THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 08.07.2009 + W.P.(C) 686/1992 JASJIT KAUR Petitioner -Versus- REGISTRAR CO-OP. SOCIETY Respondent Advocates who appeared in this case:- For the Petitioner : Mr [ENTITY], Sr. Advocate with Dr [ENTITY], Mr [ENTITY] & Mr [ENTITY]. For the Respondent No.1 : Ms [ENTITY] For the Respondent No.2 : Mr [ENTITY] CORAM:- HON'BLE MR JUSTICE [ENTITY] HON'BLE MS JUSTICE [ENTITY] 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes [ENTITY], J (ORAL)
1. This writ petition has a chequered history. The prayer of course is for allotment of one plot to the petitioner measuring 125 sq. yards in the Hindustan Cooperative House Building at Guru Harkishan Nagar, Paschim Vihar, New Delhi. At present, pursuant to various orders, the petitioner has been allotted one plot measuring 125 sq. yards. The said plot bears No.348. The petitioner has also paid the entire consideration in respect of the said plot. However, pursuant to the orders passed by the Supreme Court, further proceedings such as handing over of possession has not taken place, however the plot has been kept in reserve by respondent No.2.
2. Initially, this writ petition was disposed of by an order dated 16.02.2006. On that date, nobody had entered appearance on behalf of the respondent No.2 Society (Hindustan Cooperative House Building Society). The Division Bench hearing the matter on that date, after hearing the counsel for the petitioner and the counsel for the respondent No.1 (Registrar, Cooperative Societies, New Delhi), allowed the petition and directed the respondent No.1 to forthwith recommend the case of the petitioner for allotment of a plot in category C' of the size of 125 sq. yards.
3. The respondent No.2 filed a review petition being RP No.268/2006. The same was also dismissed by an order dated 19.01.2007.
4. Thereafter, the respondent no.2 took the matter to the Supreme Court by filing a Special Leave Petition being SLP(C) No.9866/2007 which was converted into an appeal after leave was granted and the same was numbered as [CASE NUMBER]. The Supreme Court by virtue of its judgment dated 12.02.2009 in the said [CASE NUMBER] directed that the writ petition needed to be heard by the High Court afresh keeping in mind the aspects of the matter which had been pointed out by the Supreme Court. The Supreme Court had specifically indicated that [SECTION] of the [ACT] (herein referred to as the said rules') had not been considered. The said rule provided for a deemed disqualification and, according to the Supreme Court, this provision had not been examined by this court in its earlier orders dated 16.02.2006 and 19.01.2007. The other aspect which was specifically pointed out by the Supreme Court was the question of alternative remedy being available to the petitioner before it filed the writ petition before the court. The Supreme Court required this court to also examine this aspect of the matter. It is in these circumstances that the matter is once again before this court.
5. The facts are that the petitioner's father Mr [ENTITY] was enrolled as a member of the respondent No.2 Society on 09.11.1960. Sometime in 1962, the said Mr [ENTITY] purchased another plot of land in Green Park Extension, New Delhi measuring about 463 sq. yards. It is an admitted position that prior to the coming into effect of the [ACT] (hereinafter referred to as the said Act') and the said rules made thereunder, there was no stipulation by way of any statute or rules made thereunder with regard to owning more than one plot of land as a pre-condition for membership in this society. Consequently, Mr [ENTITY] continued to be a member of the respondent No.2 society while he, at the same time, held the said plot at Green Park Extension.
6. On 09.05.1972, Mr [ENTITY] made an application to the society for transfer of his membership in the society in favour of his daughter Ms [ENTITY] (the petitioner herein). The transfer was allowed by the Managing Committee of the respondent No.2 society in its meeting held on 05.09.1973. Thereafter, a letter dated 18.11.1973 was issued by the respondent No.2 society in favour of Mr [ENTITY] indicating that his application for transfer of his share in favour of his daughter Ms [ENTITY] had been allowed by the Managing Committee in its meeting held on 05.09.1973. Mr [ENTITY] was requested to return the share certificate and the original receipts issued by the society to enable the society to finalise the transfer. The transfer fee was also paid and was accepted by the society vide letter dated 22.10.1974.
