{"id":133630,"date":"2010-07-29T00:00:00","date_gmt":"2010-07-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-n-p-singh-vs-state-of-u-p-and-others-on-29-july-2010"},"modified":"2016-06-24T17:28:24","modified_gmt":"2016-06-24T11:58:24","slug":"shri-n-p-singh-vs-state-of-u-p-and-others-on-29-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-n-p-singh-vs-state-of-u-p-and-others-on-29-july-2010","title":{"rendered":"Shri N.P. Singh vs State Of U.P. And Others on 29 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Shri N.P. Singh vs State Of U.P. And Others on 29 July, 2010<\/div>\n
                                        1\n                                                                       A.F.R.\n                                                                     Reserved\n\n                Civil Misc. Writ Petition No. 36421 of 2009\n\n                                      ****\n\n                               Shri N.P. Singh\n                                      Vs.\n                             State of U.P. & Anr.\n\nAppearance :\n\n             For the Petitioner      : Shri N.P. Singh, in person\n\n             For the Respondents : Shri Ravindra Kumar, Adv.\n                                   Shri Ramendra Pratap Singh, Adv.\n\nHon'ble Ferdino I. Rebello, C.J.\nHon'ble A.P. Sahi, J.\n<\/pre>\n
      (Delivered by : Justice Ferdino I. Rebello, C.J.)<\/p>\n
      Rule. By consent heard forthwith, as the pleadings are complete.<\/p>\n
2.    The petitioner, a practicing Advocate, resident of Noida, has<\/p>\n
approached this Court by way of this petition and prayed that the petition<\/p>\n
may be treated as a public interest litigation.\n<\/p>\n
3.    It is the petitioner’s case that the action of respondent no.2 in allowing<\/p>\n
the   private    builders\/individuals\/corporates\/private    companies\/limited<\/p>\n
companies or their consortium to seek allotment of Group Housing Plots to<\/p>\n
raise construction thereon and to sell to the general public at higher price for<\/p>\n
their commercial gain, is contrary to the Scheme of the Act. The Authority<\/p>\n
under the Act was constituted not to benefit the private builders to multiply<\/p>\n
their income but to help the citizens to have their houses or flats at<\/p>\n
affordable rates. The Authority was created under the provisions of the U.P.<\/p>\n
Industrial Development Authority Act, 1976 (hereinafter referred to as the
\n                                       2<\/span>
\n‘Act’), which provides for constitution of an Authority for development of<\/p>\n
certain areas in the State into industrial and urban township and for matters<\/p>\n
connected therewith. The respondent No.1 enjoys eminent domain over the<\/p>\n
land falling in the notified area of Noida and acquired the same for public<\/p>\n
purpose by following the procedure laid down under the Land Acquisition<\/p>\n
Act, 1894. According to the petitioner, the respondents, in active connivance<\/p>\n
with private builders, have allowed them to exploit the real estate market in<\/p>\n
Noida by permitting the private builders to seek allotment of Group Housing<\/p>\n
Plots for their commercial gain. The respondents, in order to help private<\/p>\n
builders, are compromising\/relaxing the building norms and development<\/p>\n
norms as envisaged in the Master Plan of Noida – 2021 without any<\/p>\n
authority and in contravention of Master Plan – 2021.<\/p>\n
4.    By the present petition, the petitioner is challenging the Scheme<\/p>\n
known as ‘Scheme for Allotment of Group Housing Plots, Scheme Code GH<\/p>\n
– 2009 (II)’, whereby the private builders have been permitted to bid for<\/p>\n
large Group Housing Plots in Sectors 45, 121 and 137 by excluding others<\/p>\n
from participating in the bid.\n<\/p>\n
5.    The Authority, in exercise of powers conferred by the Act, has made<\/p>\n
Regulations for the purposes of proper planning and development of Noida,<\/p>\n
known as the ‘New Okhla Industrial Development Area (Preparation and<\/p>\n
Finalization of the Plan) Regulations, 1991 (hereinafter referred to as the<\/p>\n
‘Regulations 1991’), which was notified in the Gazette of U.P. on<\/p>\n
08.06.1991. Consequent to promulgation of Regulations 1991, the Authority<\/p>\n
was entrusted with the duty to prepare a plan and for that, the Authority<\/p>\n
employed a Committee of the School of Planning and Architecture, New
\n                                        3<\/span>
\nDelhi to prepare the Master Plan of Noida – 2021, which has been prepared.<\/p>\n
As per the development plan, according to the petitioner, the residential<\/p>\n
sectors are to be developed in varying densities. There are various use zones<\/p>\n
classified in seven categories, of which one is residential. The residential<\/p>\n
