2025:UHC:5403-DB HIGH COURT OF UTTARAKHAND AT NAINITAL JUSTICE SHRI MANOJ KUMAR TIWARI AND JUSTICE SHRI SUBHASH UPADHYAY Special Appeal No.227 of 2015 June 25, 2025 Hardeep Singh … Appellant Versus State of U.P. & Ors. … Respondents --------------------------------------------------------------------------------- Presence:- Mr. Harsh Rautela, Advocate holding brief of Mr. Shobhit Saharia, Advocate for the appellant. Mr. I.D. Paliwal, Standing Counsel for the State of U.P./respondent no.1. Mr. B.S. Adhikari, Advocate for respondent nos.2, 3 and 4. ---------------------------------------------------------------------------------- The Court made the following: JUDGMENT: (per Hon’ble Justice Sri Manoj Kumar Tiwari) 1. This intra-court appeal is directed against the judgment and order dated 29.04.2015 rendered by learned Single Bench in Writ Petition No.300 (M/S) of 2013. By the said judgment, writ petition filed by the appellant, challenging the communication dated 13.02.2013 issued by Commissioner, Housing, was dismissed. Relevant portion of the impugned judgment is extracted below:- “As discussed hereinbefore, there is no dispute between the learned counsel for the parties that as per Regulation No. 34, every application seeking allotment of the plots or residences shall be invited by way of publication and allotment shall be made 1 2025:UHC:5403-DB by way of lottery. As per Clause (3) of Regulation 34, only small portion of left over land may be allotted by the Housing Commissioner directly by exercising his discretion. In my humble opinion, Clause (3) of Regulation 34 was inducted with a view or in other words can be understood to mean that if after carving out different plots, small piece of land is left over, then it can be allotted in favour of the allottee of the neighbouring plot by the Housing Commissioner by exercising his discretion. Undisputedly, Plot No. 101, property in question, is a commercial plot, measuring about 1500 sq.m. It is not a small piece of left over property, therefore, it cannot be reserved or allotted by the Housing Commissioner in violation of Regulation 34. Plot, in question, can be allotted only by way of inviting applications from the general public that too thereafter by lottery. Since reservation made in favour of the petitioner on 20.11.2013, annexure No. 3 to the writ petition, is in violation of Regulation 34, therefore, same can very well be said against the public policy too. There is another aspect of the matter. As per Article 14 of the Constitution of India, State or instrumentality of the State cannot act arbitrarily and action of the Housing Commissioner making reservation in favour of the petitioner without adopting procedure prescribed under Regulation 34, on the face of it, is arbitrary and against the public policy. Consequently, it was barred by Section 23 of the Contract Act. Therefore, it was not valid agreement of reservation as per Section 10 of the 2 2025:UHC:5403-DB Contract Act. Consequently, cancellation thereof by the impugned order cannot be faulted with. This is settled position of law that no order should be quashed on hyper technical ground which would result into revival of any illegal order. In my opinion, even if it is held that petitioner was not heard or was not given any opportunity of hearing before passing the impugned cancellation order, quashing of this order on that ground would amount to restoration of illegal reservation made in favour of the petitioner which itself is not valid as per Sections 10 and 23 of the Indian Contract Act. 7 Therefore, writ petition fails and is hereby dismissed.” 2. The Communication dated 13.02.2013 issued by Commissioner, Housing, which was impugned in the writ petition, provides that the amount of Rs. 24.00 Lacs deposited by the appellant for reserving a piece of land in his favour, shall be returned to him and the earlier order passed by Commissioner, Housing, on 20.11.2012, accepting the offer made by the appellant, is cancelled. 3. It transpires that an injunction suit was filed by one Mr. Har Prasad Sah against U.P. Avas Vikash Parishad, which was pending in the court of Civil Judge (J.D.), Haldwani, Nainital. In the said suit, Mr. Har Prasad Sah was claiming to be the owner of land comprised in plot no.101, situated in a colony developed by U.P. Avas Vikash Parishad, referred as Yojna III. 4. Petitioner made an offer to U.P. Avas Vikash 3 2025:UHC:5403-DB Parishad that he will look after the litigation and after the case is decided in favour of U.P. Avas Vikash Parishad, the land regarding which the suit was pending, should be allotted to him and he expressed willingness to pay Rs. 5.00 Lacs, above the prevailing price of the land as per current circle rate. The said offer was initially accepted by Commissioner, Housing and the appellant was asked to deposit 10% of the market value of the land, as per circle rate and, in response to the counter-offer made by U.P. Avas Vikash Parishad, appellant deposited Rs. 24.00 Lacs and the plot was reserved in favour of the appellant. 5. Order of reservation made in favour of the appellant was challenged in Writ Petition No.95 (M/S) of 2013 by one Shri Yamuna Dutt Sanwal and during pendency of that writ petition, Commissioner, Housing passed the communication dated 13.02.2013, which was impugned in the writ petition. 6. Learned Single Judge, after considering the provisions of Indian Contract Act and also the provision contained in Regulation 34 of U.P. Avas Vikash Parishad (Registration and Allotment of Plots and Houses), Regulation, 1979, held that the reservation made in favour of the appellant was against the public policy and was also violative of provision contained in Regulation 34 of the aforesaid Regulations. It was further held that the allotment of plots/houses has to be made, by draw of lots, after inviting applications from general public. Thus, the challenge thrown by the appellant to the communication dated 13.02.2013 was found to be without substance by 4 2025:UHC:5403-DB learned Single Judge. 7. We concur with the reasoning given by learned Single Judge. U.P. Avas Vikash Parishad is a statutory authority, established under the provisions of U.P. Avas Evam Vikash Parishad Adhiniyam, 1965, therefore, the statutory authority cannot make allotment of land in favour of private individuals by private negotiations or in the manner, as it was done, in the present case. Thus, there is no scope for interference with the impugned judgment. 8. At this stage, learned counsel for the appellant submits that the appellant had deposited a sum of Rs. 24.00 Lacs in the year 2012, therefore, appellant is entitled to interest on the said amount, which is still lying with U.P. Avas Vikash Parishad. 9. Without expressing any opinion on the merit of the claim staked by the appellant, we dispose of the appeal with liberty to the appellant to make representation regarding refund of the amount with interest. If he makes such representation within two weeks from today, the Competent Authority in U.P. Avas Vikash Parishad shall examine the matter and take decision, within four months thereafter. (Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.) 25.06.2025 25.06.2025 Rajni 5 RAJINI GUSAIN Digitally signed by RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db48448ac3 701a9ae475a2547e4b7f1d9b1f17d01342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4DF4F C80D4557562F95BEBA013F530616A158A0A8 78BD8, cn=RAJINI GUSAIN Date: 2025.06.29 21:27:35 -07'00'