7. At this stage, we may point out that in the meanwhile, the said Rules had come into force on 02.04.1973. [SECTION], as introduced on 02.04.1973, pertains to disqualification of membership and is reproduced hereunder:-
25. Disqualification for Membership
1. No person shall be eligible for admission as a member of a co-operative society if he
(a) has applied to be adjudicated an insolvent or is an undischarged insolvent; or
(b) has been sentenced for any offence other than an offence of a political character or an offence not involving moral turpitude and dishonesty and a period of five years has not elapsed from the date of expiry of the sentence:
(c) in the case of membership of a housing society:
(i) owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free-hold basis or on power of attorney or on agreement for sale:
Provided that disqualification of membership as laid down in [SECTION] shall not be applicable in case of co-sharers of property whose share is less than 66.72 sq. metres of land:
Provided further that the said disqualification shall not be applicable in case of a person who has acquired property on power of attorney or through agreement for sale and on conversion of the property from leasehold to freehold on execution of conveyance deed for it, if such person applies for the membership of the housing society concerned;
(ii) he deals in purchase or sale of immovable properties either as principal or as agent in the Union Territory of Delhi; or
(iii) he or his spouse or any of his dependent children is a member of any other housing society except otherwise permitted by the Registrar.
2. Notwithstanding anything contained in the rules or the bye-laws of the co-operative society, if a member becomes, or has already become, subject to any disqualification specified in [SECTION], he shall be deemed to have ceased to be a member from the date when the disqualifications were incurred.
3. A member who ceases to be a member of a co-operative society under [SECTION], shall not be entitled to exercise rights of memberships or incur liability as member with effect from the date referred to in [SECTION] but as from the date he becomes a creditor of the co-operative society in respect of the amount due to him on account of paid up share capital, deposit, cost of land deposited or any other amount paid by him to the co-operative society as its member. As from the date of his ceasing to be a member or the society under [SECTION], the amount standing to his credit shall be paid to him by the co-
operative society within 3 months and when the co-operative society is already under liquidation, the amount due to him will be credited as a debt due to a third party from the co-operative society.
4. If any question as to whether a member has incurred any of the disqualification referred to in [SECTION] arises, it shall be referred to the Registrar for decision. His decision shall be final and binding on all concerned. The power of the Registrar under this rule shall not be delegated to any other person appointed to assist the Registrar.
8. A perusal of [SECTION] makes it clear that after the said Rules came into force, if a member became or had already become, subject to any disqualification specified in [SECTION], he was deemed to have ceased to be a member from the date when the disqualification was incurred. In the present case, the rule which is to be considered is [SECTION]. The said Rule stipulates that no person shall be eligible for admission as a member of the cooperative society, if he owns a residential house or a plot of land for the construction of a residential house in any of the approved or un-approved colonies or other localities in the National Capital Territory of Delhi, in his own name or in the name of his spouse or any of his dependent children, on lease hold or free-hold basis.
9. It is clear that if [SECTION] were to apply, then the transfer of the membership from Mr [ENTITY] to Ms [ENTITY] would not have taken place inasmuch as Mr [ENTITY] would not have been entitled to retain his membership as he would be under a deemed disqualification in view of the fact that he already owned a residential plot in Green Park Extension, New Delhi. This is one aspect of the matter which, the Supreme Court felt, needed consideration as to whether the deeming clause provided in [SECTION] would come into operation or not. We shall examine this aspect later after completing the narration of facts.
10. Once the transfer of the membership was approved by the Managing Committee, nothing transpired for about five years, i.e., till 1979 when an administrator was appointed in place of the Managing Committee. Upon the administrator taking charge of the respondent No.2 society, the view taken by the administrator was that the petitioner could not be allotted any plot of land unless and until the original allottee, i.e., Mr [ENTITY] gave an affidavit to the effect that he did not own any other plot of land in Delhi. In other words, the administrator was insisting on the application of disqualification prescribed under [SECTION]. The petitioner received a letter on 22.1.1982. The said letter reads as under:-
HINDUSTAN CO-OP. House Building Society Ltd.
Regd. A.D. 922-23, Faiz Road Karol Bagh New Delhi - 110005 Ref No. 156/4005 Dated January, 22, 1982 Smt [ENTITY] 7/6, West Patel Nagar New Delhi Madam,
It appears from the record that share of Shri [ENTITY] son of Shri [ENTITY] was transferred to your name.