zone has been classified into 4 use zones, which are:-<\/p>\n
              1. R1 – Low Density Residential upto 200 ppha.\n<\/p><\/blockquote>\n
              2. R2 – Medium Density Residential above 200 upto 400<\/p>\n
                 ppha.\n<\/p><\/blockquote>\n
              3. R3 – High Density Residential above 400 ppha upto 600<\/p>\n
                 ppha.\n<\/p><\/blockquote>\n
              4. R4 – Special Development Area (SDA).\n<\/p><\/blockquote>\n
6.      The petitioner has relied upon the report submitted by the Committee<\/p>\n
of the School of Planning and Architecture, New Delhi. The Authority<\/p>\n
prepared the Master Plan – 2021 for Noida, which was approved by the<\/p>\n
Board in its meeting held on 18.02.2006. On promulgation of the Master<\/p>\n
Plan – 2021, the development has to be in accordance with the approved<\/p>\n
plan.\n<\/p>\n
        According to the petitioner, he does not have the details by which the<\/p>\n
private builders have been made eligible to seek allotment of Group Housing<\/p>\n
Plots in Noida, but if such a decision is taken, the same is illegal, unfair, a<\/p>\n
misuse and abuse of the powers of the respondents and the public office. It is<\/p>\n
a colourable exercise and fraud upon the public whose lands were acquired<\/p>\n
in the guise of the public purpose but allotted to the private builders for<\/p>\n
commercial gain at the cost of general public who are waiting to have their<\/p>\n
houses or flats in Noida. The Authority or the State Government, it is
\n                                      4<\/span>
\naverred, have no power to transfer the land acquired for public purpose to<\/p>\n
the private builders to allow them to earn from the public fund. The<\/p>\n
respondents with mala fide intention have misused their office and position<\/p>\n
to allow the private builders to flourish at the cost of the public fund. The<\/p>\n
report of the Authority at Agenda No.3 in one of its meeting, shows that<\/p>\n
there are 17 Group Housing Plots for allotment in the development area. Out<\/p>\n
of 17 plots, 8 were reserved for builders, 3 for societies, 2 for U.P.<\/p>\n
Government officers Societies, 2 for industrial units\/institutions and 2 for<\/p>\n
senior citizens societies. The said report was presented before the Board for<\/p>\n
approval and finalization of the policy of allotment, which was approved by<\/p>\n
the Board in its 125th meeting held on 15.04.2005. As per Master Plan –<\/p>\n
2021, the land use is residential, medium and high density. Apart from that,<\/p>\n
it is averred that the Authority opened a scheme on 18.05.2006 for 13 Group<\/p>\n
Housing Plots in Noida and invited tenders for allotment of plots in Sectors<\/p>\n
93B, 110, 119, 121 and 134 to any firm, either proprietor or partnership,<\/p>\n
company, either private or public limited\/consortium of various categories.<\/p>\n
As per Master Plan – 2021, in Sectors 93B and 121, the residential use zone<\/p>\n
is high density and rest other sectors are medium density. The Authority, in<\/p>\n
order to execute the development of the development area, has to function as<\/p>\n
per the norms laid down in Master Plant 2021 and no power has been<\/p>\n
conferred upon it to permit any violation of the same. The Authority has<\/p>\n
allowed development contrary to the Master Plan 2021 and has<\/p>\n
compromised with respect to land use or density to benefit the private<\/p>\n
builders to earn maximum profit from the location as well as by allowing<\/p>\n
excess F.A.R. The petitioner has, therefore, prayed for quashing the Scheme
\n                                         5<\/span>
\nfor private builders being ‘Scheme for Allotment of Group Housing Plots,<\/p>\n
Scheme Code GH – 2009 (II)’ and for a writ, order or direction in the nature<\/p>\n
of prohibition to prohibit the Authority from allotment of Group Housing<\/p>\n
Plots to private builders\/individuals\/corporate\/private companies\/limited<\/p>\n
companies or their consortium for development and sale in the development<\/p>\n
area.\n<\/p>\n
7.      The Authority – respondent no.2 has filed a counter affidavit as also<\/p>\n
supplementary affidavits.\n<\/p>\n
        It is contended that there is no law including the Act, which prohibits<\/p>\n
allotment of Group Housing Plots to builders. The development of the area<\/p>\n
by way of construction of buildings can either be carried out by the<\/p>\n
Authority on their own or by allotment of plots to builders, societies etc. as<\/p>\n
per the terms and conditions of a particular Scheme. It is a matter of policy.<\/p>\n
Allotment of Group Housing Plots to builders and\/or societies is an accepted<\/p>\n
form of allotment practised throughout the country.               According to<\/p>\n
