New Okhla Industrial Development Authority,
hereinafter referred to as “NOIDA”, in these special
leave petitions filed under Article 136 of the
Constitution of India impugns the order dated 20th of
June, 2008 passed by the Allahabad High Court in
Civil Misc. Writ Petition No. 41065 of 2003
(Sarvpriya Sahakari Avas Samiti Limited v. State of
U.P. through Special Secretary & Anr.) and order
dated 15th of July, 2010 passed in Civil Misc. Writ
Petition No. 67362 of 2005 (Shivalik Sahakari Avas
Samiti through Secretary v. State of U.P. through
Principal Secretary & Ors.). By those orders NOIDA
has been directed to give benefit of Government Order
dated 22nd of October, 2002 to each of the writ
petitioners, respondent no. 1 herein i.e. Sarvpriya
Sahakari Avas Samiti Limited, hereinafter referred to
as “Sarvpriya” and Shivalik Sahakari Avas Samiti,
hereinafter referred to as “Shivalik”.
Leave granted.
As direction given in both the appeals is
identical and facts are similar, both have been heard
together and are being disposed of by this common
judgment.
For the purpose of these appeals we have taken
the facts from the appeal arising out of Special
Leave Petition No. 1343 of 2009. Sarvpriya is a
registered Housing Cooperative Society and its claim
is that most of its members are from the Indian Army,
Border Security Force, Air Force, Central Reserve
Police Force, Delhi Police and other Government
Departments. The object of the Sarvpriya is to
provide residential accommodation to its members.
It was registered in the year 1981. Sarvpriya
purchased land from the land holders during the
period 1981 to 1985 in the Village Wazidpur within
Tehsil Dadri in the District of Ghaziabad from the
funds contributed by its members. During that period neither Ghaziabad Development Authority nor NOIDA were in existence and, as such, the layout plan
prepared by Sarvpriya was approved on 3rd of December,
1982 by the Chief Town and Country Planner. Later,
an agreement was entered into between Sarvpriya and
the District Magistrate, Ghaziabad, whereby Sarvpriya
was allowed to carry out the development activities
as per the layout plan within a period of two years.
While the aforesaid development activities were
going on, the State Government, in exercise of its
power under Clause (d) of Section 2 of the U.P.
Industrial Area Development Act, 1976 declared an
area of 748 acres of land in Village Wazidpur as
industrial development area, which was to form part
of the New Okhla Industrial Development Area. It
included land belonging to Sarvpriya. But, it seems
that despite the aforesaid area having been declared
as an industrial development area, Sarvpriya
continued to carry on the activities of colonization
and illegal plotting. Accordingly, by notice dated
21st of September, 1994, NOIDA called upon Sarvpriya to remove the JUDGMENTunauthorized construction within a stipulated time. Sarvpriya replied to the aforesaid
notice inter alia stating that it had developed the
land and asserted its right for further development
on the basis of the sanction order and terms of
agreement between it and the District Magistrate.
Sarvpriya also chose to challenge the aforesaid
notice in a writ petition filed before the High Court
but the challenge has ultimately failed.
Sarvpriya thereafter wrote to the State
Government to either permit it to develop residential
plots or to allot a suitable developed plot.
