RAM NEWAS GARG vs NAGAR NIGAM, KANPUR & ANR.

Late Sh. Ram Ratan Garg was allotted a plot bearing no. 559, Block-C, Scheme-II, Sujatganj, Kanpur, measuring 200 sq. yards by Kanpur Nagar Mahapalika, Kanpur and a lease deed dated 16.02.1973 was also executed in his favour. Out of the total sale consideration of Rs. 3,300/-, Rs. 900/- were paid by the allottee before execution of the lease deed in his favour and the balance amount was payable in 12 six monthly instalments of Rs. 296.11/-. The possession of the plot, however, was not given to the allottee. After execution of the lease deed, the allottee was asked to take possession of the allotted plot on 08.11.1974. However, when he reached the site, possession could not be given to him since local people compelled the complainant and the officer who was to handover possession to him, to run away. Sh. Ram Ratan Garg expired on 06.03.1985. The complainant Sh. Ram Niwas Garg, who has died during the pendency of this revision petition, claims that late Sh. Ram Ratan Garg, who was his father, had executed a will in his favour, bequeathing all his properties to him. This is also the case of the complainant that he approached the respondents a number of times to handover the possession of the plot to him, but could not succeed in his efforts. Vide letter dated 07.02.1996, addressed to late Sh. Ram Ratan Garg, Kanpur Development Authority which is the successor in trust of Nagar Nigam Kanpur, demanded the outstanding amount of Rs. 1776.66/- from him alongwith interest at the rate of 15% per annum. However, neither the aforesaid amount was paid nor did Kanpur Development Authority take any action pursuant to the said notice. The complainant then approached the concerned District Forum by way of a complaint dated 17.10.1997 seeking possession of the aforesaid plot alongwith compensation etc.

The complaint was resisted by Kanpur Development Authority on the ground that the father of the complainant had not taken any action to take possession of the plot in question and after his death the complainant did not acquire any right to file the complaint without proving himself to be the legal heir of his father in respect of the above mentioned plot. This was however not disputed that the lease deed of the plot had been executed in favour of the father of the complainant. This was not the case of the opposite party in the reply that handing over of the possession of the plot to the allottee was dependent upon timely payment of the instalments by him. In the reply filed before the District Forum, the opposite party did not specifically deny the allegation of the complainant that when the allottee went to the site to take possession on 08.11.1974, he and Mr. S. K. Bose, the concerned officer of Nagar Mahapalika Kanpur were compelled to leave the site by administering threats to them.

Vide its order dated 07.07.2001, the District Forum directed the Kanpur Development Authority to handover the possession of the allotted plot to the complainant within a period of 60 days and also pay interest at the rate of 12% per annum to him on the amount deposited by him, till possession was delivered. A sum of Rs. 500/- was also awarded to him as cost of litigation. It was further directed by the District Forum that in the event of default, the complainant shall be entitled to get back the amount deposited by him alongwith interest at the rate of 12% thereon from 22.10.1997 in addition to Rs. 10,000/- as compensation.

Being aggrieved from the order passed by the District Forum, the complainant as well as the Kanpur Development Authority filed two separate appeals. Vide impugned order dated 13.07.2009, the State Commission set aside the order passed by the District Forum and dismissed the complaint to the extent possession of the plot was sought. However, the State Commission upheld the direction given by the District Forum for refund of the amount deposited by the allottee. Being aggrieved from the order passed by the State Commission, the complainant is before us by way of this revision petition.

The State Commission dismissed the complaint solely on the ground that the allottee had defaulted in payment of the balance amount as per the terms stipulated in the lease deed. On a

perusal of the lease deed, we do not find any condition that the delivery of the possession of the plot would be dependent upon timely payment of the 12 six monthly instalments of Rs.1776.66/- each. It is not in dispute that vide letter dated 06.11.1974, Nagar Mahapalika Kanpur had offered possession of the plot in question to the allottee. Three instalments had become due by that time. This clearly shows that handing over of the possession was not linked to the timely payment of the instalments, though as stipulated in the lease deed, in the event of default, the same could be recovered in the manner provided under chapter 21 of U.P. Nagar Mahapalika Adhiniyam 1959 (II of 1959) read with rule no. 24 of the Account Rules of the Mahapalika. Had timely payment of the instalment been linked to the possession, Nagar Mahapalika Kanpur would not have offered the possession to the allottee vide letter dated 06.11.1994. Therefore, the State Commission in our view was not justified in denying the possession of the plot in question to the rightful successor of the allottee only on account of default in making payment of the 12 six monthly instalments. In any case, if Nagar Mahapalika Kanpur was unable to handover the physical possession of the plot to the allottee on account of resistance from the local residents the allottee was not expected to keep on making payments of the balance instalments to it. It was the duty of the Nagar Mahapalika Kanpur to remove the resistance, if any, to handing over of possession of plot to the allottee if necessary by taking police help. That, however, was not done, thereby depriving the allottee from taking possession of the plot and raising construction on it. It would be pertinent to note here that the opposite party did not produce any evidence to controvert the allegation of the complainant that when the allottee went to take possession of the plot at the site on 08.11.1974 alongwith Mr. S. K. Bose, possession could not be delivered to him, on account of resistance from the local residents.

Another material aspect in this regard is that even in the notice sent in the name of the allottee on 07.02.1996, Kanpur Development Authority did not seek to determine the lease on account of non-payment of the balance amount of Rs. 296.11/- with interest. The only stand taken in the said notice was that if the aforesaid amount was not paid within 15 days, it would be recovered in accordance with the provisions of Section 40 (b), Uttar Pradesh City Planning and Development Work. We also take note of the decision of the Hon''ble Supreme Court in Meerut Development Authority vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC)7. For the reasons stated hereinabove, we are of the view that there is no reason why possession of the leased plot should be denied to the rightful legal heirs of the deceased allottee, provided the amount payable to Kanpur Development Authority is paid by him/them alongwith interest on that amount at the rate of 15% per annum. We are in agreement with the learned counsel for the opposite party that the possession can be handed over only after the lease deed is mutated in the name of the rightful legal heir of the allottee. We, therefore, set aside the impugned order and direct the respondents to handover the possession of the plot in question to the rightful legal heir(s) of the deceased allottee after the said plot is mutated in his/their name on completion of all the formalities including submission of requisite documents in this regard. He/they shall be entitled to apply for mutation of the plot in his/their name in the record of the Kanpur Development Authority within four weeks from today and alongwith application he/they shall also deposit the outstanding amount alongwith interest on that amount at the rate of 15% per annum. He/they shall also submit such other documents and proof as may be required by the Kanpur Development Authority to satisfy it that he is/they are the rightful legal heir of the deceased allottee. It shall be the duty of the Kanpur Development Authority to remove the encroachment, if any on the aforesaid plot and hand over its peaceful and vacant possession to the person(s) in whose name the plot is mutated. The revision petition stands disposed of.