respondent no.2, even in the past, for several years, Group Housing Plots<\/p>\n
have been allotted to the societies and builders and it is not for the first time<\/p>\n
that Group Housing Plots have been allotted to private builders.<\/p>\n
8.      Preliminary objections have also been raised on the ground that the<\/p>\n
petition suffers from latches, as the Scheme was open from 4th June, 2009 to<\/p>\n
25th June, 2009. The technical bids were opened on 25th June, 2009 and<\/p>\n
thereafter the financial bids were opened on 29th June, 2009. Allotment<\/p>\n
letters in respect of two plots and letter to change reservation in respect of<\/p>\n
one plot have already been issued. There were altogether four plots, though<\/p>\n
initially only three plots were advertised. By way of corrigendum published
\n                                           6<\/span>
\n        th
\non 20 June, 2009, the area of Plot No. GH – 001 located in Sector 121 was<\/p>\n
reduced from 1,17,000 sq. metrs to 79285.35 sq. meters and by the same<\/p>\n
corrigendum, Plot No. GH-01 of Sector 70 was added in the Scheme having<\/p>\n
an area of 51000 sq. mtrs. Another corrigendum was issued on 23.06.2009<\/p>\n
whereby the area of newly added Plot GH – 01 in Sector 70 was enhanced to<\/p>\n
75800 sq. mtrs. The land use in Sectors 45, 121 and 70 is residential as per<\/p>\n
the Master Plan- 2021. As regards Sector 137, the land use as per Master<\/p>\n
Plan – 2021 was residential. But the Board on 10.06.2008 decided to change<\/p>\n
the land use from residential to institutional, for which approval of the<\/p>\n
Government was sought and the same was granted on 19.09.2008.<\/p>\n
Subsequently, the Board, in its meeting held on 28.05.2009, decided to<\/p>\n
restore the land use from institutional to residential. Approval of the<\/p>\n
Government was sought by way of letter dated 03.07.2009 and in<\/p>\n
anticipation of approval, the Scheme in question was launched which<\/p>\n
included plot no.137. Thus, third party rights have come into existence<\/p>\n
before filing of the writ petition and, thus, the petition is liable to be<\/p>\n
dismissed on the ground of mis-joinder of necessary and proper parties.<\/p>\n
9.       The petition, it is submitted, has been filed at the instance of a third<\/p>\n
party, particulars whereof are not available with the second respondent. Also<\/p>\n
some aspects and decision of the Authority taken in its 125 th and 137th Board<\/p>\n
meetings were the subject matter of Civil Misc. Writ Petition No. 175 of<\/p>\n
2009.\n<\/p>\n
10.          The respondents have denied that the density and the F.A.R. allowed<\/p>\n
in respect of the plots in question are contrary to the approved Master Plan<\/p>\n
or approved Scheme. The Scheme, as brought from time to time, have the
\n                                       7<\/span>
\napproval of the Competent Authority. The report of the School of Planning<\/p>\n
and Architecture is a report of a Consultant, which is not binding on the<\/p>\n
Authority. The Master Plan was prepared keeping in view the pollution<\/p>\n
density of the entire township of a particular Sector. The density of any plot<\/p>\n
within a Sector is determined not by the Master Plan but by the Noida<\/p>\n
Building Regulations and Directions. The density of the township and Sector<\/p>\n
is fixed by the Master Plan. Fixing of density or the F.A.R. is a dynamic<\/p>\n
process. The parameters have to be revised keeping in view the ground<\/p>\n
realities. The F.A.R. has been increased in accordance with law by an<\/p>\n
amendment in the Building Regulations and Directions, which have been<\/p>\n
duly notified in the gazette. The F.A.R. permitted by the respondents is less<\/p>\n
than what is permitted by other Urban Development Authorities under the<\/p>\n
control of the Government of U.P. In respect of Group Housing, the<\/p>\n
permissible F.A.R. was increased from 150 to 250 by notification dated 25th<\/p>\n
September, 2008. The averments, which are contrary to the stand taken by<\/p>\n
the respondents have been denied and a supplementary counter affidavit was<\/p>\n
filed on 18.08.2009 placing on record the various corrigendums, which were<\/p>\n
issued and some clarifications. Two additional supplementary counter<\/p>\n
affidavits have also been filed on 06.07.2010. In one supplementary<\/p>\n
affidavit, the respondents have sought to explain the concept of density and<\/p>\n
in other supplementary counter affidavit of the same date, some errors<\/p>\n
noticed in the earlier supplementary counter affidavit have been corrected.<\/p>\n
11.   At the hearing of this petition, on behalf of respondent no.2, learned<\/p>\n
counsel sought to rely on the judgment of a coordinate Bench of this Court<\/p>\n
in Air Force Naval Housing Board, New Delhi & Ors. Vs. State of U.P.