Sarvpriya also resorted to a proceeding before the
Monopoly Restrictive Trade Practices Commission but
the same was dismissed. While the request of
Sarvpriya for allotment of a suitable developed plot
was pending, in response to a notice dated 24th of
July, 1999, Sarvpriya by its representation dated 28th
of July, 1999 requested to settle the dispute outside
the court by either allowing it to retain the present site or to allot a suitable alternative developed piece of land to enable its members to raise housing
colony for their residence. It seems that thereafter
Sarvpriya wrote to NOIDA, from time to time, for
allotment of a suitable alternative developed piece
of plot relying on the recommendation of a Committee
known as Khodaiji Committee as also the order of the
State Government in the Department of Housing dated
22nd of October, 2002. When all these did not yield
any result, it filed CMWP No.45613 of 2002 (Sarvpriya
Sahakari Avas Samiti Ltd. v. Chairman, NOIDA
Authority) and the High Court by its order dated 25th
of October, 2002 directed NOIDA to dispose of its
representation within a stipulated time. The NOIDA
by its order dated 4th of July, 2003 rejected
Sarvpriya’s representation and, while doing so,
observed that it had purchased the land in the year
1981-1982 and on the recommendation of Khodaiji
Committee lands were allotted to societies which were
in existence till the year 1976 in the area and,
accordingly, it was observed that the recommendation
made by the Khodaiji Committee shall not be applicable to Sarvpriya.JUDGMENT
Being unsuccessful in persuading the NOIDA to
provide it alternative suitable plot, it filed a writ
petition, which has given rise to the impugned order,
for quashing the order dated 4th of July, 2003 and
further for the issuance of a writ in the nature of
mandamus commanding NOIDA to allot 40% of the land
acquired from Sarvpriya to it in Sector Nos. 134-135
or in any nearby sector of NOIDA.
NOIDA contested the claim of Sarvpriya inter alia
stating that the benefit of Government Order dated
22nd of October, 2002 applies to Avas Vikas Parishad
and Development Authority constituted under the
provisions of U.P. Urban Planning and Development
Act, 1973. It was further pointed out that the NOIDA
has been constituted under the provisions of U.P.
Industrial Area Development Act, 1976 and, hence the
Government Order referred to above shall not enure to
the benefit of Sarvpriya. The submission of NOIDA
did not find favour and the High Court by the impugned order in the case of Sarvpriya quashed the order dated 4th of July, 2003 and remitted the matter
back to NOIDA with direction to give the benefit of
the Government Order dated 22nd of October, 2002 to
Sarvpriya within a stipulated time. While doing so,
the High Court observed as follows:
“…….The further explanation of the
respondents are that Khodaiji Committee,
which is constituted for the purpose,
submitted the report that the benefit of
re-allotment or fresh allotment of the
land to such societies will be available
to the societies which were registered
before 1976. The argument is that benefit
of Khodaiji Committee report, which is
otherwise available to the Co-
operative Housing Societies, cannot be
given to the petitioner-society only
because the petitioner-society is not
registered before 1976. We have gone
through the report of Khodaiji Committee
and we do not find any such observation as
is attributed by the respondent to the
aforesaid report. The report simply talks
about the Co-operative Housing Societies
irrespective of the year of registration.
The petitioner’s society is definitely a
registered Housing Co-operative
Society. Therefore, the denial of benefit
of Khodaiji Committee report to the
petitioner is wholly arbitrary and
discriminatory in as much as the benefit
of this report have been extended by the
respondent to other Housing Co-operative
Societies……”
Shivalik claims to have been registered as
Housing Cooperative Society on 24th March, 1982. It
asserts that it had purchased the land by registered
sale deeds between the years 1990 to 1996 in Village
Chhajarsi within Tehsil Dadri in the District Of
Gautam Budh Nagar.
In the case of Shivalik, the High Court directed
to consider its claim observing that the Government
Order dated 22nd of October, 2002 shall be applicable
to NOIDA. While doing so, it observed as follows:
“A perusal of Section 12 aforesaid
shows that Section 41 has been adopted in
toto and adoption of Section is by
incorporation. Clause (c) of Section 12
clarifies that in a reference to the Vice-
Chairman of the authority shall be deemed
to be a reference to the Chief Executive
officer of the authority (created under
the U.P. Area Development Act). The
impugned Government Order dated 22.10.2002
has been issued after the enforcement of
both the above Acts. The Government Order
has been addressed to the Vice-Chairman of
the Development Authorities U.P. That
will mean that the reference is itself
also addressed to the Chief Executive
Officer of the New Okhla Industrial
Development Authority by virtue of clause
(c) of Section 12 of U.P. Industrial Area
Development Act, 1976. Thus it is beyond JUDGMENT
doubt that the Government Order is
applicable to the New Okhla Industrial
Development Authority. The Government
Order in which various reasons have been
given for holding that the Government
Order is not applicable to New Okhla
Industrial Development Authority is
contrary to the provisions of clause (c)
of Section 12 of the U.P. Industrial Area
Development Act, 1976. Therefore, the
order dated 14/8/2005 is quashed. The
Government Order dated 22.10.2002 is held
to be applicable on the New Okhla
Industrial Development Authority, created
under the U.P. Industrial Area Development
Act if it is subsisting……..”