As per policy of the Delhi Administration the transfer only to blood relations can be allowed on submission of the Indemnity bonds and the affidavits of the transferer and the transferee. It has been noted that in your case the affidavit of the transferer has not been filed and therefore transfer in your name could not be got approved.
In cases where the transferers affidavits are not filed, it is proposed that the transferees be enrolled fresh member of the society w.e.f. the date of transfer. But before doing so, the resignation from the transferer, the original member, will have to be obtained.
You are, therefore, requested to please arrange to submit the letter of resignation of Shri [ENTITY] s/o Sh. [ENTITY] as per the enclosed proforma and submit your own affidavit (proforma of which is also enclosed herewith) on a non-judicial stamp paper of Rs 2/- duly attested by a Notary Public or a Magistrate I Class.
On receipt of the above documents, your name will be considered for enrolment as stated above and your name will placed in the category C' of 125 sq. yds.
In case these documents are not received by 10.2.82 it will be presumed that you are not interested in the membership of the society.
Yours faithfully Sdxxx Encl 2. [ENTITY]. Secretary
11. A reading of the said letter indicates the following:-
(i) That from the records of the society the membership of Mr [ENTITY] stood transferred to the petitioner;
(ii) As per the policy of the Delhi Administration, the transfer was permissible only to blood relations on submission of indemnity bonds and affidavits of both the transferer and the transferee;
(iii) That the transferer had not filed any affidavit and, therefore, the transfer in the name of the petitioner could not be got approved';
(iv) It was therefore, proposed that the transferee, that is, the petitioner herein be enrolled afresh as a member of the society with effect from the date of transfer but before doing so, the resignation of the transferer, that is, of Mr [ENTITY] would have to be obtained;
(v) On receipt of the said documents, the petitioner's name was to be considered for enrolment as a member and for placing her name in category C' for allotment of 125 sq. yards plot.
12. It appears that, left with no alternative, the petitioner even went to the extent of submitting the resignation letter of her father Mr [ENTITY] and also submitted her affidavit to the effect that she did not own any plot or house in Delhi either in her own name or in the name of her dependents. However, the respondent No.2 kept on insisting that the affidavit of Mr [ENTITY] stating that he did not own any other property in Delhi be filed and unless and until such an affidavit was filed, there was no question of the transfer being recognized or the plot being allotted to her.
13. Being aggrieved by this attitude of the respondent No.2, the petitioner filed the present writ petition. This also raises the second aspect of the matter which the Supreme Court wanted this court to consider and that is the question of alternative remedy. According to the learned counsel for the respondent No.2, the petitioner had the alternative remedy of invoking the provisions of [SECTION] of the said Act and raising the dispute which could thereafter be arbitrated upon. The petitioner has not availed of that alternative remedy and has straightaway come to this court under [SECTION] of the [ACT] and, therefore, the petition ought not to be maintained on this ground also. However, according to the learned counsel for the petitioner, the said alternative remedy was an illusory alternative. According to him, the stand taken by the respondent society was that of the administrator who also held the position of Deputy Registrar in the Office of the Registrar of Cooperative Societies and was under the supervision and control of the Registrar. According to him, it would have been a futile exercise in invoking the provisions of [SECTION] of the said Act inasmuch as, at the very first stage itself, it is the Registrar or Office of the Registrar which has to decide as to whether a reference has to be made or not and the petitioner's case could have easily been thrown out at the threshold itself. It is for this reason that the present petition was filed before this court and the remedy of [SECTION] was not invoked because that was not an efficacious alternative remedy. Apart from this, the learned counsel for the petitioner submitted that over 17 years have elapsed since the filing of the present petition and the said alternative would now definitely not be an equally efficacious remedy. The learned counsel for the petitioner pointed out that this question of alternative remedy was raised by the respondent No.2 for the first time before the Supreme Court. He submits that, in fact, the respondent No.2, despite service of notice, had not entered appearance before this court and had been proceeded against ex-parte.
