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PETITIONER: KENDRIYA KARAMCHARI SAHKARI GRIH NIRMAN SAMITI LTD. &ANR.

       Vs.

RESPONDENT: NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY & ORS.

DATE OF JUDGMENT28/10/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) VENKATACHALLIAH, M.N. (J)

CITATION:  1988 AIR    1            1988 SCR  (1) 662  1988 SCC  (1)  63        JT 1987 (4)   184  1987 SCALE  (2)856

ACT:      U.P. Industrial  Development Act,  1976: Secs.  3, 6, 8 and 12-New okhla Industrial Development Area-Development of- Acquisition of  lands owned  by Group Housing Societies-G.O. dated 9.4.1980-Nature  and effect  of-Lands  of  Cooperative House Building  Societies not  to be acquired ’as far as may be’-Whether directory/mandatory-Building  Bye-Laws  1977-New Okhla Industrial Development Authority Refusal of permission for development of land of Housing Society-Validity of.

HEADNOTE: %      The U.P.  Industrial Development  Act, 1976 was enacted to  provide   for  the  constitution  of  an  Authority  for development of  certain areas  in the  State into industrial and urban  township. By  a notification  dated 17.4.1976 the "New Okhla  Industrial Development Authority was established and "New Okhla Industrial Development Area" was declared.      New Okhla  Industrial Development  Authority  made  the Building bye-laws,  1977, and the Authority in 1978 prepared a plan wherein the land of the Society was earmarked as ’low density residential area’.      The appellant-Society submitted an application on March 14, 1978  with a plan for approval and permission to develop its land.  By letters  dated 12th  June/3rd July,  1978  and 22.11.1978, Respondent  No. 1  intimated the appellants that permission had  been refused for development of the land and that the entire land of the Society had not been acquired.      The appellants  filed a  writ petition  before the High Court, assailing  refusal of  permission  without  recording proper and  germane reasons,  and praying  for direction  to respondents not  to  acquire  the  lands  belonging  to  the Society, and  to permit its development according to the lay out plan submitted by it. 563      The High  Court granted  an interim  order of  stay  of dispossession.      During the  pendency of  the writ petition a G.O. dated 9.4.1980 was  issued  intimating  that  the  Government  had decided that  the lands acquired by those Co-operative House Building Societies, which satisfied the conditions laid down

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therein should not be acquired as far as may be.      The appellants’  representation for  reconsideration of the matter  in the  light of  the above Government order was rejected, on  the ground that the G.O. was an administrative instruction and  could not  be construed  as mandatory, that the Government’s  power to  acquire land for public purposes under the Land Acquisition Act, 1894 was not prohibited, and that the object of the Act, to ensure planned development of the  area   for  industrial  and  urban  township  would  be frustrated,  if   individual  societies  were  permitted  to develop their lands themselves.      The High Court dismissed the writ petition holding that the Government’s  orders dated  July 27,  1967 and  April 9, 1980, having  not mentioned the Chief Executive officer, New Okhla Industrial Development Authority, the intention of the State Government was to exclude the Chief Executive officer, New  Okhla   Industrial  Development   Authority  from   its application,  that   on  the  basis  of  these  G.  Os.  the appellants could not claim exemption from acquisition by New Okhla Industrial  Development Authority under the provisions of U.P. Act VI, 1976.      Aggrieved  by   the  order   of  the  High  Court,  the appellants filed a special leave petition before this Court, and also  a writ  petition challenging  the validity  of the change made  by New  Okhla Industrial  Development Authority during the  pendency of the Writ Petition in the Master Plan by showing the appellant’s land as Regional Park.      Dismissing the  appeal by  special leave,  and the writ petition, ^      HELD: 1.1 The sole object of the 1976 Act is to develop certain  areas  in  the  State  into  industrial  and  urban township in a planned way by the Authority constituted under the Act  and as  such the  cooperative societies  cannot  be permitted to develop their lands for the purpose of building houses haphazardly. This will frustrate the entire object of the Act. The Government has power to acquire land for public purposes under the Land Acquisition Act, 1894. [669B-D] 664      1.2 The  application of  the appellant-Society was duly considered and  the Authority  refused permission  on  their application for relevant and cogent reasons. [670B]      1.3 The  G.O. dated  9.4.1980 merely  states  that  the lands of Co-operative House Building Societies are not to be acquired "as  far as  may  be".  Hence  the  order  is  only directionary and  cannot  be  considered  to  be  mandatory. Moreover, this  order is  not a  statutory  one,  being  not issued under  any statutory  provision. It  is  at  best  an administrative instruction.  It does  not create  an express bar on  the power  of the Government to acquire the land for public purposes under the Land Acquisition Act. [669A-B]      1.4 The Authority, which has been given the power under the Statute  to prepare  the  development  plan  demarcating therein  the  sites  to  be  developed  for  development  of industrial,  residential  and  other  purposes  for  planned development of  the  industrial  and  urban  townships,  has necessarily the  implied power  to alter  or modify the Plan showing the  land meant  for the  particular user. Change of user of  the land  by altering  the plan  is  not  arbitrary because it  is for  the Authority to determine and demarcate the site  to be  developed and used for a particular purpose to secure  planned development  of the  industrial township. The plan  was based  on the  recommendations of  the  Expert Committee which  were approved  by the State Government. The alteration in  the user of appellant’s land does not lead to