(underlining ours)
As regards claim of Sarvpriya and Shivalik that
Government Order dated 22nd of October, 2002 shall
also govern their case, the plea of the State
Government is that there are two kinds of authorities
which are constituted under two different enactments,
namely, the U.P. Urban Planning and Development Act,
1973 and the U.P. Industrial Area Development Act,
1976. According to the State Government, the
authorities constituted under U.P. Urban Planning and
Development Act function under the overall
administrative control of the Department of Housing
and Urban Planning whereas the Industrial Development
Authorities like NOIDA are constituted under the U.P. JUDGMENT Industrial Area Development and it is not within
administrative control of the Department of Housing
and Urban Development. In fact, the Industrial
Development Department of the State Government is its
administrative department.
Mr. L.N. Rao, Senior Advocate appearing on behalf
of the appellant submits that neither Khodaiji
Committee’s recommendation nor the order of the State
Government dated 22nd of October, 2002 govern the case
of Sarvpriya and Shivalik and, therefore, the order
passed by the High Court is vulnerable. Mr. A.K.
Ganguli, Senior Advocate, Mr. Jitendra Mohan Sharma,
Advocate representing Sarvpriya and Shivalik
respectively, however, contend that the functions of
the Development Authority and the Industrial
Development Authority being the same, the
notification of the State Government in the
Department of Housing dated 22nd of October, 2002
shall also apply to NOIDA and the High Court did not commit any illegality by directing for consideration of their case in the light of the aforesaid order.
They also submit that there is no justification to
deny the benefit of Khodaiji Committee’s
recommendation to both the societies. Mr. S.R.
Singh, Senior Advocate appearing on behalf of the
State of U.P. is emphatic that neither Khodaiji
Committee’s recommendation nor the Government Order
dated 22nd of October, 2002 issued by the Housing
Department shall have any bearing for deciding the
claim of both the societies.
In view of the rival submissions, the first
question falling for our determination is as to
whether the Khodaiji Committee’s Report covers the
case of the two societies herein. It seems that
various cooperative housing societies which had
purchased land falling in the industrial development
area of NOIDA represented for allotment of land.
NOIDA in its 15th Meeting held on 19th June, 1977
resolved to constitute a sub-Committee to negotiate
with the representatives of the various cooperative housing societies.JUDGMENTMr. B.J. Khodaiji, the then Commissioner and Secretary, Housing and Urban
Development Department of the State Government
besides other officers constituted the said
Committee. The report of the Khodaiji Committee has
been placed before us. From the report, it appears
that sub-Committee held several meetings and made
various recommendations including the following, with
which we are concerned in the present appeals. The
recommendations so made read as follows:
“2. Only one plot per member should be
given to members of these sixteen
Cooperative Housing Societies.
3. Only those members of Cooperative
Housing Societies will be entitled to get
plots in NOIDA who were bonafide members
as on 1.5.1976 which shall be duly
certified by a competent Authority in this
respect i.e. Dy. Registrar, Co-
operative Housing Societies, Meerut
Division.”
