{"id":31366,"date":"2010-01-25T00:00:00","date_gmt":"2010-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yamaha-vihar-sahkari-avas-samiti-vs-chief-executive-officer-others-on-25-january-2010"},"modified":"2015-01-29T07:50:37","modified_gmt":"2015-01-29T02:20:37","slug":"yamaha-vihar-sahkari-avas-samiti-vs-chief-executive-officer-others-on-25-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yamaha-vihar-sahkari-avas-samiti-vs-chief-executive-officer-others-on-25-january-2010","title":{"rendered":"Yamaha Vihar Sahkari Avas Samiti … vs Chief Executive Officer & Others on 25 January, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Yamaha Vihar Sahkari Avas Samiti … vs Chief Executive Officer & Others on 25 January, 2010<\/div>\n
                             Judgment reserved on 01.12.2009\n                            Judgment delivered on 25.01.2010\n\n         Civil Misc. Writ Petition No.23579 of 1997\n          Yamaha Vihar Sahkari Avas Samiti & Anr.\n                             Vs.\n  Chief Executive Officer, New Okhla Industrial Development\n                       Authority & Anr.\n\nHon. Sunil Ambwani, J.\n<\/pre>\n
Hon. Virendra Singh, J.\n<\/p>\n
      Heard Shri Pradeep Kumar, learned counsel for the
\npetitioner. Shri Ramendra Pratap Singh appears for New Okhla
\nIndustrial Development Authority.\n<\/p>\n
      The petitioner is a cooperative housing society, registered
\nwith Housing Commissioner U.P. Awas Evam Vikas Parishad
\nLucknow with registration No.1786 dated 1.9.1992. It is stated
\nthat the society has 250 members joined together for providing
\nresidential houses to them. The society has allotted the land to
\nprovide housing facilities to its 200 members working in the
\nYamaha Motor Company Ltd. situate in Surajpur Tehsil Dadri
\nDistt. Gautam Budh Nagar. The land was purchased by initially
\nentering into an agreement of sale dated 31.7.1992 with Bhim
\nSingh, Dharmvir Singh and Dharmpal Singh sons of Bhura Singh
\nand Badlu son of Thana Singh of Village Barola, Pargana and
\nTehsil Dadri, Distt. Ghaziabad, Gautam Budh Nagar for sale of
\ntheir \u00bd share in Khasra No.1142 to 1154 measuring 3 bigha 10
\nbiswa and 6 biswansis for a sum of Rs.26,90,250\/-.       Similar
\nagreement was also entered into with one Rishal son of Hari Ram
\nfor 3 bigha 6 biswa pakka in Khasra Nos.1114, 1115, 1116 and
\n1117 in Village Barola, Tehsil Dadri, Distt. Gautam Budh Nagar
\nadjacent to plot Nos.1142 to 1154 for Rs.2,40,975\/-. The entire
\nsale consideration was paid and the land owners executed sale
\ndeeds in the year 1995-96 on which the petitioner society became
\nowner and got its name entered into revenue records. The land is
\n                                   2<\/span><\/p>\n
recorded as residential in revenue records with some existing old
\nconstructions.\n<\/p>\n
       The       petitioner society had earlier filed Writ Petition
\nNo.37058 of 1992 for a direction to the Noida not to interfere in
\nits rights to develop the land. The writ petition was disposed of
\nwith following directions:-\n<\/p>\n
               “Petitioner has submitted a lay out plan. Since no
\n       order has been passed, petitioner rushed to this Court by
\n       means of this petition. Since considerable time has
\n       elapsed, respondents are directed to consider the matter of
\n       the petitioner within one month from the date of service of
\n       a certified copy of this order upon him.\n<\/p><\/blockquote>\n
               With the above direction the petition is disposed of.\n<\/p><\/blockquote>\n
       Dt.22.10.92
\n                                                            sd\/-V.N.K.\n<\/p><\/blockquote>\n
                                                        sd\/-D.P.S.C.”<\/p><\/blockquote>\n
       The Officer on Special Duty Noida informed the petitioner
\nin response to their application dated 28.10.1992 under Chapter II
\nRegulation 5 of Noida Building Regulations that the petitioner’s
\napplication has been rejected on the ground that the plots in
\ndispute have also been acquired by Noida, and that the land is in
\nthe possession of the authority and Noida authority had paid total
\ncompensation      to   the    District   Magistrate\/   Administration,