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any hostile descrimination. [670E-H]      1.5 A proposal for acquisition of 325-353 acres of land in the  village in  which the  appellant Society’s  land  is situated was  sent to  the Collector,  who agreed  to it and after approval  from Government,  sent a  notification under section 4(1) of the Land Acquisition Act to Government Press for publication.  A  Draft  for  Rs.  70  lakhs,  being  the approximate amount  of 20% of compensation, has been sent to Collector by  the Authority. In the circumstances, it cannot be said  that no  steps have  been taken  by the  New  Okhla Industrial Development  Authority to  acquire the  Society’s land. The  question of allotment of alternative sites to the members of  the society  does not  arise as the lands of the society have not yet been acquired. [671C-F]

JUDGMENT:      ORIGINAL/CIVlL APPELLATE  JURlSDlCTION:  Writ  Petition No. 557 of 1983 etc.         (Under Article 32 of the Constitution of India) 665      V.M. Tarkunde,  A.K. Sen, S. Markandeya and N.D.B. Raju for the Petitioners.      S.N. Kacker,  Raju Ramachandran and Mrs. Shobha Dikshit for the Respondents.      The Judgment of the Court was delivered by      B.C. RAY,  J. This  civil appeal  by special  leave  is directed against  the judgment  and  order  passed  by  High Court, Allahabad  dismissing the  writ petition filed by the Co-operative Housing  Society formed  as Kendriya Karamchari Sahkari  Grih   Nirman  Samiti   Ltd.  and   its   President challenging the  order of  refusal of  permission to the lay out plan  submitted by  them to  the New  Okhla  Development Authority to  be hereinafter  referred in brief as NOIDA and also refusing  to exempt  the lands belonging to the Society falling within NOIDA Area from acquisition. The facts giving rise to this appeal are shortly as follows:-      The U.P.  Industrial Development  Act, 1976 was enacted      with the  object to  provide for the constitution of an      Authority for development of certain areas in the State      into industrial  and urban township. This Act came into      operation from April 16. 1976. A notification No. 4157-      HX/XVIII-II dated  17.4.1976 was published constituting      under  Section  3  of  the  said  Act  the  "New  Okhla      Industrial  Development  Authority"  and  declared  the      industrial development  area comprising  of 37 villages      mentioned in  the schedule  to be "New Okhla Industrial      Development Area".  In the  said schedule  item No.  16      referred  to   village  Chhalera   Bangar  wherein  the      Society’s lands  are situated. Section 6(2) of the said      Act empowers  NOIDA to  acquire land  in the industrial      development  area   either  by   agreement  or  through      proceedings under  the Land  Acquisition Act,  1894. It      also confers  powers on the Authority to prepare a plan      for the  development of industrial development area and      to lay  down the purpose for which a particular site on      plot of  land shall  be  used  namely  for  industrial.      commercial  or   residential  purpose   or  any   other      specified purpose  in the area. Section 8 confers power      on the  Authority to  issue directions  in  respect  to      matters specified therein for erection of building. The      NOIDA made certain directions under the nomenclature of      Building bye-laws, 1977. The Authority in 1978 prepared      a plan wherein the land of the Society was earmarked as