\n                                        8<\/span>
\n& Ors., [2009 (9) ADJ 603 (DB)]. It is sought to be contended, based on the<\/p>\n
said judgment, that the issue, especially regarding the Scheme for Group<\/p>\n
Housing, which was approved at 125th meeting of the Board, was the subject<\/p>\n
matter of the petition and has been answered by this Court.<\/p>\n
      We have perused the said judgment and we find that the main issue in<\/p>\n
the said petition was the rejection of application of Air Force Naval Housing<\/p>\n
Board for allotment of land in respect of the Group Housing Plots. The Air<\/p>\n
Force Naval Housing Board was found not to be eligible under that Scheme.<\/p>\n
They challenged the same and thereafter amended the petition to include the<\/p>\n
consequential reliefs to consider their applications and also to quash Clause<\/p>\n
– C of the Brochure of the Group Housing Scheme which was the subject<\/p>\n
matter of the said writ petition, but which is not in issue in the present case.<\/p>\n
In our opinion, therefore, the issues, which arise in this petition were not<\/p>\n
directly in issue in the said petition. They have not been answered either and<\/p>\n
were not required to be answered, considering the controversy in that<\/p>\n
petition. In our opinion, therefore, the judgment in Air Force Naval Housing<\/p>\n
Board, New Delhi (supra) would be of no assistance in deciding the<\/p>\n
controversy, which arises in this petition.\n<\/p>\n
12.   The respondent no.2 has also raised the issue of latches. The petitioner<\/p>\n
has approached this Court on 17.07.2009. It is true that the petitioner has not<\/p>\n
challenged the Scheme before the date fixed for closure of receipt of tenders.<\/p>\n
In this case, the technical bids were opened on 25 th June, 2009 and thereafter<\/p>\n
financial bids were opened on 29th June, 2009 and it appears that out of four<\/p>\n
plots, allotment letters in respect of two plots and reservation letter in<\/p>\n
respect of one plot had already been issued.\n<\/p>\n
                                       9<\/span><\/p>\n
      This Court while exercising its extraordinary jurisdiction, no doubt,<\/p>\n
considers whether a petition is barred by latches considering the fact that<\/p>\n
third party rights may have been created in the meantime and if the petition<\/p>\n
is entertained, the rights of said third party would be affected, which have<\/p>\n
already been settled. In our opinion, considering the issue raised by the<\/p>\n
petitioner, we are unable to accept the contention of respondent no.2 that the<\/p>\n
petition should be dismissed on the ground of latches. That contention is,<\/p>\n
therefore, liable to be rejected.\n<\/p>\n
13.   So far as the contention raised by the respondents that in the absence<\/p>\n
of necessary or proper parties, i.e. the persons in whose favour two plots<\/p>\n
have been allotted, and the petition suffers from non-joinder of necessary or<\/p>\n
proper parties is concerned, the same will be considered at the time of<\/p>\n
granting relief. The contention that grant of relief would affect the rights of<\/p>\n
third party will also be considered while disposing of the present petition<\/p>\n
considering the fact that there were four plots and allotments have been<\/p>\n
made only in respect of two plots.\n<\/p>\n
14.   In view of the above, we may now consider the main issue, i.e.<\/p>\n
considering the Scheme of the Act and the Regulations, whether it was open<\/p>\n
to respondent no.2 to dispose of the land especially after it was acquired for<\/p>\n
public purpose, to private builders which enabled them to make profits?<\/p>\n
      To answer the issue, we may gainfully quote Section 7 of the Act,<\/p>\n
which reads as under:-\n<\/p>\n
                 “7.Power to the Authority in respect of transfer of
\n          land.–The Authority may sell, lease or otherwise transfer
\n          whether by auction, allotment or otherwise any land or
\n                                            10<\/span>
\n         building belonging to the Authority in the industrial
\n         development area on such terms and conditions as it may,
\n         subject to any rules that may be made under this Act, think fit
\n         to impose.”<\/p><\/blockquote>\n
      Apart from that, Section 6 of the Act is also relevant for the purpose,<\/p>\n
which reads as under:-\n<\/p>\n
            “6.         Functions of the Authority.–(1) The object of the
\n         Authority shall be to secure the planned development of the
\n         industrial development areas.\n<\/p><\/blockquote>\n
            (2) Without prejudice to the generality of the objects of the
\n                  Authority, the Authority shall perform the following
\n                  functions–\n<\/p><\/blockquote>\n
                  (a)       to acquire land in the industrial development\n                            area, by agreement or through proceedings under\n                            the Land Acquisition Act, 1894 for the purposes\n                            of this Act;\n                  (b)       to prepare a plan for the development of the\n                            industrial development area;\n                  (c)       to demarcate and develop sites for industrial,\n<\/pre>\n
