Wing Commander Sanjay Kumar Gaur and Another. Vs. State of U.P. and Others.

Wing Commander Sanjay Kumar Gaur and Another. vs State of U.P. and Others.

Type Court Judgment Court Karnataka Decided Jul 03, 2010

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https://sooperkanoon.com/case/912210

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Citation: sooperkanoon.com/912210
Court: Karnataka High Court
Judge: Uma Nath Singh ; Devendra Kumar Arora
Decided On: Jul 03, 2010
Case Number: MISC. BENCH No. - 6232 of 2010.
Subject: Service

Case Summary

AI-generated summary - not the official court judgment text.

[K.T. Thomas and; R.P. Sethi, JJ.] - Civil Procedure Code (CPC) - Sections 104 - Order 39, Rules 1, 2, 2A, 3A, 4 and 10 - Order 43, Rule 1; Constitution of India - Article 227 - Orders from which appeal lies -- When a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the ...

Key legal issue: Service
Acts & sections: U.P. Act No.1 of 1968 - Sections13, 14 ;Uttar Pradesh Urban Planning & Development Act, 1973 ; National Capital Region Planning Board Act, 1985

Parties & Advocates

Appellant / Petitioner

Wing Commander Sanjay Kumar Gaur and Another.

Advocate Vaibhav Raj, Adv.

Respondent

State of U.P. and Others.

Advocate C.S.C. ; D.K.Upadhyay, Adv.

Legal References

Acts: U.P. Act No.1 of 1968 - Sections13, 14 ;Uttar Pradesh Urban Planning & Development Act, 1973 ; National Capital Region Planning Board Act, 1985

Excerpt

[k.t. thomas and; r.p. sethi, jj.] - civil procedure code (cpc) - sections 104 - order 39, rules 1, 2, 2a, 3a, 4 and 10 - order 43, rule 1; constitution of india - article 227 - orders from which appeal lies -- when a plaintiff rushed to the civil court for an ex-parte interimorder of injunction against some of the defendants and obtained it, those defendants rushed to the high court to get that order quashed. appellant-plaintiff filed the suit on 25.6.1999 for a decree of permanent injunction restraining defendant nos.1 to 5 from dispossessing him. documents perused. ad interim injunction till then. order 39 rule 3 to be complied with. after holding thus learned single judge directed the trial court to take up the interlocutory application for injunction and pass orders on merits and in accordance with law expeditiously. order 43 rule 1 says that: an appeal shall lie from the following orders under the provisions of section 104 namely. an order under rule 1, rule 2, rule 2a, rule 4 or rule 10 of order 39. the choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. learned senior counsel for the respondents then contended that an order granting injunction without complying with the requisites envisaged in rule 3 of order 39 be void. learned single judge stated that the trial court ought not to have granted ex parte injunction beyond thirty days to be in force. the aforesaid rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. second is the legal obligation that if for any valid reasons the court could not finally dispose of the application within the aforesaid time the court has to record the reasons thereof in writing......therein simply because he had submitted some plan for approval, when grant of the permission under section15 of the u.p. act is not automatic and the statute permitted amendment of the master plan by change of the land use even thereafter. the mere fact that the area was shown originally as meant for ' recreational' use, shows that reversion to the original land use is equally permitted by the statute. no legitimate expectation of the kind claimed by these private colonisers could arise on these facts and in a situation like this clearly contemplated by the statute itself. 10.as earlier indicated, the decision in food corp. of india vs kamdhenu cattle feed industries clearly says that legitimate expectation does not form an enforceable right to provide an independent ground of challenge. the modified stand taken by the learned counsel for respondents on this aspectis equally met by this proposition. in substance the contention of learned counsel for the respondents is that the planning commitments and the investment made by the two private colonizers confer on them or at least on maha maya the indefeasible right to grant of the permission and sanctioned of their lay-out plan which cannot be defeated by exercise of the power of amendment of the master plan under section 13 of the u.p. act. the fallacy in this contention is that it upgrades the so-called legitimate expectation, assuming it to be so in the present case, to a legallyu nforeseeable right which a legitimate expectation is not, it being merely a part of the rule of nonarbitrariness to ensure procedural fairness of the decision. it is clear that the requirments of public interest can outweigh the legitimate expectation of private persons and the decision of a public body on that basis is not assailable. this contention of learned counsel for the respondents fails.11.before dealing with the remaining submission, it would be appropriate to refer to certain provisions of the uttar pradesh urban planning &.....