14. The main issue that arises for our consideration is whether [SECTION] of the said Rules would apply to the application for transfer of membership which was made by Mr [ENTITY] on 09.05.1972. It is clear that when the application was made on 09.05.1972, neither the said Act nor the said Rules were in operation. What was in operation was known as the [ACT] and the rules made in respect of Delhi were known as the [ACT], and neither of them prescribed any disqualification such as the disqualification stipulated in [SECTION]. In other words, prior to the enactment of the said Act and the framing of the said Rules, there was no stipulation under the [ACT] or the 1950 Rules whereby a member of a society, unless the bye-laws of the particular society itself so stipulated, was prevented from holding the membership on the ground that he owned other property in Delhi. Such a stipulation, as a part of the Act or Rules framed thereunder, came into operation for the first time when the said Rules came into force, that is, on 02.04.1973, there was no such stipulation even in the said Act which had come into force earlier. It has only come by way of the rules framed thereunder, which we have already indicated, came into operation on 02.04.1973. The issue that requires to be considered is whether the said Rules would apply to the application which was pending on the date on which the said Rules came into force.
15. We have considered the arguments advanced by the counsel for the parties. The learned counsel for the petitioner submitted that the law that would be applicable would be the law which was prevalent on the date on which the application was made and not on the date on which the application was ultimately decided. Thus, according to the learned counsel for the petitioner, the applicable law would be the law prevalent on 09.05.1972 and not the law which was prevalent on 05.09.1973 when the Managing Committee approved the transfer. On the other hand, the learned counsel for the respondent No.2 submitted that the law that would be applicable would be the law that was prevalent on the date on which the transfer was made. Thus, according to him, the transfer would have to be judged from the stand point of the Rules which had already come into force on the date on which the transfer was approved. It was his case that the transfer could not have been carried out inasmuch as by virtue of the deeming provisions of [SECTION] Mr [ENTITY] could not have continued as a member of the society after 02.04.1973 in view of the fact that he owned a plot in Green Park Extension. Thus, since he could not have continued as a member and was disqualified as a member, there was no question of his membership' being transferred to the petitioner.
16. The learned counsel for the respondent No.2 drew our attention to three decisions of this court. Two decisions were of Division Benches which had taken conflicting views on the question of further [SECTION] was retrospective or prospective in operation. The two Division Bench decisions were:-
1. [PRECEDENT] ; and
2. [PRECEDENT].
This controversy between the two Division Benches was resolved by a Full Bench decision in the case of [PRECEDENT].
17. The Full Bench was of the view that [SECTION] was not retrospective. It clarified that the effect of [SECTION] is that it operates in the future though the basis of taking action is the factum of acquiring a plot in the past. This observation was made in the context of the petitioner who was a member of the society and continued to be a member of the society when the said Rules came into operation. His disqualification was considered even after the application of the said Rules on the basis of the fact that he had already acquired a plot of land prior to 02.04.1973 when the said Rules came into operation. The Full Bench was of the view that the factum which was relevant was that he already had a plot of land before the Rules came into operation and that consideration of this fact did not amount to make the provision retrospective. The Full Bench was of course of the view that the Rules were prospective in operation and were not retrospective. Relying upon this, the learned counsel for the respondent No.2 submitted that in the present case also since the application for transfer was pending on the date when the Rules came into operation, the disqualification prescribed under [SECTION] would apply to Mr [ENTITY] and although the rule would not have retrospective operation the factum that Mr [ENTITY] had another plot in Delhi could be considered and this would not be regarded as a retrospective application of the rule.
18. On the other hand, the learned counsel for the petitioner placed reliance on the decision of the Supreme Court in the case of [PRECEDENT] for the proposition that when an application is made, the law that would govern the application will be the law that was applicable on the date when the application was made. He also relied upon the said decision for the proposition that an authority to which an application is made cannot keep it pending and then penalise the applicant for such delay/pendency.
19. He also placed reliance on [PRECEDENT] Vs. Director of Education & Anr.:
AIR 1983 SC 1143 = (1983) 3 SCC 33 for the proposition that, if, during the pendency of an application, the law is changed or a new law is introduced, the changed or new law will not affect the application and that such an application would continue to be governed by the law on the date when the application was made unless and until the changed or new law specifically provides that pending matters would also be covered by the changed or new law. Reliance was also placed on [PRECEDENT] and [PRECEDENT].