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    ’low density residential area’. The ap- 666      pellant society  submitted an  application on March 14,      1978 with  plan for  approval and permission to develop      the land  to NOIDA in accordance with the provisions of      Building Bye-laws.  The Society  on June  14, 1978  has      sent a  letter to  NOIDA intimating  that no  order was      made in  respect of  the development  plan submitted by      them till  that date  and if  no order  is made  by the      Authority within a period of 20 days of this letter the      Authority  shall   be  deemed  to  have  permitted  the      proposed work in accordance with Bye-law No. 8.2 framed      by the  Authority. On  12th  June/3rd  July,  1978  the      respondent No.  1, the  Chief Executive  officer, NOIDA      intimated the appellant No. 2, President of the Society      that permission has been refused for development of the      land by  the Society according to the plan submitted as      it is the function of the Authority to prepare plan for      development of  its  industrial  development  area,  to      demarcate and  develop sites for industrial, commercial      and residential  purposes according  to the plan and to      provide amenities for planned development of the area.      On 22.11.1978  NOIDA  replied  to  the  letter  of  the appellants dated  19.11.1978 stating that the entire land of the Society  has not  been acquired. The area falling within the  urbanised  limits  is  to  be  acquired  to  check  the unauthorised development  on either side of the DSC road and to have land for widening of the DSC. For these  reasons, it is not possible to approve the lay out plan submitted by the appellant society.      The appellants  an April 28, 1979 filed a writ petition before the  High Court,  Allahabad assailing  the refusal of permission  as  contained  in  letters  dated  3.7.1978  and 22.11.1978 without  recording proper and germane reasons and praying for  a writ  or order or direction quashing the said letters and  for a  suitable  writ  or  order  or  direction commanding  the   respondents  not   to  acquire  the  lands belonging to the Society. The petitioners further prayed for issue  of  a  writ  or  order  or  direction  directing  the respondent No. 1, NOIDA to permit the Society to develop its land according to lay out plan submitted by it.      On 3.7.1979, the High Court granted an interim order of stay of  dispossession. By  order dated 23.8.1979, the Court directed that  the said  interim order  would continue until further orders.      During the  pendency of  the writ petition the G.O. No. 1634/37-2-8a29  H.B./79   dated  9.4.1980  has  been  issued intimating the authorities 667 mentioned therein  that the  Government after  reconsidering the question of acquisition of the lands acquired by the Co- operative House  Building Societies  has decided  that it is not desirable  that the  lands of  such  Co-operative  House Building Societies  are acquired  by the  U.P.  Housing  and Development Board,  Development Authorities etc. It has also been stated  therein that  keeping in view the above factors the lands  of the  Co-operative House Building Societies who satisfy the  conditions laid  down  therein  should  not  be acquired  as   far  as   may  be.   The  petitioner  made  a representation to the Chief Executive officer, NOIDA to take into  consideration   the  above  government  order  and  to sanction the  plan for  development  submitted  by  them.  A supplementary affidavit  has also  been filed  in  the  writ petition. The  High Court  on 22.12.1980  observed that  the respondent was  expected to  give his  detailed reasons  for

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refusal of  permission  to  the  application  filed  by  the Society within a month or so.      Pursuant to  the above  order the  Chairman  and  Chief Executive officer,  NOIDA by  its letter  dated  23.  1.1981 intimated the  President of  the Society  that  it  was  not possible to  sanction the  Society’s  lay  out  plan.  NOIDA published a notification in Newspapers including "Nav Bharat Times" in its issue dated June 4, 1980 stating that there is total prohibition  of sale  or purchase  of land acquired in favour  of  NOIDA  and  any  construction  work  is  totally prohibited. It  was further  mentioned that  in the notified area the  building construction  must be  in accordance with the rules  made and  directions  issued  by  NOIDA  and  not otherwise.      On  August  13,  1981,  NOIDA  sent  a  letter  to  the President of the petitioner Society stating that the o dated 9.4.1980 is  an administrative  instruction and it cannot be construed as  mandatory. Upon  its basis  it cannot  be said that the  Government’s power  to  acquire  land  for  public purposes under the Land Acquisition Act, 1894 is prohibited. The object  of the  Act is  to ensure planned development of the Area  for industrial  and urban  township. If individual societies are  permitted to  develop their  lands themselves there shall  be chances  of haphazard growth in the area and it will  not be  possible to  ensure a proper industrial and urban township  in the different sectors according to Master Plan.  For  these  reasons,  it  is  not  possible  for  the Authority to  permit the  Society to  develop its  land  for residential purposes.  The application  has therefore,  been rejected.      After hearing  the parties  the said  writ petition was dismissed with  costs by  the High  Court, Allahabad holding inter alia that the H 668 Government orders  dated July  27, 1967  and April  9,  1980 having not mentioned the Chief Executive officer, NOIDA, the intention of  the State  Government was to exclude the Chief Executive officer,  NOIDA from  its application, that on the basis  of  these  G.Os.  the  petitioners  could  not  claim exemption of  their land from acquisition by NOIDA under the provisions of  U.P. Act  VI of 1976, that the permission was clearly refused  by NOIDA  to  the  plan  submitted  by  the petitioner with his application for permission and there was no scope for deemed sanction. It was further held that there was no promissory estoppel.      The appellants  feeling aggrieved  by this judgment and order preferred the instant application for special leave to appeal before  this Court.  During the  pendency of the writ petition before  the High  Court NOIDA  made a change in the Master Plan  by showing  the area in which petitioner’s land is situated  as agricultural  land i.e.  Regional Park.  The appellants filed  a writ  petition No.  557 of  1983 in this Court challenging the validity of the plan and for a writ or order or direction for quashing the revised "Master Plan".      From the arguments advanced by the learned counsels for the parties  the following points arise for consideration of this Court:-      The first  point urged  before this  Court is  that the G.O. dated  July 27,  1967 and the G.O. dated 9.4.1980 which was in  continuation of  the earlier  G.O.  dated  27.7.1967 imposes a  ban on  NOIDA to  acquire the  land  of  the  Co- operative  House   Building  Societies   who   satisfy   the conditions mentioned in the G.O. dated 9.4.1980. It has been submitted that  under section  12 of  the said Act No. IV of 1976, the  provisions of  certain sections including Section