\nGhaziabad.\n<\/p>\n
       The Society again filed a Writ Petition No.666 of 1993
\nchallenging the decision of Noida dated 1.12.1992 rejecting the
\nbuilding plan. The writ petition was dismissed on the ground of
\nalternative remedy to file an appeal under Regulation 17 of the
\nNoida Building Regulations. In the meantime, the petitioner was
\ninformed by the CEO, Noida that in the letter dated 1.12.1992 in
\nreply to the petitioner’s application Khata Nos.\/1142 to 1154 and
\n1114 to 1117 in Village Barola, Tehsil Dadri            were wrongly
\nmentioned to be acquired. The land falls within the notified area
\nof the Government authority and as such the petitioner society
\ncannot be permitted to change the land use.            The letter was
\n                                 3<\/span><\/p>\n
incorporated in appeal filed by the society.         At the time of
\nhearing of the appeal the Executive Officer, Noida was required to
\ngive a complete report to the actual position of the land purchased
\nby the society. The Executive Officer, Noida issued certificates
\nstating that plot Nos.1114 to 1117, 1136\/1, 1137\/2 and half of plot
\nNo.1142 and 1154 are not acquired nor there is any proposal to
\nacquire the land. The plots are situate in old abadi of village and
\nthat there are some old and new constructions on the land. It is
\nstated in para 24 of the writ petition that after receiving letter of
\nthe Administrative Officer dated 31.12.1994 as aforesaid the
\nsociety carved out and allotted the plots to its members. They
\nwithdrew the money from their provident fund account and
\nconstructed their houses. Out of 200 allottees about 40 members
\nhave completed constructions and 50 had partly completed
\nconstructions in the year 1997, when the writ petition was filed.
\nThe notice dated 13.3.1996 was received by the Secretary of the
\nSociety from the Secretary, Noida as a surprise to show cause as to
\nwhy the constructions raised by the society on plot Nos.1150,
\n1152, 1153 and 1154 area 9 bigha 4 biswa 10 biswansis has been
\ncovered by illegal constructions. The land falls in the notified area
\nof Noida on which no permission was given by the authority for
\nraising constructions. The petitioner filed a third writ petition
\nNo.19284 of 1996 with a prayer to issue writ of mandamus
\nrestraining the respondents from demolishing the constructions on
\n11.6.1996. During vacations an order was passed as follows:-\n<\/p>\n
              “Issue notice.\n<\/p><\/blockquote>\n
              Until further orders of this court the petitioner
\n       construction if they exist over plot Nos.1114 to 1117 and
\n       half shares of plot Nos.1142 to 1154 over which there is
\n       abadi situated in village Baraula Tehsil Dadri District
\n       Ghaziabad shall not be demolished              provided the
\n       notifications for acquisition of these plots have not already
\n       been issued. In case the plots have been acquired by the
\n       respondents, this order shall not be operative.\n<\/p><\/blockquote>\n
                                                    Sd\/-S.C. Verma
\n                                                        11.6.1996″<\/p><\/blockquote>\n
                                 4<\/span><\/p>\n
       On 23.7.1996 a Division        Bench disposed of the writ
\npetition restraining the respondents from taking any coercive
\nsteps until the petitioners’ representation dated 15.4.1996 and
\n3.5.1996 are decided. The order is quoted as below:-\n<\/p>\n
                “The petition is taken up in the revised list. None
\n       appears to press petition. By this petition, the petitioners
\n       seek a writ of mandamus directing the respondents not to
\n       demolish any construction of member of the petitioner’s
\n       society existing on plot Nos.1114 to 1117 and \u00bd shares of
\n       plot Nos.1142 to 1154 situated in village Baraula Tehsil
\n       Dadri, District Ghaziabad.\n<\/p><\/blockquote>\n
                The petitioners have already submitted their
\n       representation dated 15.4.1996 and 3.5.1996. thus it is
\n       directed that before taking anfy coercive steps for
\n       demolition         the representations submitted by the
