Judgment reserved on 01.12.2009
Judgment delivered on 25.01.2010
Civil Misc. Writ Petition No.23579 of 1997
Yamaha Vihar Sahkari Avas Samiti & Anr.
Vs.
Chief Executive Officer, New Okhla Industrial Development
Authority & Anr.
Hon. Sunil Ambwani, J.
Hon. Virendra Singh, J.
Heard Shri Pradeep Kumar, learned counsel for the
petitioner. Shri Ramendra Pratap Singh appears for New Okhla
Industrial Development Authority.
The petitioner is a cooperative housing society, registered
with Housing Commissioner U.P. Awas Evam Vikas Parishad
Lucknow with registration No.1786 dated 1.9.1992. It is stated
that the society has 250 members joined together for providing
residential houses to them. The society has allotted the land to
provide housing facilities to its 200 members working in the
Yamaha Motor Company Ltd. situate in Surajpur Tehsil Dadri
Distt. Gautam Budh Nagar. The land was purchased by initially
entering into an agreement of sale dated 31.7.1992 with Bhim
Singh, Dharmvir Singh and Dharmpal Singh sons of Bhura Singh
and Badlu son of Thana Singh of Village Barola, Pargana and
Tehsil Dadri, Distt. Ghaziabad, Gautam Budh Nagar for sale of
their ½ share in Khasra No.1142 to 1154 measuring 3 bigha 10
biswa and 6 biswansis for a sum of Rs.26,90,250/-. Similar
agreement was also entered into with one Rishal son of Hari Ram
for 3 bigha 6 biswa pakka in Khasra Nos.1114, 1115, 1116 and
1117 in Village Barola, Tehsil Dadri, Distt. Gautam Budh Nagar
adjacent to plot Nos.1142 to 1154 for Rs.2,40,975/-. The entire
sale consideration was paid and the land owners executed sale
deeds in the year 1995-96 on which the petitioner society became
owner and got its name entered into revenue records. The land is
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recorded as residential in revenue records with some existing old
constructions.
The petitioner society had earlier filed Writ Petition
No.37058 of 1992 for a direction to the Noida not to interfere in
its rights to develop the land. The writ petition was disposed of
with following directions:-
“Petitioner has submitted a lay out plan. Since no
order has been passed, petitioner rushed to this Court by
means of this petition. Since considerable time has
elapsed, respondents are directed to consider the matter of
the petitioner within one month from the date of service of
a certified copy of this order upon him.
With the above direction the petition is disposed of.
Dt.22.10.92
sd/-V.N.K.
sd/-D.P.S.C.”
The Officer on Special Duty Noida informed the petitioner
in response to their application dated 28.10.1992 under Chapter II
Regulation 5 of Noida Building Regulations that the petitioner’s
application has been rejected on the ground that the plots in
dispute have also been acquired by Noida, and that the land is in
the possession of the authority and Noida authority had paid total
compensation to the District Magistrate/ Administration,
Ghaziabad.
The Society again filed a Writ Petition No.666 of 1993
challenging the decision of Noida dated 1.12.1992 rejecting the
building plan. The writ petition was dismissed on the ground of
alternative remedy to file an appeal under Regulation 17 of the
Noida Building Regulations. In the meantime, the petitioner was
informed by the CEO, Noida that in the letter dated 1.12.1992 in
reply to the petitioner’s application Khata Nos./1142 to 1154 and
1114 to 1117 in Village Barola, Tehsil Dadri were wrongly
mentioned to be acquired. The land falls within the notified area
of the Government authority and as such the petitioner society
cannot be permitted to change the land use. The letter was
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incorporated in appeal filed by the society. At the time of
hearing of the appeal the Executive Officer, Noida was required to
give a complete report to the actual position of the land purchased
by the society. The Executive Officer, Noida issued certificates
stating that plot Nos.1114 to 1117, 1136/1, 1137/2 and half of plot
No.1142 and 1154 are not acquired nor there is any proposal to
acquire the land. The plots are situate in old abadi of village and
that there are some old and new constructions on the land. It is
stated in para 24 of the writ petition that after receiving letter of
the Administrative Officer dated 31.12.1994 as aforesaid the
society carved out and allotted the plots to its members. They
withdrew the money from their provident fund account and
constructed their houses. Out of 200 allottees about 40 members
have completed constructions and 50 had partly completed
constructions in the year 1997, when the writ petition was filed.
