of the plot.
So far as the right of the private respondent is concerned, the area has not been specified. Almost 21 years have been passed and because of apathy of the petitioner, the private respondent could not get the plot for construction of Nursing Home. The petitioner has sold the plot No. NH-I measuring 1526 sq.m without seeking any permission from the district or State Consumer Commission. Even on the date of delivery of judgment by the State Commission, the petitioner had not pointed out that the plot has already been auctioned and sold to some other person. Such conduct on the part of the petitioner is again deprecated. The respondent seems to have got right to claim a plot measuring 1526 sq.m. Keeping in view the fact that plot No. NH-I was reserved during the pendency of the matter before the district and State Commission.
It has been vehemently argued by the learned Counsel for the private respondent that the present writ petition is not maintainable and the petitioner should approach the National Commission. The matter is hanging over from one court to other for the last 26 years. It has been settled by a catena of decisions of Hon''ble Supreme Court that the statutory remedy is no bar for this Court to exercise power under Article 226 of the Constitution of India. Accordingly, I do not think it proper to relegate the present case to the State Commission again and keep the matter hanging for few more years. There should be finality and the things should be settled at rest for all times to come.
So far as the impugned judgment and order passed by the State Commission is concerned, it suffers from substantial illegality as it provides that plot No. 1 Nyay Khand-I, Indirapurarm may be made available to the private respondent without taking into account the area for which the respondent is entitled. Accordingly, to that extent, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 1.12.2009, passed by the State Consumer Disputes Redressal Commission, Lucknow. It shall be open for the petitioner to divide the existing plot meant for construction of the hospital with intention to allot to private respondent forthwith and allot a plot for Nursing Home keeping in view the observations made above. Let necessary decision be taken and the plot for Nursing Home be handed over to the private respondent within a period of six weeks from today. The District Consumer Forum may proceed in the manner indicated above.
The writ petition is allowed accordingly. No order as to costs.