\n       petitioners be decided in accordance with law and only
\n       thereafter necessary steps be taken, if need be for
\n       demolition.\n<\/p><\/blockquote>\n
                With the direction, this petition is disposed of
\n       finally.\n<\/p><\/blockquote>\n
                Interim order if any stand vacated.\n<\/p><\/blockquote>\n
                                                      Sd\/- B.M. Lal
\n                                                     Sd\/- J.S. Sidhu
\n                                                           23.7.96″<\/p><\/blockquote>\n
       The Noida authorities verified from the Yamaha Motors
\nand   were informed that constructions of the members of the
\nsociety were raised by taking loans from their provident fund
\naccounts. The Noida authorities, however, passed an order on
\n23.6.1997 that the land is not only situate in notified area of Noida
\nbut that proposals for acquisition of the land have also been sent to
\nthe A.D.M. (Land Acquisition), Noida to acquire the land for
\nplanned development and to carve out Sector 49. In the revenue
\nrecords nature of the land is agriculture and that any other activity
\nis prohibited under the provisions of U.P. Industrial Area
\nDevelopment Act, 1976. The land is earmarked for planned
\nindustrial development by NOIDA. The society has purchased
\nagricultural land and not abadi land on which the constructions
\nare not permissible under law. The representation was accordingly
\n                                5<\/span><\/p>\n
rejected giving rise to this writ petition. On 23.3.1996 this Court
\npassed following order:-\n<\/p>\n
               “Until further orders of this Court members of the
\n       petitioner No.1 society shall not be dispossessed from the
\n       land in dispute.”<\/p><\/blockquote>\n
       The New Okhla Industrial Development Authority filed
\nSpecial Leave Petition (Civil) No.6842 of 1999. It was withdrawn
\nby Noida on 12.5.1999. The order of the Supreme Court is quoted
\nas below:-\n<\/p>\n
             “Learned counsel for the petitioner states that he
\n      will apply to the High Court by separate application
\n      praying for stay of the construction activities being carried
\n      on by the members of respondent-Society. The petitioner is
\n      accordingly permitted to adopt that course.\n<\/p><\/blockquote>\n
             The SLP is dismissed as withdrawn.”<\/p><\/blockquote>\n
       A stay modification application was filed by the Chief
\nExecutive Officer, Noida to restrain the petitioner from raising
\nconstructions over the plots in dispute. The application is still
\npending and has not been decided. The matter went out of the list
\nfrom 11.3.1999 for 9 years upto 18.2.2008 and was thereafter
\ndismissed for want of prosecution on 4.5.2009 and restored on
\n09.10.2009. On 24.11.2009 the counsel for the petitioner sent
\nillness slip and that on 1.12.2009 after hearing learned counsel for
\nthe parties, the judgment was reserved.\n<\/p>\n
       The supplementary counter affidavit of Shri R.N.
\nSrivastava was filed on 21.5.2002 stating therein that the disputed
\nland is sought to be acquired for planned industrial development\/
\ncommercial development by Noida for which a notification under
\nSection 4 (1) read with Section 17 (1) has been published on
\n17.4.2002 for an area of 111.847 hects. of agricultural land of
\nvillage Barola including khasra Nos.1142 to 1154 area 3 bigha 10
\nbiswa and 6 biswansis and khasra Nos.1114, 1115, 1116 and 1117
\narea 3 bigha 6 biswa. In the supplementary rejoinder affidavit
\nfiled on 8th July, 2008 it is stated that the notification under
\n                                 6<\/span><\/p>\n
Section 6 has not been issued. There are applications filed in the
\nyear 1997 and an expedite application filed in 1999 by Noida to
\nexpedite the hearing of the writ petition. The counsel appearing
\nfor petitioners and office was not in a position to explain as to why
\nthe matter has not been listed for almost 9 years. Shri Ramendra
\nPratap Singh appearing for Noida is also not in a position to
\nexplain the Court as to why in spite of a request made to him to
\nfind out status of the land acquisition proceedings on 24.11.2009.
