http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  1569 of 2004

PETITIONER: New Okhla Industrial Development Authority

RESPONDENT: Kendriya Karamchari Sahkari Grih Nirman Samiti

DATE OF JUDGMENT: 24/04/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Challenge in this appeal is to the legality of judgment  rendered by a Division Bench of the Allahabad High Court  allowing the writ petition filed by the respondent.   

Background facts in a nutshell are as follows:

       Appellant - New Okhla Industrial Development Authority  (in short the ’NOIDA’) was constituted under the provisions of  Section 3 of the Uttar Pradesh Industrial Area Development  Act, 1976 (in short the ’Act’).  The main object of the Act was  planned development of an industrial development area.  For  the said purpose State of Uttar Pradesh acquired lands falling  in various villages by invoking the provisions of the Land  Acquisition Act, 1894 (in short the ’LA Act’)  by issuing various  notifications. This Court in Kendriya Karamchari Sahkari  Nirman Samiti Ltd. & Anr. v. The New Okhla Industrial  Development Authority & Ors.  (AIR 1988 SC 1) held that  lands belonging to cooperative societies are not exempt from  acquisition by the State for the purpose of planned  development of Noida area.  Since the land of a number of Co- operative Societies were compulsorily acquired, a decision was  taken by the NOIDA that land equivalent to 40% of the land  holding of such societies would be made available for  allotment to the members of the societies whose land was  acquired.  The respondent - society represented vide its letter  dated 30th April 1994 that it owned 292 bighas of land and on  that basis moved for allotment of land for the benefit of its  members.  In response a letter dated 14.6.1994 was written by  NOIDA that the respondent’s request for allotment of  residential plots is under consideration and as soon as the  decision is taken necessary information shall be given.  By  letter dated 8.8.1994 appellant asked the respondent - society  to send a list of its members duly verified by the District  Assistant Registrar Cooperative Societies, Ghaziabad.  A list  was sent  purportedly verified by the Assistant Registrar of  Cooperative Societies.  Acting on the basis of representation  made by the Society and believing the same to be correct,  appellant proceeded to allot land equivalent to 40% of 292  bighas.  The respondent wrote a letter dated 9.9.1994  indicating details of such 292 bighas.  In February and March,  1995 allotment letters were issued to individual members  totaling 1754 for land measuring 3,23,650 sq.m.  In paragraph  21 of the allotment letter it was stipulated as follows :

"21. CONSEQUENCES OF MIS-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

REPRESENTATION:    

If the allotment/lease of the plot is  obtained by any misrepresentation,  suppression of material fact, mis-statement of  fraud, allotment/lease may be  cancelled/determined and the possession of  the plot and building thereon (if exists) may be  resumed by the Chief Executive Officer or his  duly authorized representative and the  allottee/lessee will not be entitled to any  compensation.  Entire money deposited will  also be forfeited in favour of the authority.   Besides, Authority will be at liberty to initiate  legal action against such allottee/lessee."

Accordingly, payments in respect of such allotments to  1754 persons were accepted. Complaints were received from  various persons who alleged that they were in fact members of  the respondent-society, but their names were not forwarded by  the Society for allotment of plots.  In view of these complaints  and with a view and intent to check correctness of the  membership list, appellant requested Secretary of the  respondent-Society on 1.5.1996 to give the following details :

1.      Year-wise detailed information of members enrolled by  the society;

2.      Year-wise membership fees deposited by the members  to obtain membership of the society and further year- wise details regarding deposit of such an amount by  the society.

3.      Year-wise details of pass book containing entries  deposit of membership fees.

4.      Details of cash book, balance sheet etc. from the  inception of the society till 1988.

On 15.5.1996 President of the respondent-Society Sh.  Balbir Singh informed the appellant that he had asked the  Secretary to place relevant records before him. But no  documents were forwarded. Letter dated 1.5.1996 was  followed by another letter dated 21.6.1996 reiterating that if  documents asked for were not furnished, allotments would be  cancelled. Public notice was given on 22.6.1996 and  25.6.1996 as no documents were furnished.  On 26.7.1996  the President of the respondent-Society requested grant of  further 15 days’ time to furnish the documents.  On 4.10.1996  a letter was received from the office of the Governor, Uttar  Pradesh along with complaints from various persons who  claimed to be members of the respondent-Society and whose  names were not forwarded by the respondent-society for  allotment of plots.  A list of membership of the respondent- society duly authenticated by the Registrar, Uttar Pradesh  Housing and Development Board, Lucknow indicated that only  546 members were enrolled by the Society upto 27.4.1987.         Name of many persons mentioned in this list and those  who had sent complaints regarding exclusion were not found  in the list purported to have been verified by Sh. Balbir Singh,  president of the respondent-Society, who had earlier claimed  to have verified the membership as Assistant Registrar-  Cooperative societies.  In these circumstances an enquiry was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