                            commercial and residential purposes according to
\n                            the plan;\n<\/p><\/blockquote>\n
                  (d)       to   provide        infra-structure   for   industrial,\n                            commercial and residential purposes;\n                  (e)       to provide amenities;\n                  (f)       to allocate and transfer either by way of sale or\n                            lease or otherwise plots of land for industrial,\n                            commercial or residential purposes;\n                  (g)       to regulate the erection of buildings and setting\n                            up of industries; and\n                  (h)       to lay down the purpose for which a particular\n                            site or plot of land shall be used, namely for\n                                        11<\/span>\n<\/pre>\n
                         industrial or commercial or residential purpose or
\n                         any other specified purpose in such area.”\n<\/p><\/blockquote>\n
15.   On consideration, therefore, of Sections 6 and 7, it is clear that power<\/p>\n
is conferred on the Authority to sell, lease or otherwise transfer, by the<\/p>\n
method set out in the Section, any land belonging to the Authority in the<\/p>\n
development area on such terms as it thinks fit. The functions of the<\/p>\n
Authority have been set out under Section 6 of the Act, which includes the<\/p>\n
power to acquire land, to prepare a plan, to demarcate and develop sites for<\/p>\n
industrial, commercial and residential purposes and to allocate them for sale<\/p>\n
or lease, amongst others, for residential purposes. The power, therefore, to<\/p>\n
alienate the land, which had been acquired for residential purpose has been<\/p>\n
provided for by the Act itself. It will, therefore, not be possible to accept the<\/p>\n
contention on behalf of the petitioner that the land having been acquired<\/p>\n
under the Land Acquisition Act, 1894 cannot be alienated. Section 7 of the<\/p>\n
Act does not bar the Authority from selling or leasing the land to private<\/p>\n
parties including private builders. There is also no other provision, implied<\/p>\n
or express, prohibiting the transfer of land under the Act. The object of the<\/p>\n
Act is not defeated if private builders are allowed to develop the area, as the<\/p>\n
object is to develop the area into an industrial and urban township. The<\/p>\n
process of development, as noted by the Authority in terms of plan notified,<\/p>\n
can be carried out either by the Authority or through other bodies. The<\/p>\n
Authority in that process transfers plots to individuals, societies as also for<\/p>\n
Group Housing in respect of which development can be done by the private<\/p>\n
parties, including builders whereby the object of the Act is satisfied. The<\/p>\n
petitioner has not brought to our attention any provision whereby the
\n                                       12<\/span>
\nAuthority is prohibited, expressly or impliedly, from carrying out objects of<\/p>\n
the plan through private builders. The State and it organs in order to enable<\/p>\n
citizens to have affordable housing and further for proper development of a<\/p>\n
town, so that better infrastructure is provided, can do it by itself or through<\/p>\n
its instrumentalities or third partner, including private builders. That private<\/p>\n
builders may make profit is no answer. The State with its limited financial<\/p>\n
resources can allow others to achieve the object of the Act which is its<\/p>\n
primary concern including affordable housing and better infrastructure. The<\/p>\n
first contention must be rejected.\n<\/p>\n
16.   The second contention is that the Scheme, which provides for<\/p>\n
increased F.A.R. and higher density is contrary to the Act and the<\/p>\n
Regulations. Under the Act, the Authority had initially framed the<\/p>\n
Regulations, 1991, which was notified on 08.06.1991 and came into force<\/p>\n
from the said date in view of the provisions of Regulation 1 (3) of the<\/p>\n
Regulations 1991. Thereafter, the Authority has also notified the New Okhla<\/p>\n
Industrial Development Area Building Regulations and Directions, 2006,<\/p>\n
which was published in Uttar Pradesh Gazette on 16.12.2006 and have come<\/p>\n
into force from the said date. Regulation 11 (1) of the Regulations 1991,<\/p>\n
which gives power on the Authority to amend the Plan, reads as follows:-<\/p>\n
               “11. Amendment of the Plan.- (1) The Authority may
\n           make such amendments in the Plan which do not effect
\n           important alteration in the character of the Plan and which
\n           do not relate to the extent of land use or standards of
\n           population density.\n<\/p><\/blockquote>\n