The notice dated 13.3.1996 was received by the Secretary of the
Society from the Secretary, Noida as a surprise to show cause as to
why the constructions raised by the society on plot Nos.1150,
1152, 1153 and 1154 area 9 bigha 4 biswa 10 biswansis has been
covered by illegal constructions. The land falls in the notified area
of Noida on which no permission was given by the authority for
raising constructions. The petitioner filed a third writ petition
No.19284 of 1996 with a prayer to issue writ of mandamus
restraining the respondents from demolishing the constructions on
11.6.1996. During vacations an order was passed as follows:-
“Issue notice.
Until further orders of this court the petitioner
construction if they exist over plot Nos.1114 to 1117 and
half shares of plot Nos.1142 to 1154 over which there is
abadi situated in village Baraula Tehsil Dadri District
Ghaziabad shall not be demolished provided the
notifications for acquisition of these plots have not already
been issued. In case the plots have been acquired by the
respondents, this order shall not be operative.
Sd/-S.C. Verma
11.6.1996″
4
On 23.7.1996 a Division Bench disposed of the writ
petition restraining the respondents from taking any coercive
steps until the petitioners’ representation dated 15.4.1996 and
3.5.1996 are decided. The order is quoted as below:-
“The petition is taken up in the revised list. None
appears to press petition. By this petition, the petitioners
seek a writ of mandamus directing the respondents not to
demolish any construction of member of the petitioner’s
society existing on plot Nos.1114 to 1117 and ½ shares of
plot Nos.1142 to 1154 situated in village Baraula Tehsil
Dadri, District Ghaziabad.
The petitioners have already submitted their
representation dated 15.4.1996 and 3.5.1996. thus it is
directed that before taking anfy coercive steps for
demolition the representations submitted by the
petitioners be decided in accordance with law and only
thereafter necessary steps be taken, if need be for
demolition.
With the direction, this petition is disposed of
finally.
Interim order if any stand vacated.
Sd/- B.M. Lal
Sd/- J.S. Sidhu
23.7.96″
The Noida authorities verified from the Yamaha Motors
and were informed that constructions of the members of the
society were raised by taking loans from their provident fund
accounts. The Noida authorities, however, passed an order on
23.6.1997 that the land is not only situate in notified area of Noida
but that proposals for acquisition of the land have also been sent to
the A.D.M. (Land Acquisition), Noida to acquire the land for
planned development and to carve out Sector 49. In the revenue
records nature of the land is agriculture and that any other activity
is prohibited under the provisions of U.P. Industrial Area
Development Act, 1976. The land is earmarked for planned
industrial development by NOIDA. The society has purchased
agricultural land and not abadi land on which the constructions
are not permissible under law. The representation was accordingly
5
rejected giving rise to this writ petition. On 23.3.1996 this Court
passed following order:-
“Until further orders of this Court members of the
petitioner No.1 society shall not be dispossessed from the
land in dispute.”
The New Okhla Industrial Development Authority filed
Special Leave Petition (Civil) No.6842 of 1999. It was withdrawn
by Noida on 12.5.1999. The order of the Supreme Court is quoted
as below:-
“Learned counsel for the petitioner states that he
will apply to the High Court by separate application
praying for stay of the construction activities being carried
on by the members of respondent-Society. The petitioner is
accordingly permitted to adopt that course.
The SLP is dismissed as withdrawn.”
A stay modification application was filed by the Chief
Executive Officer, Noida to restrain the petitioner from raising
constructions over the plots in dispute. The application is still
pending and has not been decided. The matter went out of the list
from 11.3.1999 for 9 years upto 18.2.2008 and was thereafter
dismissed for want of prosecution on 4.5.2009 and restored on
09.10.2009. On 24.11.2009 the counsel for the petitioner sent
illness slip and that on 1.12.2009 after hearing learned counsel for
the parties, the judgment was reserved.
The supplementary counter affidavit of Shri R.N.