conducted by the Deputy Chief Executive officer of the  appellant.  In this enquiry on the basis of the information  collected, award given by the Additional District Magistrate on  17.8.1996 and the report of the District Magistrate, Ghaziabad   dated 24.1.1997 it was revealed that the Society had made  gross misrepresentation that 292 bighas of land had been  acquired and a false claim for allotment of 40% of the said  areas was set up.  It was further revealed that Society had  received compensation for land acquisition in respect of only  34 bighas of land.  Interestingly 65 bighas of land recorded in  the name of the Society had vested in the State Government in  terms of Section 154 of the Uttar Pradesh Zamindari Abolition  and Land Reforms Act.  More curiously, in respect of 118  bighas of land from the remaining 192 bighas of land  compensation had been taken by the farmers and not by the  respondent-Society. Therefore, a show cause notice was issued  on 8.7.1997 requiring the respondent specifically to furnish  the following documents:

1.      Year-wise details of payments made for purchase of land  and concerned sale deeds.

2.      Year-wise details of receipt of compensation for the land.

3.      Year-wise detailed information of members enrolled by  the society with their full particulars name, age,  parentage and address.

4.      Year-wise membership fees deposited by the members to  obtain membership of the society and further yearwise  details regarding deposit of such an amount by the  society.

5.      Year-wise details of pass book containing entries depot of  membership fees.

 6.      Details of cash book, balance sheet etc. from the  inception of the society till 1988.

7.      Copies of proceedings of the Annual General Meeting for  the each year since inception.

8.      List of original members, if any, submitted at the time of  registration to the housing commissioner/Registrar.

9.      Annual audit report for each year of the society from the  beginning.

Thirty days’ time was given to furnish the document so  that allotment to the extent of 40% of the land acquired from  the society in case of its genuine members could be granted.   It was clearly indicated that in case the details were not  furnished, all the allotments made to the members of the  society would be cancelled and money deposited forfeited.   Legal proceedings were contemplated against office bearers of  the society for playing fraud.

In response, the respondent-Society furnished a list of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

members enrolled between 1.4.1987 to 31.5.1987 and stated  that the remaining documents would be sent soon. On  4.10.1997 the respondent-Society sent another letter  alongwith which another list of members enrolled between  1.6.1987 to 31.10.1987 was annexed.  Again time was asked  for and assurance was given to furnish other documents.   Despite grant of opportunities and the assurances made,  nothing concrete was placed by the respondent-Society to  substantiate the genuine membership. In these circumstances  cancellation letter was issued on 5.5.1998 indicating that in  view of non-submission of relevant documents and the  malpractice adopted, the allotments were cancelled.  Although  according to the appellant, it was entitled to forfeit the amount  in deposit yet a decision was taken to refund the same to the  members who had earlier been allotted plots.  

Questioning correctness of the cancellation, certain  members of the respondent-society filed a petition before the  MRTP Commission.  The Association was  titled as "Noida  Sector 43 Allottees Welfare Association".  Initially by order  dated 15.5.1988 MRTP Commission granted an order of status  quo.  Subsequently another petition was filed before the MRTP  Commission.  Counter Affidavit was filed by present appellant  before the Commission indicating as to how massive fraud  have been practiced by the respondent.  A rejoinder was filed  by the appellant.  During pendency of the matter before the  Commission, a Writ Petition was filed on 19.11.2001 before  the Allahabad High Court questioning the decision dated  5.5.1998.  On 15.1.2002 the petition before the Commission  was withdrawn by the respondent.  In the writ petition counter  affidavit was filed.  Attention was drawn to order dated  7.3.2003 passed by this Court in I.A. No. 18 of 2002 in Civil  Appeal No. 5502 of 1983.  This court directed the NOIDA to  comply with the direction dated 4.4.1991 and to develop and  bring before this court a housing scheme for 242 members of  the U.P. Residents Society.  Rejoinder was filed on 20.7.2003.  Though appellant requested for time to file further affidavit  and documents prayer was not granted.  The High Court  reserved judgment on that date and by order dated 5.8.2003  the writ petition was allowed.  The judgment is under  challenge in this Appeal.

       Learned counsel for the appellant inter alia submitted  that the High Court entered into disputed questions of fact. It  was specifically brought to the notice of the High Court that  dispute relating to 64 bighas of land was pending before the  Board of Revenue and that in respect of 118 bighas of land  compensation had been taken by the farmers and the factual  scenario clearly indicated as to how  fraud was practiced by  the respondent-Society.  The High Court not only nullified the  effect of the proceedings before the Board of Revenue, but also  gave findings to the effect that fraud was committed by the  farmers and also directed payment of interest.  According to  learned counsel principles of Promissory Estoppel had no  application to the facts of the case, though the High Court  founded its conclusions on those principles.   