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41 of  the U.P.  Urban Planning and Development Act, 1973 as re-enacted and  modified shall mutatis mutandis apply to the Authority. Clause (c) of Section 12 specifically states that any reference to the Vice-Chairman of the Authority shall be deemed to  refer to  the  Chief  Executive  officer  of  the Authority. The said Government order will apply to NOIDA and the lands  of the  appellant society which is a co-operative house building  society, cannot  be acquired  in view of the said Government  orders. This  contention is not sustainable for the  reasons stated  hereinafter. Under.Section 12(c) of the said  Act the  Government order  is to be deemed to have been addressed  to the Chief Executive officer, NOIDA as the same  was   addressed  to   all  Vice-Chairmen,  Development Authorities, U.P.  Section 41  enjoins  the  Authorities  to comply with  the  directions  contained  in  the  Government order. The 669 G.O. dated  9.4.1980 merely  states that  the lands  of  Co- operative House  Building Societies  are not  to be acquired "as  far  as  may  be".  This  Government  order  cannot  be considered to  be mandatory  but directory  in as much as it merely says  that the  lands of  co-operative house building societies should  not be acquired as far as may be. Moreover this order is not a statutory one being not issued under any statutory  provision.   It  is  at  best  an  administrative instruction. The  contention  that  this  order  creates  an express bar  on the power of the Government to acquire lands of co-operative  house building  societies  is  without  any substance. The  sole object  of the  1976 Act  is to develop certain  areas  in  the  State  into  industrial  and  urban township in a planned way by the Authority constituted under the Act  and as  such the  co-operative societies  cannot be permitted to develop their lands for the purpose of building houses haphazardly. This will frustrate the entire object of the Act.  The contention that the lands of the societies are exempted from  acquisition cannot  be sustained being devoid of any  merit. The  Government has power to acquire land for public purposes under the Land Acquisition Act, 1894.      It has  been urged  that in accordance with bye-law 5.2 framed by the Authority under Section 8 of the said Act, the appellant society submitted an application on March 14, 1978 for development  of their  land to  the Authority  to accord sanction to  the lay  out plan  and to permit the Society to develop  the   land.  As   no  order  was  communicated  the appellants sent  a  notice  to  the  Authority  drawing  the attention of  the Authority that if no order was made within 20 days of this letter then the Authority would be deemed to have permitted  the proposed  work. This  letter  was  dated 14.6.1978 and  the Authority  by its  letter dated  3.7.1978 intimated the  appellant society  that since  NOIDA has been empowered to  prepare a  plan for planned development of its industrial  development   area  by   demarcating  sites  for industrial, commercial and residential purposes according to plan and  to provide  for infrastructures for these purposes to secure  planned development, permission cannot be granted to the  application for  development  of  the  area  by  the society.  The  Deputy  Chief  Executive  officer  also  sent another letter  to the  President of  the Society  on 22.11. 1978 intimating  that the  Society had already been informed that the case submitted by it for sanction of the scheme for development of  land in  village Challera  Bangar cannot  be entertained. Again  pursuant to  the order  of court made in writ petition  No. 4220 of 1979, the respondent Authority by letter dated  August 13,  1981  intimated  the  Society  the detailed reasons  for refusal  of  permission  to  the  plan