                    …            ….                  ….           ….”<\/p>\n
\n                                       13<\/span>\n<\/p>\n
      Under Regulation 4 (1) (b) (ii) of the Regulations 1991, the plan has<\/p>\n
to show the various existing and proposed land uses indicating the most<\/p>\n
desirable utilization of the land for residential use by allocating the area of<\/p>\n
land for housing for different and defined densities and plotted development<\/p>\n
for different categories of households. The Plan approved in terms of<\/p>\n
Regulation 9 (c) of Regulations, 1991 shall be effective for a period<\/p>\n
specified by the Authority, but such period shall not be less than five years.<\/p>\n
Therefore, under the Regulations 1991, Master Plan-2021 has been prepared<\/p>\n
and that Plan is in force. The Plan provides for various land uses. The Plan<\/p>\n
can be amended in terms of Regulations. As long as the amendment does not<\/p>\n
effect important alteration in the character of the Plan and does not relate to<\/p>\n
the extent of land use or standards of population density, the Authority has<\/p>\n
power to amend the Plan. In the Master Plan, the plots, which are the subject<\/p>\n
matter of this petition, has been identified as belonging to high and medium<\/p>\n
density. An amendment was made in the Development Area Building<\/p>\n
Regulations and Directions, 2006, which was notified on 20th February 2009.<\/p>\n
By the said amendment, amongst others, Directions 22 and 33.2 of the<\/p>\n
Building Regulations and Directions 2006 have also been amended. By<\/p>\n
virtue of the amendment in Direction 22, the F.A.R. for plots based upon<\/p>\n
size, has been set out. By amendment to Direction 33.2, sub-regulation<\/p>\n
provides density as mentioned in the Sector Layout Plan or Scheme shall be<\/p>\n
applicable. In other words, the density can be as either provided in terms of<\/p>\n
the Master Plant or the Scheme. The coverage area has been increased from<\/p>\n
30% to 35% on plots size upto 40,000 sq. meters and F.A.R. from 2 to 2.75.<\/p>\n
The permissible ground coverage area under the Housing Scheme, as
\n                                       14<\/span>
\nnotified and which is the subject matter of challenge is 40% and maximum<\/p>\n
permissible F.A.R. is 2.75, which is in terms of the Regulations and<\/p>\n
Directions. The density, however, for plot area above 40,000 sq. meters has<\/p>\n
been increased. This increase, in our opinion, is in conformity with Direction<\/p>\n
33.2, which has conferred power on the Authority that the density can be in<\/p>\n
terms of the Layout Plan or Scheme.\n<\/p>\n
17.   As we have noted that amended Building Regulations of 2006 permit<\/p>\n
F.A.R. of 2.75. The Building Regulations are an exercise in subordinate<\/p>\n
legislation. A challenge to a subordinate legislation can only be made on<\/p>\n
limited grounds, which have been culled out as manifest arbitrariness, utra<\/p>\n
vires or violation of fundamental rights. (For this purpose, see Bombay<\/p>\n
Dyeing & Mfg. Co. Ltd. (3) Vs. Bombay Environmental Action Group<\/p>\n
& Ors., (2006) 3 SCC 434, wherein the law has been enunciated. See also<\/p>\n
Janhit Manch & Bhagwanji Raiyani Vs. The State of Maharastra &<\/p>\n
Ors., (2007) 1 BCR 329, where the challenges to an exercise in subordinate<\/p>\n
legislation have been set out). We may gainfully reproduce the following<\/p>\n
paragraphs from Bombay Dyeing & Mfg. & Co. Ltd. (supra):-<\/p>\n
             “104. A policy decision, as is well known, should not be
\n             lightly interfered with but it is difficult to accept the
\n             submissions made on behalf of the learned counsel
\n             appearing on behalf of the appellants that the courts
\n             cannot exercise their power of judicial review at all. By
\n             reason of any legislation, whether enacted by the
\n             legislature or by way of subordinate legislation, the State
\n             gives effect to its legislative policy. Such legislation,
\n             however, must not be ultra vires the Constitution. A
\n             subordinate legislation apart from being intra vires the
\n                          15<\/span>
\nConstitution, should not also be ultra vires the parent Act
\nunder which it has been made. A subordinate legislation,
\nit is trite, must be reasonable and in consonance with the
\nlegislative policy as also give effect to the purport and
\nobject of the Act and in good faith.\n<\/p><\/blockquote>\n
105. In P.J. Irani v. State of Madras, AIR<\/a> 1961 SC 1731,
\nthis Court has clearly held that a subordinate legislation
\ncan be challenged not only on the ground that it is
\ncontrary to the provisions of the Act or other statutes; but
\nalso if it is violative of the legislative object. The
\nprovisions of the subordinate legislation can also be
\nchallenged if the reasons assigned therefor are not
\ngermane or otherwise mala fide. The said decision has
\nbeen followed in a large number of cases by this Court.
