Shyam Bihari Shrivastava vs Jabalpur Development Authority & Another

Vijay Kumar Shukla, J

Heard through video conferencing.

The present writ appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam,

2005 against the order dated 20-02-2020 passed by the learned Single Judge in W.P. No.5763/2015, whereby the writ petition has been disposed of

with the observation that the petitioner-appellant would be allotted the plot in question subject to depositing the current rate as prevailing for the same

and in addition, the order dated 5-6-2015 in relation to cancellation of the allotment of the plot has been directed to be suspended for the period of 30

days as given, for depositing the required amount and in case it is not done within the stipulated period the order dated 5-6-2015 would be operative,

meaning thereby the respondent â€" Authority would be free to sell the plot in question to any other person.

The learned counsel for the appellant submitted that the order passed by the learned Single Judge directing the payment of current rate is erroneous

and contrary to the Scheme of the respondents - Jabalpur Development Authority.

The facts of the case, succinctly stated are that, on 25-7-1986 the appellant was allotted the plot No.1215, Laxmipur, Scheme No.5 and accordingly

raised construction over the same having obtained requisite permissions from the competent authority and has been residing therein along with his

family. On 30-12-2009 the appellant having found some land in a triangular shape adjoining to his plot and finding it to be useful, applied to the

respondent No.1 for allotment of the triangular shape in accordance with the Scheme of the respondents.

The petitioner-appellant invoked the writ jurisdiction of this Court challenging the rejection of the allotment of the land in question. During the

pendency of the writ petition the respondents allotted the said plot to the petitioner by letter dated 6-02-2015 on the condition that the writ petition be

withdrawn on depositing the current market value of the plot, including other charges amounting to a total sum of ₹30,20,010/- in a single instalment.

The appellant in the light of the said condition as imposed by the letter dated 06-02-2015 withdrew the writ petition with the legitimate expectation that

the plot in question would be allotted to him.

The respondent No.2 passed the order dated 5-6-2015 cancelling the conditional allotment as done in favour of the appellant on 6-02-2015. The

appellant submitted a detailed representation seeking the charging of average rate for the triangular shape plot adjoining to the constructed house in

plot No.1215 on the the basis of relevant provisions in the scheme.

The petitioner-appellant filed the writ petition which has been disposed of by the impugned order directing the allotment of the plot in question

subject to deposit of current rate as prevailing.

The learned counsel for the petitioner-appellant failed to establish his right for allotment of the plot in question on the average rate. The learned

Single Judge has discussed the issue in question in detail in para 7 of the impugned order, which is reproduced hereunder :

 “7. Considered the decision arrived at by Board of Director of Jabalpur Development Authority dated 27.09.1999 filed as Annexure P/6 alongwith the writ

petition. In the said decision, it has been mentioned that if the land to be allotted is of no use for any other person and can only be used by the adjoining plot holder

then in such condition, the land is not to be allotted on the basis of the current rate but it is to be allotted on the basis of the average rate i.e. current rate+ the rate at

the time of allotment. However, there is a proviso that if plot holder has intentionally done construction or possession over the additional area of plot then in such

cases only the land is to be allotted on the basis of current rate. Petitioner in this petition has filed copy of the suit filed by him before the Trial Court. In the suit, it

has been admitted by the petitioner that he is in possession of the adjoining land in question and has also made construction over it. In what manner, petitioner had

come in possession of the adjoining land of the Jabalpur Development Authority has not been stated. Petitioner has nowhere mentioned in the civil suit as to how he

had come in lawful possession of the adjoining land for which he is seeking allotment from the respondents. Petitioner in the suit has claimed to be owner of the

adjoining open land measuring 1370 square feet of land. Pleading in the plaint has been verified by the petitioner and affidavit has also been filed in support of the

plaint by the petitioner. Since petitioner is in possession of the adjoining land and petitioner has not explained as to how he had come in possession of the said land,

therefore, the proviso of decision of the Board of Directors of Jabalpur Development Authority dated 27.9.1999 will be applicable in the case and the petitioner has to

pay the current rate of the land.â€​

The learned Single Judge after examining the entire gamut of facts and documents brought on record, in proper perspective, held that the petitioner-

appellant is entitled for allotment of the plot in question not on the average rate, but on the current rate. The learned Single Judge has taken into

consideration that the petitioner-appellant is in possession of the adjoining land and he has not explained as to how he came in possession of the said

land and, therefore, the proviso of the decision of the Board of Directors of the Jabalpur Development Authority, dated 27-9-1999, will be applicable in

the case and the appellant has to pay the current prevailing rate of the land.

We do not find any illegality or infirmity in the impugned order passed by the learned Single Judge warranting any interference in this intra-court

appeal. Accordingly, the writ appeal being sans merit is dismissed. There shall be no order as to costs.