New Okhla Industrial Development ... vs Kendriya Karamchari Sahkari Grih ...

Background facts in a nutshell are as follows:

Accordingly, payments in respect of such allotments to 1754 persons were accepted. Complaints were received from various persons who alleged that they were in fact members of the respondent-society, but their names were not forwarded by the Society for allotment of plots. In view of these complaints and with a view and intent to check correctness of the membership list, appellant requested Secretary of the respondent-Society on 1.5.1996 to give the following details :

Questioning correctness of the cancellation, certain members of the respondent-society filed a petition before the MRTP Commission. The Association was titled as "Noida Sector 43 Allottees Welfare Association". Initially by order dated 15.5.1988 MRTP Commission granted an order of status quo. Subsequently another petition was filed before the MRTP Commission. Counter Affidavit was filed by present appellant before the Commission indicating as to how massive fraud have been practiced by the respondent. A rejoinder was filed by the appellant. During pendency of the matter before the Commission, a Writ Petition was filed on 19.11.2001 before the Allahabad High Court questioning the decision dated 5.5.1998. On 15.1.2002 the petition before the Commission was withdrawn by the respondent. In the writ petition counter affidavit was filed. Attention was drawn to order dated 7.3.2003 passed by this Court in I.A. No. 18 of 2002 in Civil Appeal No. 5502 of 1983. This court directed the NOIDA to comply with the direction dated 4.4.1991 and to develop and bring before this court a housing scheme for 242 members of the U.P. Residents Society. Rejoinder was filed on 20.7.2003. Though appellant requested for time to file further affidavit and documents prayer was not granted. The High Court reserved judgment on that date and by order dated 5.8.2003 the writ petition was allowed. The judgment is under challenge in this Appeal.

In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition.

Thus, a High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right, question of fact may fall to be determined. Ultimately, the question is one of discretion which is to be exercised in conformity with judicial principles.

The High Court entertained the writ petition on the ground that the present appellant by acting wholly arbitrarily and illegally had discrimination against the writ petitioner. These conclusions were based on no material. On the contrary, the factual scenario as described above goes to show that the respondent-Society was not entitled to maintain a writ petition. Further there was no claim for interest made in the writ petition but the High Court granted interest. Looked at any angle the High Court's order is clearly unsustainable and is set aside. The Writ Petition (Civil) No. 39842 of 2001 filed before the High Court is dismissed.

The appeal is allowed but in the circumstances without any order as to costs.