20. In [PRECEDENT] (supra), the issue related with the question of the date on which the conversion charges were to be levied. In that case, an application had been filed on 27.02.1981 for conversion of user of the land in question from residential to commercial. The application was pending till 12.01.1984. The question arose as to whether the conversion charges as on 27.02.1981 would be leviable or conversion charges for the period after 27.02.1981 and upto 12.01.1984 could also be collected. In this context, the Supreme Court held as under:-
There is no explanation given by the appellants as to why the application made by the respondents of February 27, 1981 was not replied to till January 12, 1984. Hence in the absence of anything else on records, it will have to be held that the date with reference to which conversion charges have to be counted is 27 th February, 1981.
The authority has calculated additional premium with reference to May 27, 1981 on the footing that the outer limit for granting permission was three months from the date of the receipt of the application. There is no justification for the authority to hold thus, for they are expected to process the application as early as possible and not to wait till the end of three months. Unless there are valid reasons for them to do so or the delay is caused on account of an omission or commission on the part of the applicants, it is not proper to take the end of the three months as the date with reference to which the conversion charges should be calculated
In the view we have taken, we direct that the additional premium should be calculated by the appellants on the basis of the rate which was prevalent as on February 27, 1981 which is the date of the application made for the change of the user.
21. It is apparent that the Supreme Court was of the view that the date of reference for the purposes of conversion charges would be 27.02.1981 and not the subsequent period. In other words, the Supreme Court took the view that it was the date of application which was relevant and not the fact that the application was decided later and had been kept pending by the authority concerned. Similarly, in the present case, Mr [ENTITY] had made an application for transfer on 09.05.1972. If the application had been considered on that date or shortly thereafter, there would have been no impediment in the transfer of the membership from Mr [ENTITY] to his daughter Ms [ENTITY] in view of the fact that the disqualification prescribed under [SECTION] under the said Rules came into operation much later, that is, on 02.04.1973. The mere fact that the application was kept pending and came to be decided on 05.09.1973, when the Managing Committee gave its approval to the transfer, cannot be taken as a factor to the detriment of the petitioner. Therefore, the applicable law would have to be that which was prevailing on the date of the application, that is, 09.05.1972.
22. In [PRECEDENT]'s case (supra), the Supreme Court was considering the question of selection of the Principal of Ranikhet Intermediate College. The process of selection commenced in 1973 and while this process was on, the law relating to appointments was amended on 18.08.1975 whereby the power of the Director of Education to make such appointments was taken away. In the case before the Supreme Court, the appointment was ultimately made by the Director of Education even after the amending Act had come into force. The challenge was on the ground that after the amendment had come into force the Director of Education did not have the power to make the appointment of the Principal. The counter argument was that the process of selection of the Principal was initiated prior to the introduction of the amendment and, therefore, the law which was prevalent on the date of application would apply. In this context, the Supreme Court observed as under:-
It is no doubt true that the Act was amended by [ACT] which came into force on August 18, 1975 taking away the power of the Director to make an appointment under [SECTION] of the Act in the case of minority institutions. The amending Act did not, however, provide expressly that the amendment in question would apply to pending proceedings under [SECTION] of the Act. Nor do we find any words in it which by necessary intendment would affect such pending proceedings.
It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.
Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned Counsel for the appellant that the law as amended by the [ACT] should have been followed in the present case.
23. From the above abstract, it is clear that the Supreme Court was of the view that the proceedings which had been initiated prior to the amendment had to be continued in accordance with the law as it stood at the commencement of the said proceedings. Similarly, in the present case, the application had been filed on 09.05.1972 and the application was pending when the said Rules and, in particular, [SECTION] came into operation on 02.04.1973. Thus the approval of transfer given on 05.09.1973, although it is subsequent to the date on which the Rules came into force, would be viewed in the light of the law as prevailing on 09.05.1972, that is, on the date of the application. In so far as the question of retrospectivity is concerned, that issue also stands settled by the Full Bench decision in [PRECEDENT] (supra) where the court, while considering [SECTION] itself, concluded that it was not retrospective in operation but prospective.