\n[(See also Punjab Tin Supply Co. v. Central Govt., (1984
\n1 SCC 206)].\n<\/p>\n
111. In BALCO Employees’ Union (Regd.) v. Union of
\nIndia,<\/a> (2002) 2 SCC 333, this Court while dealing with
\nnew economic policies of the elected Government held :
\n(SCC pp. 381-82, paras 92-93)<\/p>\n
      “Any such change may result in adversely
\n  affecting some vested interests. Unless any illegality
\n  is committed in the execution of the policy or the
\n  same is contrary to law or mala fide, a decision
\n  bringing about change cannot per se be interfered
\n  with by the court.”\n<\/p>\n
115. Furthermore, interpretation of a town planning
\nstatute which has an environmental aspect leading to
\napplication of Articles 14 and 21 of the Constitution
\n                           16<\/span>
\ncannot be held to be within the exclusive domain of the
\nexecutive.\n<\/p>\n
116. There cannot be any doubt whatsoever, that the
\nvalidity and\/or interpretation of a legislation must be
\nresorted to within the parameters of judicial review, but it
\nis difficult to accept the contention that it is totally
\nexcluded.\n<\/p>\n
117. Unreasonableness is certainly a ground of striking
\ndown a subordinate legislation. A presumption as to the
\nconstitutionality of a statute is also to be raised but it does
\nnot mean that the environmental factors can altogether be
\nomitted from consideration only because the executive has
\nconstrued the statute otherwise.\n<\/p>\n
118. It is interesting to note that the scope of judicial
\nreview is now being expanded in different jurisdictions.
\nEven judicial review on facts has been held to be
\npermissible in law. (See Manager, Reserve Bank of India
\nv. S. Mani,<\/a> (2005) 5 SCC 100, Sonepat Coop. Sugar Mills
\nLtd. v. Ajit Singh,<\/a> (2005) 3 SCC           232, and Cholan
\nRoadways Ltd. v. G. Thirugnanasmbandam,<\/a> (2005) 3
\nSCC 241).\n<\/p>\n
119. In Anil Kumar Jha v. Union of India, (2005) 3 SCC
\n150, it was held that in an appropriate case, the Supreme
\nCourt may even interfere with a political decision
\nincluding an action of the Speaker or the Governor of the
\nState although it may amount to entering into a political
\nthicket. (See also Rameshwar Prasad (VI) v. Union of
\nIndia, (2006) 2 SCC 1.)<\/p>\n
123. For the foregoing reasons, we are of the opinion that
\nin cases where constitutionality and\/or interpretation of
\n                                       17<\/span>
\n             any legislation, be it made by Parliament or an executive
\n             authority by way of delegated legislation, is in question, it
\n             would be idle to contend that a Court of superior
\n             jurisdiction cannot exercise the power of judicial review.