Srivastava was filed on 21.5.2002 stating therein that the disputed
land is sought to be acquired for planned industrial development/
commercial development by Noida for which a notification under
Section 4 (1) read with Section 17 (1) has been published on
17.4.2002 for an area of 111.847 hects. of agricultural land of
village Barola including khasra Nos.1142 to 1154 area 3 bigha 10
biswa and 6 biswansis and khasra Nos.1114, 1115, 1116 and 1117
area 3 bigha 6 biswa. In the supplementary rejoinder affidavit
filed on 8th July, 2008 it is stated that the notification under
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Section 6 has not been issued. There are applications filed in the
year 1997 and an expedite application filed in 1999 by Noida to
expedite the hearing of the writ petition. The counsel appearing
for petitioners and office was not in a position to explain as to why
the matter has not been listed for almost 9 years. Shri Ramendra
Pratap Singh appearing for Noida is also not in a position to
explain the Court as to why in spite of a request made to him to
find out status of the land acquisition proceedings on 24.11.2009.
We are, therefore, proceeding to decide the case on the basis of the
material available on record.
In the counter affidavit of Shri Praveen Singh, Naib
Tehsildar, Noida Authority, Noida it is stated that Writ Petition
No.37058 of 1992 was disposed of with directions to decide
petitioner’s representation and that Writ Petition No.666 of 1993
was dismissed on the ground of alternative remedy of filing an
appeal under Section 17 of the Building Regulations applicable to
Noida. The petitioners filed third writ petition No.19284 of 1996,
which was disposed of with directions to decide the representation
dated 15.4.1996 and 3.6.1996. The petitioners have also filed
civil suit No.1288 of 1996, which is pending disposal in respect of
same land. It is stated by him that the land falls within the area
notified for industrial development under the U.P. Industrial Area
Development Act, 1976 and falls in Sector 49 Noida. In the
revenue records the land is entered as agricultural land. No one is
permitted to change the nature of the land. The petitioners
illegally purchased it for residential purposes. The petitioner
society was never granted permission to raise constructions. The
lay out plan was rejected and no individual plan has been
submitted or sanctioned by Noida. The building regulations have
no application in the area, which has been notified. These
regulations are applicable only in respect of plots allotted to the
allottees by Noida. The Officer on Special Duty has corrected the
error in his letter dated 30.4.1993, and had informed the petitioner
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that the plots have not been acquired but that no development was
possible and thus the plots as they were included in the notified
development area vide notification dated 17.4.1976 (para 17 of the
counter affidavit).
In para 22 of the counter affidavit it is stated that proposal
for acquisition of 254.92 acres of land was sent on 29.6.1994 and
that the letter dated 31.12.1994 for the same proposal appears to
be forged document. The letter dated 31.12.1993 of the
Administrative Officer cannot be treated as no objection
certificate.
The factual position emerging from the affidavits on record
is that the land in dispute is recorded in the revenue records as
agricultural land. There is no material to show that the petitioner
society had applied and was recorded as owner of the land in
revenue records. The application for permission for development
of the land with lay out plan was rejected on 23.6.1997 in
pursuance to the directions of this Court. There is nothing on
record to show that any appeal was filed or that the building
regulations are applicable to the agricultural area. The land in
dispute falls in the notified development area of the New Okhla
Industrial Development Authority constituted under the U.P.
Industrial Area Development Act, 1976. The constructions have
not been raised by the petitioner society or its members after
sanction of lay out plan and individual plan for construction of
houses under Section 9 of the Act. The land was proposed to be
acquired by including the plots in the total area of 111.84 7 hects.
for which notification under Section 4 (1) read with Section 17 (1)
and 4 was published on 17th April, 2002. There is nothing on
record to demonstrate that this land was, thereafter, acquired by
the State for Noida by issuing notification under Section 6 of the
Act.
The petitioners have prayed for directions to quash the
order dated 23.6.1997 and for further directions not to demolish
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the constructions existing on the plots. We do not find any error
of fact or law in the order dated 23.6.1997 passed by Shri Ravi
Mathur, Chief Executive Officer, Noida rejecting the
representation dated 15.4.1996 and 3.6.1996 of the petitioner
society. We also do not find any good ground to justify to issue
writ of mandamus directing the respondents not to demolish any
constructions of members of the petitioner society on the land in
dispute. Even if the land was not acquired by the State, the
constructions were raised without seeking permission. The
petitioner has no right to claim any protection for such illegal
constructions.
The writ petition is dismissed.
Dt.25.01.2010
SP/