From the aforesaid it is evident that the
Committee made recommendation for allotment of one
plot per member to the members of sixteen specified
cooperative housing societies and, while doing so,
it further observed that only those members shall JUDGMENT
be entitled to get plots who were bonafide members
as on 1st of May, 1976. Both the societies with
which we are concerned in the present appeals do
not find place in the recommendation of the
Khodaiji Committee and further, it is not their
case that they were even existing on 1st of May,
1976. It seems that the attention of the High Court
was not drawn to the aforesaid paragraphs of the
Report of the Khodaiji Committee and, therefore,
the High Court fell into error in observing that
the “report simply talks about the Cooperative
Housing Societies irrespective of the year of
registration”. The passage from Khodaiji Committee
Report quoted above makes it abundantly clear that
“only those members of Cooperative Housing
Societies will be entitled to get plots in NOIDA
who were bonafide members as on 1.5.1976”. If the
society did not exist on that date there is no
question of their being members of the society on
the date specified. In that view of the matter,
there is no escape from the conclusion that the recommendation of Khodaiji Committee shall not enure to the benefit of the two societies. Hence,
we are of the opinion that the High Court erred in
holding that the denial of benefit of Khodaiji
Committee’s Report to Sarvpriya is arbitrary and
discriminatory. We, thus, have no option but to
disapprove this line of reasoning of the High
Court.
Now we proceed to consider the second question
required to be answered in these appeals i.e.
whether NOIDA is bound by the Government Order
dated 22nd of October, 2002. To answer this
question it shall be appropriate to examine the
scheme of Uttar Pradesh Urban Planning and
Development Act, 1973 (President’s Act No. 11 of
1973) and Uttar Pradesh Industrial Area Development
Act, 1976 (U.P. Act No. 6 of 1976). NOIDA is an
industrial development authority constituted by the
State Government of Uttar Pradesh in exercise of
its powers under Section 3 of U.P. Act No. 6 of
1976. Authority under this Act can be constituted for any industrial development area and such areas would be those which have been declared as such by
notification by the State Government. The object
of the industrial development authority, as is
evident from Section 6 of the Act, is to secure
planned development of the industrial development
areas. Its functions include providing
infrastructure for industrial, commercial or
residential purposes as also to allocate and
transfer either by way of sale or lease or
otherwise, plots of land for the aforesaid
purposes. President’s Act No. 11 of 1973 is
another Act aimed to provide for the planned
development of certain areas of the State and
Section 3 and 4 thereof confer power on the State
Government to declare an area to be developed as a
development area and constitute development
authority for that area. Section 41 of this Act
vests power on the State Government to issue
direction for “efficient administration of the Act”
and casts duty upon the development authority, its
Chairman or the Vice-Chairman to carry out such direction. It reads as follows:
“41. Control by State Government.-(1) The
Authority, the Chairman or the Vice-
Chairman shall carry out such directions
as may be issued to it from time to time
by the State Government for the efficient
administration of this Act.
(2) If in, or in connection with, the
exercise of its powers and discharge of
its functions by the Authority, the
Chairman or the Vice-Chairman under this
Act any dispute arises between the
Authority, the Chairman or the Vice-
Chairman and the State Government, the
decision of the State Government on such
dispute shall be final.
(3) The State Government may, at any time,
either on its own motion or on application
made to it in this behalf, call for the
records of any case disposed of or order
passed by the Authority or Chairman for
the purpose of satisfying itself as to the
legality or propriety of any order passed
or direction issued and may pass such
order or issue such direction in relation
thereto as it may think fit:
Provided that the State Government
shall not pass an order prejudicial to any
person without affording such person a
reasonable opportunity of being heard.
(4) Every order of the State Government
made in exercise of the powers conferred
by this Act shall be final and shall not
be called in question in any court.”