\nWe are, therefore, proceeding to decide the case on the basis of the
\nmaterial available on record.\n<\/p>\n
       In the counter affidavit of Shri Praveen Singh, Naib
\nTehsildar, Noida Authority, Noida it is stated that Writ Petition
\nNo.37058 of 1992 was disposed of with directions to decide
\npetitioner’s representation and that Writ Petition No.666 of 1993
\nwas dismissed on the ground of alternative remedy of filing an
\nappeal under Section 17 of the Building Regulations applicable to
\nNoida. The petitioners filed third writ petition No.19284 of 1996,
\nwhich was disposed of with directions to decide the representation
\ndated 15.4.1996 and 3.6.1996. The petitioners have also filed
\ncivil suit No.1288 of 1996, which is pending disposal in respect of
\nsame land. It is stated by him that the land falls within the area
\nnotified for industrial development under the U.P. Industrial Area
\nDevelopment Act, 1976 and falls in Sector 49 Noida. In the
\nrevenue records the land is entered as agricultural land. No one is
\npermitted to change the nature of the land.         The petitioners
\nillegally purchased it for residential purposes.     The petitioner
\nsociety was never granted permission to raise constructions. The
\nlay out plan was rejected and no individual plan has been
\nsubmitted or sanctioned by Noida. The building regulations have
\nno application in the area, which has been notified. These
\nregulations are applicable only in respect of plots allotted to the
\nallottees by Noida. The Officer on Special Duty has corrected the
\nerror in his letter dated 30.4.1993, and had informed the petitioner
\n                                7<\/span><\/p>\n
that the plots have not been acquired but that no development was
\npossible and thus the plots as they were included in the notified
\ndevelopment area vide notification dated 17.4.1976 (para 17 of the
\ncounter affidavit).\n<\/p>\n
       In para 22 of the counter affidavit it is stated that proposal
\nfor acquisition of 254.92 acres of land was sent on 29.6.1994 and
\nthat the letter dated 31.12.1994 for the same proposal appears to
\nbe forged document.        The letter dated 31.12.1993 of the
\nAdministrative Officer cannot be treated as no objection
\ncertificate.\n<\/p>\n
       The factual position emerging from the affidavits on record
\nis that the land in dispute is recorded in the revenue records as
\nagricultural land. There is no material to show that the petitioner
\nsociety had applied and was recorded as owner of the land in
\nrevenue records. The application for permission for development
\nof the land    with lay out plan was rejected on 23.6.1997 in
\npursuance to the directions of this Court. There is nothing on
\nrecord to show that any appeal was filed or that the        building
\nregulations are applicable to the agricultural area.    The land in
\ndispute falls in the notified development area of the New Okhla
\nIndustrial Development Authority constituted under the U.P.
\nIndustrial Area Development Act, 1976. The constructions have
\nnot been raised by the petitioner society or its members after
\nsanction of lay out plan and individual plan for construction of
\nhouses under Section 9 of the Act. The land was proposed to be
\nacquired by including the plots in the total area of 111.84 7 hects.
\nfor which notification under Section 4 (1) read with Section 17 (1)
\nand 4 was published on 17th April, 2002. There is nothing on
\nrecord to demonstrate that this land was, thereafter, acquired by
\nthe State for Noida by issuing notification under Section 6 of the
\nAct.\n<\/p>\n
       The petitioners have prayed for directions to quash the
\norder dated 23.6.1997 and for further directions not to demolish
\n                                8<\/span><\/p>\n
the constructions existing on the plots. We do not find any error
\nof fact or law in the order dated 23.6.1997 passed by Shri Ravi
\nMathur,    Chief   Executive       Officer,   Noida   rejecting   the
\nrepresentation dated 15.4.1996 and 3.6.1996 of the petitioner
\nsociety. We also do not find any good ground to justify to issue
\nwrit of mandamus directing the respondents not to demolish any
\nconstructions of members of the petitioner society on the land in
\ndispute.   Even if the land was not acquired by the State, the
\nconstructions were raised without seeking permission.             The
\npetitioner has no right to claim any protection for such illegal
\nconstructions.\n<\/p>\n
       The writ petition is dismissed.\n<\/p>\n
Dt.25.01.2010
\nSP\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Yamaha Vihar Sahkari Avas Samiti … vs Chief Executive Officer & Others on 25 January, 2010 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, […]<\/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-31366","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nYamaha Vihar Sahkari Avas Samiti ... vs Chief Executive Officer & Others on 25 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/yamaha-vihar-sahkari-avas-samiti-vs-chief-executive-officer-others-on-25-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yamaha Vihar Sahkari Avas Samiti ... vs Chief Executive Officer & Others on 25 January, 2010 - 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