\n             A distinction must be made between an executive decision
\n             laying down a policy and executive decision in exercise of
\n             its legislation-making power. A legislation be it made by
\n             Parliament\/Legislature or by the executive must be
\n             interpreted within the parameters of the well-known
\n             principles enunciated by this Court. Whether a legislation
\n             would be declared ultra vires or what would be the effect
\n             and purport of a legislation upon interpretation thereof
\n             will depend upon the legislation in question vis-a-vis the
\n             constitutional provisions and other relevant factors. We
\n             would have to bear some of the aforementioned principles
\n             in mind while adverting to the rival contentions raised at
\n             the Bar in regard to interpretation of DCR 58 as well as
\n             constitutionality thereof.”\n<\/p>\n
\n      In our opinion, therefore, once the Authority was competent to make<\/p>\n
and amend the Regulations and in the absence of any specific challenge to<\/p>\n
the Regulations, that must be rejected.\n<\/p>\n
18.   That leaves us with the question of density. We have already noted<\/p>\n
that the Regulation itself has provided that the density would be in terms and<\/p>\n
as mentioned in Sector Layout Plan or Scheme. We have quoted the figures<\/p>\n
insofar as the Scheme is concerned. In terms of the Regulations, therefore,<\/p>\n
that density would be available to a person who carries out the development<\/p>\n
in respect of plots, which have been transferred. Density has not been<\/p>\n
defined under the Act or the Regulations framed thereunder. Density has,
\n                                       18<\/span>
\nhowever, been defined in the National Building Code published by the<\/p>\n
B.I.S., Government of India to mean “The Residential Density expressed in<\/p>\n
terms of the number of dwelling units per hectare.” The population density<\/p>\n
in respect of Group Housing Plots have been fixed under Regulation 33 of<\/p>\n
the Building Regulations, 2006 whereunder the density is as per the Sector<\/p>\n
Plan or the Scheme. The Regulations of 2006, therefore, permit latitude to<\/p>\n
the Authority to fix the density in respect of the Group Housing Plots. In<\/p>\n
terms of Master Plan – 2021, the medium density has been placed in the<\/p>\n
range of 200-400 pph while high density was placed in the range of 400-600<\/p>\n
pph. According to the Authority, the density has to be reckoned at the town<\/p>\n
level and consequently at the sector level. This density is relevant for the<\/p>\n
purpose of laying down the infrastructure. In sectors, where the flatted and<\/p>\n
plotted developments have already taken place, it would be difficult to take<\/p>\n
steps for increasing the density. Increase in density of the plots under<\/p>\n
development, can take place easily. For this, the requirement is that in these<\/p>\n
sectors, it should be ensured that sufficient infrastructure is laid down to<\/p>\n
sustain such density. These averments by the Authority, as set out in the<\/p>\n
supplementary counter affidavit, have not been denied. Though, the density<\/p>\n
of the Group Housing Plots in the Scheme is 1650, the overall density of<\/p>\n
Sector Nos. 45, 121, 137 and 70 is well within the range laid down in the<\/p>\n
Master Plan. The respondents have filed the details of residential area and<\/p>\n
population as per the plots offered in the Scheme Code : GH 2009 (II), as set<\/p>\n
out in the supplementary affidavit dated 06.07.2010. This was further<\/p>\n
clarified as there were some calculating errors in respect of density of Sector
\n                                        19<\/span>
\n45 by filing a further affidavit of the same date. The density as calculated,<\/p>\n
therefore, is within the range laid in the Master Plan.<\/p>\n
19.   The Authority has pointed out that the area of Noida city is<\/p>\n
limited\/fixed. If the town density is increased, then this can only be done by<\/p>\n
increasing the availability of Group Housing Plots. If the space is limited,<\/p>\n
the development can only take place vertically and not horizontally, which<\/p>\n
has led to the concept of multi-storied flats. Once the vertical growth takes<\/p>\n
place and the F.A.R. is increased, then the density is bound to increase<\/p>\n
proportionately. Development of the city is a dynamic process where the<\/p>\n
parameters of development\/construction can change from time to time. With<\/p>\n
the advent of flat system, it is possible to accommodate more dwelling units<\/p>\n
in a given area than plotted development. This, in fact, results in decreasing<\/p>\n
or arresting the cost per dwelling unit and, thus, contribute towards<\/p>\n
affordable housing which, even according to the petitioner, is the object of<\/p>\n
the Act. This is a part of policy as reflected in the Regulations. Policy, more<\/p>\n
so a socio-economic policy, should normally be not interfered by the Court<\/p>\n
and must be left in the executive domain. The government has to be allowed<\/p>\n
some room at the joints. Considering these aspects, and as there is no<\/p>\n
specific challenge by the petitioners to D.C. Regulation 33 (2), in our<\/p>\n
opinion, this challenge as raised by the petitioner has to fail.<\/p>\n
20.   In the light of the above, we find no merit in this petition.<\/p>\n
Consequently, rule discharged. There shall be no order as to costs.<\/p>\n
\n\nDate : July 29, 2010\nAHA\n\n                                   (A.P. Sahi, J.)     (Ferdino I. Rebello, C.J.)\n                                      20<\/span>\n\n\nHon'ble F.I. Rebello, C.J.\nHon'ble A.P. Sahi, J.\n      Rule discharged.\n      For orders, see order of date passed on separate\nsheets.\nDate : July 29, 2010\nAHA\n\n                                   (F.I. Rebello, C.J.)\n\n\n\n                                     (A.P. Sahi, J.)\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Shri N.P. Singh vs State Of U.P. And Others on 29 July, 2010 1 A.F.R. Reserved Civil Misc. Writ Petition No. 36421 of 2009 **** Shri N.P. Singh Vs. State of U.P. & Anr. Appearance : For the Petitioner : Shri N.P. Singh, in person For the Respondents : Shri Ravindra Kumar, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-133630","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nShri N.P. Singh vs State Of U.P. 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