       In reply, learned counsel for the respondent submitted  that there was no dispute regarding membership which could  be adjudicated by the appellant.  It was a matter for the Co- operative Societies Authorities.  Even if it is accepted that  some matters were pending before the Board of Revenue that  area can be at the most excluded. But denying entitlement of  40% on that ground is not proper.  Even if the farmers had  taken the compensation, it is a matter between the society and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

the farmers and that had no relevance so far as the present  dispute is concerned.  The report of the Tehsildar clearly  indicated that 292 bighas of land had been acquired from the  society.

Though it is claimed by the respondent that there was no  dispute that 292 bighas of land had been acquired by the  Society, on verification of records the position appears to be  entirely different. It has been all through the stand of  appellant that the Society had misrepresented to be the owner  of 292 bighas of land.  This is a disputed question of title  which was to be established in an appropriate court of law and  the writ petition was not the proper remedy.  Further as  rightly contended by the learned counsel for the appellant, the  High Court’s order practically renders the proceedings before  the Board of Revenue redundant. Findings recorded about the  merits of the proceedings before the Board of Revenue when  the State was not a party in the writ petition is an  impermissible course adopted by the High Court. Even  otherwise, the finding that farmers have practiced fraud is  without any foundation since farmers were not parties in the  writ petition.  The appellant’s effort was to verify  genuineness  of the members who were claimed by the Society to be its  genuine members.  Interestingly at the initial stage the list was  verified by Sh. Balbir  Singh who undisputedly was President  of the respondent-Society.  In spite of several opportunities the  details regarding membership were not furnished.  Obviously  it cannot be said that the appellant was bound to allot land,  even if the membership was not established and it was  established that large number of people were not genuine  members. Allotment in the manner desired by the respondent- Society would be against the very purpose of allotment flowing  from the scheme in question.  In any event highly disputed  questions of fact were involved. The High Court did not  examine that issue in its proper perspective.  It only referred to  some decisions which noted that the High Court is not  deprived of its jurisdiction to entertain a petition under Article  226 of the Constitution, merely because in considering the  petitioner’s right to relief, questions of fact may fall to be  determined.  These judgments have been read out of context.   It is fairly well settled that disputed questions of fact should  not be gone into by the High Court in writ proceedings.  

A High Court is not deprived of its jurisdiction to  entertain a petition merely because in considering petitioner’s  right to relief question of fact may fall to be determined as  pointed out in Gunwant Kaur v. Municipal Committee (AIR  1970 SC 802). In a petition under  Article 226, the High Court  has jurisdiction to try issues of law and fact. Where, however,  the petition raises complex question of  fact, the Court should  not entertain the petition. In Mahanta Moti Das v. S.P. Sahid  (AIR 1959 SC 942) the High Court refused to go into the  question as to whether Trusts were public or private trusts as  the question had involved investigation of complicated facts  and recording of evidence. The view was upheld. Thus, if there  is a question on which there is a serious dispute which cannot  be satisfactorily  decided without taking evidence, it should  not be decided in a writ proceeding (See  Union of India v. T.R.  Verma, AIR 1957 SC 882).  If disputed questions of fact arise  and the High Court is of the view that those may not be  appropriately tried in a writ petition, the High Court has  jurisdiction to refuse to try those questions and relegate the  party to his normal remedy to obtain redress in a suit.   In a petition under Article 226, the High Court has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

jurisdiction to try issues both of fact and law.  When the  petition raises complex questions of fact which may, for their  determination, require oral evidence to be taken and on that  account the High Court is of the view that the disputed  statement may not be appropriately tried in a writ petition, the  High Court should ordinarily decline to try the petition.   

       Thus, a High Court is not deprived of its jurisdiction to  entertain a petition under Article 226 merely because in  considering the petitioner’s right, question of fact may fall to  be determined.  Ultimately, the question  is one of discretion   which is to be exercised in conformity with judicial principles.

The High Court entertained the writ petition on the  ground that the present appellant by acting wholly arbitrarily  and illegally had discrimination against the writ petitioner.   These conclusions were based on no material. On the  contrary, the factual scenario as described above goes to show  that the respondent-Society was not entitled to maintain a writ  petition.  Further there was no claim for interest made in the  writ petition but the High Court granted interest.  Looked at  any angle the High Court’s order is clearly unsustainable and  is set aside.  The Writ Petition (Civil) No. 39842 of 2001 filed  before the High Court is dismissed.

The appeal is allowed but in the circumstances without  any order as to costs.