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submitted by the appellant society to develop its land as it will frustrate planned development 670 of the industrial development area into industrial and urban townships. The  contention  of  the  appellants  that  their application for  permission to  develop has been rejected on extraneous consideration  and not for germane reasons is not at all  tenable. The application was duly considered and the Authority  refused   permission  on  their  application  for relevant and cogent reasons.      It has been contended that in the first Master Plan the lands of  the appellant’s  society were shown to be situated in low  density residential area. This Plan has been altered unilaterally by  showing it as agricultural land. Thereafter this land  was shown as Regional Park in the Master Plan. It has been  submitted that  this alteration or modification in the  Plan   has  been   made  with  a  view  to  defeat  the petitioners’  claim  for  immunity  from  acquisition.  This alteration  in   the  Plan  is  arbitrary  in  as  much  the appellants have  not been  given  any  opportunity  to  file objections against  such alteration.  In no  other area  the NOIDA Authority  has altered  its plan.  The appellants have been singled  out for  hostile  discrimination  contrary  to Article 14  of the  Constitution. Under  Section 6(2) of the Act the  Authority has to prepare a plan for the development of the  industrial development  area and  to  demarcate  and develop sites  for industrial,  commercial  and  residential purposes, to  lay down  the purpose  for which  a particular site or  plot of  land shall  be used namely for industrial, commercial and  residential purpose  or any  other specified purpose in  such  area.  The  Authority  prepared  the  Plan showing  therein   the  sites   for  residential  and  other purposes. The Authority which has been given the power under the Statute  to prepare  the  development  plan  demarcating therein  the  sites  to  be  developed  for  development  of industrial, residential  and other  purposes for the planned development  of  the  industrial  and  urban  townships  has necessarily the  implied power  to alter  or modify the Plan showing  the   land  meant  for  the  particular  user.  The submission that  the change  of user of the land by altering the plan is arbitrary is without any substance in as much as it is  for the  Authority to  determine and to demarcate the site to  be developed  and used  for a particular purpose to secure planned  development of  the industrial  township. It appears from  the counter  affidavit filed  on behalf of the respondents  to   the  writ   petition  that  the  Plan  was formulated and it was approved by the Authority in 1979. The Plan  was   based  on  the  recommendations  of  the  Expert Committee and the recommendations were approved by the State Government. The other submission that this alteration in the user  of   appellants’  land   in  Plan   leads  to  hostile discrimination is also without any substance as we have held herein before  that the  G.O. dated 9.4.1980 does not in any way create any 671 embargo on  the power  of the Government to acquire the land for public purposes under the Land Acquisition Act.      It has  been submitted  in  this  connection  that  the Authority (NOIDA)  has not  taken any steps to acquire their land and  also has  not taken  any steps  to  provide  their members with alternative sites. This submission also has got no merit  in as much as the appellants filed a writ petition before the  High Court  on April 28, 1979 praying for a writ or order  or direction  commanding the  respondents  not  to acquire the land belonging to them. An interim order of stay

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was obtained  from the  Court  and  it  continued  till  the dismissal of  writ petition. A special leave petition out of which this appeal arises has been filed and an order of stay of dispossession has been obtained from this Court. The stay is continuing. It is pertinent to mention in this connection that a  proposal for acquisition of 325.353 acres of land in village Challera  Bangar, Pargana and Tehsil Dadri, District Gaziabad was  sent by  NOIDA to  the Collector,  Gaziabad on 11.2.1985. The Collector after examining the proposal agreed to  the   same  and  requested  the  Government,  Industries Department to  issue notification under Sections 4, 5 and 17 of Land  Acquisition Act, 1894. The Government however, felt that there  was no  necessity to  issue  notification  under Section 17  of  the  Land  Acquisition  Act  .  Accordingly, notification under  section 4(1)  was prepared  and sent  to Government Press,  Lucknow on  11.3.1987. The  Authority has sent a  sum of  Rs. 70 lakhs by draft to the Collector being 20% of the approximate amount of compensation. On 3 1.7.1987 NOIDA sent  a letter  requesting  the  Government  Press  to expedite  publication   of  Notification   issued   by   the Collector, Gaziabad.  This  is  evident  from  the  counter- affidavit of  Tehsildar, Udai  Singh. In these circumstances it is futile to contend before this Court that no steps have been  taken  by  NOIDA  to  acquire  appellants’  land.  The question of allotment of alternative sites to the members of the Society  does not arise as their lands have not yet been acquired.      For the  reasons aforesaid,  the appeal  and  the  writ petition are dismissed with costs. N.P.V.                          Appeal & Petition dismissed. 672