Section 12 of U.P. Act No. 6 of 1976 provides for
application of certain provisions of President’s JUDGMENT Act No. 11 of 1973, including Section 41 and same
reads as follows:
“12.Applications of certain provisions of
President’s Act XI of 1973.- The provision
of Chapter VII and Sections 30, 32, 40,
41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 53
and 58 of the Uttar Pradesh Urban Planning
and Development Act, 1973 as re-enacted
and modified by the Uttar Pradesh
President's Act (Re-enactment with
Modifications) Act, 1974, shall mutatis
mutandis apply to the Authority with
adaptation that-
(a) any reference to the aforesaid Act
shall be deemed to be a reference to this
Act;
(b) any reference to the Authority
constituted under the aforesaid Act shall
be deemed to be a reference to the
Authority constituted under this Act; and
(c) any reference to the Vice-Chairman of
the Authority shall be deemed to be a
reference to the Chief Executive Officer
of the Authority.”
It is relevant here to state that in order to
come to the conclusion that the order of the State
Government in the Housing Department dated 22nd of
October, 2002 would apply to the NOIDA, it has been observed that JUDGMENTsuch an order has been passed by the Housing Department in exercise of the power under
Section 41 of the President’s Act No. 11 of 1973
and in view of its adaption by section 12 of U.P.
Act No. 6 of 1976, the Government Order shall apply
to NOIDA. President’s Act No. 11 of 1973 is an
earlier Act whereas U.P. Act No. 6 of 1976 is a
later Act. As is well known, incorporation of the
provisions of the earlier Act into a later Act is a
legislative device adopted for the sake of
convenience and in order to avoid verbatim
reproduction of the provisions of the earlier Act
into the later Act. When such a legislation is
made by incorporation, the provisions so
incorporated become part and parcel of the later
Act. In other words, those provisions are
considered bodily transposed into it. Its legal
effect is that those sections which have been
incorporated in the later Act had been actually
written in it with pen. In view of the aforesaid,
be deemed to have been incorporated in U.P. Act No. 6 of 1976 with adaptation and the authority constituted under President’s Act No. 11 of 1973
shall be deemed to be in reference to an authority
constituted under U.P. Act No. 6 of 1976 and the
Vice-Chairman of the authority under President’s
Act No. 11 of 1973 would be the Chief Executive
Officer of the Authority under the U.P. Act No. 6
of 1976. But will that mean that the order of the
State Government in exercise of the power under
apply to the Industrial Development Authorities
constituted under Section 6 of U.P. Act No. 6 of
1976? In our opinion, the power exercised under
not be deemed to be an order under Section 12 of
the U.P. Act No. 6 of 1976 merely on the ground
that Section 41 has been included in the Act by
incorporation which, as observed earlier, is a
device adopted for the sake of convenience. The
order dated 22nd of October, 2002 has been issued by
the Housing Department of the State Government and
it has been addressed to Housing Commissioner, U.P. Awas Vikas JUDGMENTParishad, Vice-Chairman of all Development Authorities and Managing Director of
the U.P. Cooperative Awas Sangh but not addressed
to the Industrial Development Authorities. The
Vice-Chairman of the Development Authorities cannot
be read to mean the Chief Executive Officer of the
Industrial Development Authority constituted under
U.P. Act No. 6 of 1976. It needs no emphasis that
such an order can be passed in respect of the
Industrial Development Authority in view of Section
12 of U.P. Act No. 6 of 1976 by such Departments of
the State Government which have administrative
control over the Industrial Development Authority.
However, we hasten to add that in case such a power
is exercised by such a Department of the State
Government it shall have no bearing on the
Development Authorities constituted under the
President’s Act No. 11 of 1973. The decision taken
by one administrative department concerned with
Industrial Development Authority shall not apply to
the Development Authorities within administrative
control of another Department of the State Government or vice versa unless a conscious decision is taken to apply the same to both the
categories of authorities in case the rules of
executive business of the State so permits.
In view of what we have observed above there is
no doubt in our mind that the Government Order
referred to above shall not be applicable to the
appellant authority.
Both the grounds given by the High Court while
issuing the impugned direction, in our opinion,
being unsustainable in law, same can not be allowed
to stand.
In the result, we allow these appeals, set aside
the impugned judgments and orders of the High Court
and dismiss the writ petitions, but without any
order as to costs.