Full Judgment
Binod Kumar Roy and A.K. Yog, JJ.
1. The petitioner has come up for grant of following reliefs :
'(i) Issue writ order or direction in the nature of writ of mandamus directing the respondents Varanasi Development Authority to hand over the possession to the petitioner of Flat No. L-5/37, Shastri Nagar, Varanasi in pursuance of lease deed executed on 15.7.78 'And or in alternative Refund the money deposited by the petitioner with a arrears compound interest at the rate of 18% in every quarter of a year, the rate on which Varanasi Development Authority charges in respect of its higher purchase transaction.
(ii) Issue a writ of certiorari to quash the document dated 23rd August, 1991 executed by the respondent Nos. 1 and 2 in favour of the Smt. Tara Singh w/o Shri Shitla Prasad.'
2. The case of the petitioner in brief is as follows :-
He entered on 18.8.1978 (copy appended as Annexure-1) an agreement with Respondent No. 1 for purchasing one Lower Income Group Flat constructed by the latter in Chakla Bagh, now known as Shastri Nagar Development Scheme, situated in Mohalla Lallapura of the City of Varanasi. In terms of the agreement he deposited Rs. 18,000/- through Receipt No. 27 (copy appended as Annexure- 2). It was provided in the agreement that the balance amount shall be deposited by him after taking possession of Flat No. L-5/37 in question, which was allotted to him, At that time the cost of the flat was Rs. 24,884.68 Paise and Rs. 18,000/- already having been paid, the balance amount, was payable in instalments after the delivery of possession. Even though the building consisting the flat in question was completed in 1980 the possession of the flat in question has not been handed over to the petitioner till date even though to other allottees possession was given who are living and enjoying their flats since 1980. There was no reason for Respondent Nos. 1 and 2 to hand-over possession of the flat in question to him even though for that purchase he made repeated requests orally and in writing. Only to delay the matter Respondent No. 1 filed a suit for eviction of Respondent No.-3 Shitla Prasad Singh before the City Magistrate, Varanasi (the Prescribed Authority under Section 3 of the U.P. Public Premises Eviction of Unauthorised Occupants Act, 1972) on 7.6.1980 (copy of the plaint appended as Annexure-3) who decided the same in favour of Respondent No 1 directing him to vacate the flat in question and hand-over its possession to Respondent No. 1. It was reported to the Magistrate that Respondent No. 3 had vacated the flat in question and handed over its possession to Respondent No. 1 vide order dated 16.12.1981 (coppy appended as Anncxure-4). Respondent No. 3, however, challenged the correctness of the order in appeal filed before the appellate authority. The appellate authority remanded the case vide its judgment dated 23rd March, 1982 (copy appended as Annexure 5). The City Magistrate Varanasi once again vide his order dated 23rd August, 1983 (copy appended as Annexure 6) allowed the suit. Against this order also Respondent No. 3 went up in appeal but his appeal was dismissed for default. The said appeal after 8 years was restored back by the District Judge, Varanasi without any information to the petitioner. As soon as he made an effort for his impleadment as a party in order to challenge the order of restoration Respondent No. 1 all of a sudden withdrew the original case itself due to connivance with Respondent No. 3 and also executed a Memorandum of Lease (copy appended as Annexure) in favour of Respondent No. 4, wife of Respondent No. 3 without cancelling the Memorandum of Lease executed in his favour. The withdrawal and execution of the document speaks the unfairness of Respondent No. 1 and its favouritism and collusion. Despite several requests in writing vide letters as contained in Annexures 7 to 13 to the Secretary, Vice Chairman and the Chairman of the Authority no result came out and hence this writ petition.
3. After the issue of notices to Respondent Nos. 3 and 4 vide order dated 6.3.1998 opportunities were granted to Respondent Nos. 1 and 2 to file their counter vide orders dated 15.1.1999, 15.2.2001 and lastly vide order dated 20.2.2001 but no counter-affidavit has been filed.
4. On 15.2.2001 Respondent Nos. 3 and 4 were deleted by the learned Counsel for the petitioner, therefore, there cannot be any question of granting Relief No. 2 in the absence of Respondent No. 4 Smt. Tara Singh, Prayer No. (ii) is thus rejected.
The Submissions :
5. Sri Ravindra Rai, learned Counsel for the petitioner, in the backdrop aforementioned, contended that the facts stated by the petitioner speak for themselves, the doctrine of non-traverse be invoked and Respondent Nos. 1 and 2 be directed to refund a sum of Rs. 18,000/- deposited by the petitioner pursuant to the agreement alongwith compound interest at the rate of 18% per quarter per annum, which the Varanasi Development Authority charges in respect of its higher purchase agreements from the defaulting parties.
6. Sri Ved Vyas Mishra, learned Counsel appearing on behalf of Respondent Nos. 1 and 2, very fairly states that here is nothing on the record to refute the allegations made by the petitioner and accordingly this Court may proceed to pass such orders which it may consider expedient in the interest of justice.
Our Findings :
7. The allegations of unfairness, favouritism and collusion made by the petitioner are extremely serious. It is not understandable as to why in favour of wife of a person who was in an unauthroised occupation of the flat in question lease was executed by Respondent Nos. 1 and 2 which was already allotted to the petitioner earlier who had also paid a sum of Rs. 18,000/- and was prepared to pay the balance amount as per the agreement after its delivery of possession to him. No Counter has been filed despite grant of repeated opportunities. Thus we invoke the doctrine of non-traverse. The net result is that we hold that the petitioner was never delivered possession of the flat in question by Respondent Nos. 1 and 2 who had also withdrawn their suit for eviction of Respondent No. 3 and proceeded to settle the flat in question with Respondent No. 4. Accordingly, it would be in the interest of justice to command Respondent Nos. 1 and 2 to return back the amount deposited by the petitioner alongwith such interest which Respondent Nos. 1 and 2 are themselves charging from such defaulting parties who had entered an agreement with Respondent Nos. 1 and 2, within three months from today. We order accordingly.
8. Since the petitioner has also been coerced to move this Court, we are of the view that he is also entitled to cost of this proceeding which we in the peculiar facts and circumstances quantify at Rs. 2,000/- only.
9. This writ petition is disposed of accordingly.
10. The office is directed to hand-over a copy of this order within one week to Sri Ved Vyas Mishra, learned Counsel for Respondent Nos. 1 and 2, for its intimation to and follow up action by Respondent Nos. 1 and 2.