24. We may also note the Supreme Court decision in [ENTITY]'s (supra) which held that ordinarily the rights of the parties to litigation stand crystalised on the date of the commencement of lis. Taking a cue from this observation also, it is clear that the right to seek transfer insofar as Mr [ENTITY] was concerned stands crystalised when he moved the application for transfer of membership in favour of his daughter Ms [ENTITY] on 09.05.1972. Unless there is any specific indication in the subsequent law, the position as obtaining on the date of the application would be applicable. We have already seen that the said Rules and, in particular, [SECTION] has been held to be prospective and not retrospective by the said Full Bench decision in the case of [PRECEDENT] (supra). Thus, viewed from any angle, the conclusion is inescapable that the application dated 09.05.1972 has to be considered in the light of the law as prevailing on that date. If that position is taken, then there is nothing wrong in the approval granted by the Managing Committee on 05.09.1973. This being the position, the transfer would relate back to the date of the application and, therefore, on and from 09.05.1972, the membership of Mr [ENTITY] stood transferred to the petitioner, Ms [ENTITY]. We may also note, at this point, that even the letter dated 22.01.1982, which has been extracted above, acknowledges the fact that the petitioner had been recorded as a member in the records of respondent No.2 society. Thus, the transfer had been completed on 09.05.1972 and, therefore, [SECTION] would apply to the petitioner and not qua Mr [ENTITY]. Insofar as the petitioner is concerned, she does not suffer from any disqualification as stipulated in [SECTION] and she has also submitted an affidavit to the effect that neither she nor any of her dependents own any property, either lease hold or free hold, in Delhi. In these circumstances, there is no impediment in the allotment of a plot to Ms [ENTITY].
25. In passing, we may also note the provisions of [SECTION] of the said Act which read as under:-
"98. Repeal and Savings On the day on which the [ACT] comes into force, the [ACT] as in force in the Union Territory of Delhi shall stand repealed:
Provided that the repeal shall not affect-
a. the previous operation of the Act so repealed or anything duly done or suffered there under; or b. any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or c. any penalty, forfeiture or punishment incurred in respect of any offence committed against the Act so repealed; or d. any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if that Act had not been repealed. Clause (b) of the proviso specifically stipulates that the repeal of the [ACT] which was in force in the Union Territory of Delhi shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed. It is also stipulated in the said proviso that the repeal would not have any effect on any such investigation, legal proceedings or remedy that may have been instituted, continued or enforced under the earlier Act.
26. A reading of this repeal and saving' clause provided in [SECTION] of the said Act makes it clear that the rights and privileges which have been acquired under the earlier Act would continue to be available. It is also clear that the repealing Act did not, in any way, obliterate those rights and did not make the provisions retrospective. Consequently, the rights and privileges which had been acquired by Mr [ENTITY] for seeking transfer of the membership in favour of his daughter prior to the introduction of the new Act and Rules was not taken away but was specifically saved by [SECTION] of the said Act.
27. This takes us to the second point which needs consideration and that is the question of availability of an alternative remedy. It is a settled position in law that whenever there is an alternative remedy available, this court does not normally entertain petitions under [SECTION] of the [ACT]. But, it is not a rule that in case there is an alternative remedy available, a writ petition is not maintainable on this ground alone. Courts have entertained writ petitions even when alternative remedies were available. It is only as a rule of prudence and self-restraint that the High Court does not entertain petitions under [SECTION] when an alternative statutory remedy is available [See: [PRECEDENT] (para 17)]. It may be pointed out that in the present case, the circumstances as indicated by the learned counsel for the petitioner reveal that the alternative remedy of [SECTION] was, at the time when the writ petition was filed, not an efficacious alternative remedy. This is so because the authorities which were concerned with making a reference under the said provision were the very same authorities requiring Mr [ENTITY] to file the said affidavit. In any event, after 17 years, it would not be proper on our part to non-suit the petitioner on the ground of availability of an alternative remedy. It is for this reason that we feel that the alternative remedy, if at all, is not an equally efficacious remedy and, therefore, we cannot hold that the present writ petition is not maintainable on that ground.
28. Consequently, we allow this writ petition and direct that plot No.348 admeasuring 125 sq. yards, which had already been allotted to the petitioner, be handed over to the petitioner. We direct the respondents to execute the sub-lease in favour of the petitioner forthwith. The parties shall bear their own costs.
[ENTITY], J [ENTITY], J JULY 08, 2009 gm