Full Judgment

1. Heard learned counsel for parties and perused the pleadings. It appears that a Housing Scheme, known as 'Vyom Khand Yojna', Gomti Nagar, Lucknow, was cancelled on account of a Public Interest Litigation as the area was alleged to be falling in a green belt. Accordingly, the scheme was cancelled and the applicants were refunded the deposits with interest. The petitioner is one of such applicants who has prayed for issuance of

(i) a writ, order or direction in the nature of certiorari for quashing the resolution/decisions of the LDA board dated 13.08.2009 as far as it is related to concellation of allotment of plot of petitioner by summoning the same from opposite parties;

(ii) a writ order direction in the nature of mandamus commanding the opposite parties to revive the Vyom Khand Yojna and to execute the sale deed/registry in favour of the petitioners' for their respective plots allotted in the year 2005 as per the condition of the brochure and as soon as possible or within stipulated time frame as this Hon'ble court may deem fit and proper;

(iii) a writ, order or direction in the nature of mandamus commanding the opposite parties specially the LDA not to take any action for enforcement and implementation of the impugned resolution/decision dated 13.08.2009, and

(iv) any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. As the Housing Scheme itself was cancelled and the deposits were refunded with interest, learned counsel for LDA, Sri.D.K.Upadhyaywhile placing relilance on a judgment of the Apex Court reported in (1994) 4 SCC 42,Ghaziabad Development Authority v. Delhi Auto & General Finance Private Ltd and Others contended that here would be no legitimate expectation on the part of applicants to get allotment under some other schemes also. Paras 8, 10 and 11 of the judgment, being relevant are reproduced here under:-

8. It is difficult to appreciate how the change of the area in the master plan from ' recreational' to 'residential' could give rise to a legitimate expectation in a private coloniser owning land in that area that he could construct a housing colony therein simply because he had submitted some plan for approval, when grant of the permission under Section15 of the U.P. Act is not automatic and the statute permitted amendment of the master plan by change of the land use even thereafter. The mere fact that the area was shown originally as meant for ' recreational' use, shows that reversion to the original land use is equally permitted by the statute. No legitimate expectation of the kind claimed by these private colonisers could arise on these facts and in a situation like this clearly contemplated by the statute itself.

10.As earlier indicated, the decision in Food Corp. of India vs Kamdhenu Cattle Feed Industries clearly says that legitimate expectation does not form an enforceable right to provide an independent ground of challenge. The modified stand taken by the learned counsel for respondents on this aspectis equally met by this proposition. In substance the contention of learned counsel for the respondents is that the planning commitments and the investment made by the two private colonizers confer on them or at least on Maha Maya the indefeasible right to grant of the permission and sanctioned of their lay-out plan which cannot be defeated by exercise of the power of amendment of the master plan under Section 13 of the U.P. Act. The fallacy in this contention is that it upgrades the so-called legitimate expectation, assuming it to be so in the present case, to a legallyu nforeseeable right which a legitimate expectation is not, it being merely a part of the rule of nonarbitrariness to ensure procedural fairness of the decision. It is clear that the requirments of public interest can outweigh the legitimate expectation of private persons and the decision of a public body on that basis is not assailable. This contention of learned counsel for the respondents fails.

11.Before dealing with the remaining submission, it would be appropriate to refer to certain provisions of the Uttar Pradesh Urban Planning & Development Act, 1973 and the National Capital Region Planning Board Act, 1985( referred hereafter as NCR Act).

2. However, Sri D.K.Upadhyay also submitted that the Lucknow Development Authority has proposed, that if such applicants who had applied in 'Vyom Khand Yojna'Gomti Nagar, Lucknow applying some Multi Storied Flats Scheme, they would be given special weight age including some concession in the matter of payments. We appreciate the gesture, shown by the authority, however, in view of the judgment of Supreme Court(supra), since the petitioners have no legal right, we are not inclined to grant the relief as prayed for. Thus, this writ petition is disposed of, while noting the statement of Sri D.K. Upadhyay, learned counsel for the LDA

Same Court & Year Karnataka · 2010 Same Parties Wing Commander Sanjay Kumar Gaur and Another. vs State of U.P... Same Subject Service Same Judge Uma Nath Singh ; Devendra Kumar Arora Acts & Sections U.P. Act No.1 of 1968 - Sections13, 14 ;Uttar Pradesh Urban P...

Service