Allahabad High Court
Satya Homes Private Limited And Another vs State Of U.P. And 4 Others on 4 October, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. - 2024:AHC:162496-DB Reserved on: 17.09.2024 Court No. - 29 Case :- WRIT - C No. - 11108 of 2019 (Leading writ petition) Petitioner :- Satya Homes Private Limited And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Nisheeth Yadav,Pankaj Kumar Shukla,Prateek Sinha,Sri C B Yadav(Senior Advocate) Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Mahesh Chandra Chaturvedi (Senior Adv.) with Case :- WRIT - C No. - 41917 of 2018 (Connected writ petition) Petitioner :- Kiran Devi And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- C.B. Yadav (Senior Advocate),Ishir Sripat,Kartikeya Saran,Nisheeth Yadav,Prateek Sinha Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Mahesh Chandra Chaturvedi (Senior Adv.) Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Vikas Budhwar,J.
(Per: Vikas Budhwar,J.)
1. Since common question of facts and law are involved in both the writ petitions, thus, they are being decided by a composite order.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits and the writ petitions be decided on the basis of the documents available on record, thus, with the consent of the parties, writ petitions are being decided at the admission stage.
Facts Writ- C No. - 11108 of 2019 (Leading writ petition )
3. The facts of the leading writ petition are that there happens to be a certain piece of land being khasra Nos. 793 and 795 situated in Village Gulawali, Tehsil and District- Gautam Budh Nagar which was transferred in favour of the writ petitioners by virtue of three registered sale deeds namely, (a)- Khasra No.793 admeasuring 4219 square meter on 20.06.2015, (b)- Khasra No.795 admeasuring 3372, square meter on 14.12.2015 and (c)- Khasra No.787 admeasuring 1980 square meter on 02.07.2015. As per the pleadings set out in para 11, 16 and 17 of the writ petition, the Khasra Nos. 793, 795 and 787 situate in the village in question is notified as a part of Sector 161 of New Okhla Industrial Development Authority (in short 'NOIDA').
4. According to the writ petitioners, after the execution of the registered sale deeds as referred to above, the writ petitioners preferred an application seeking permission on 16.10.2017 before the Chief Executive Officer of NOIDA, second respondent for construction of club building and guest house. The said application was preferred on the premise that the club building and the guest house are the part of the institutional development as per clause 24.5 of the New Okhla Industrial Development Area Building Regulation, 2010 (in short 'Regulation 2010'). On 17.10.2017, an order came to be passed by the Chief Executive Officer, NOIDA, second respondent whereby the request for sanctioning of the map for construction of club building and guest house was turned down. The said order was subject matter of challenge in Writ-C No.14777 of 2018 (Satya Homes Pvt. Ltd. and Another v. State of U.P. and three others) in which on 03.05.2018, the following order was passed:
"Heard Mr. Nisheeth Yadav, learned counsel for the petitioners and Mr. Kaushalendra Nath Singh, learned counsel for respondents 2 and 4.
The principal prayer made in the writ petition reads thus:
"(i) A writ, order or direction in the nature of certiorari quashing the order dated 17.10.2017 issued by the respondent no. 2. (Annexure-11 to this writ petition)."
Counsel appearing for the respondent-Authority, on instructions, submits that the second respondent shall withdraw the order dated 17.10.2017 within a period of one week from today and seeks liberty to this respondent to initiate fresh proceedings and pass appropriate orders. His statement is recorded and accepted. In view thereof, nothing further survives in the writ petition. Petition is disposed of as infructuous with liberty as prayed. All contentions of the parties on merits are kept open."
5. Post passing of the order dated 03.05.2018 in Writ-C No.14777 of 2018 (Satya Homes Pvt. Ltd. and Another v. State of U.P. and three others), the writ petitioners preferred a detailed representation/ application before the Chief Executive Officer, NOIDA, second respondent which has been rejected by the order dated 15.11.2018.
6. The same led to filing of the leading writ petition wherein the following reliefs was sought:
"I. a writ, order or direction, in the nature of certiorari quashing the impugned order dated 15.11.2018 passed by the Authority (Annexure No.14 to this Writ Petition).
II. a writ, order, or direction, in the nature of mandamus, directing the respondent no.2 to reconsider the application for sanctioning of the map to raise construction as in the nature of institutional purposes.
III. any other suitable order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
IV. an award to the cost of the petition to the petitioners."
7. The leading writ petition came to be entertained by this Court on 01.04.2019 while seeking response from the respondents.
8. A counter affidavit has been filed on behalf of the second respondent sworn by Manager (Planning) NOIDA dated 03.11.2019 followed by a supplementary counter affidavit of the same authority dated 29.11.2019 of Tehsildar (NOIDA).
9. Rejoinder affidavit as well as supplementary rejoinder affidavit have been filed by the writ petitioners which are available on record.
Writ- C No. - 41917 of 2018 (Connected writ petition)
10. As regards, the connected writ petition is concerned, the same has been filed by one Smt. Kiran Devi wife of Arvind Kumar Singh and Smt. Mira Kumari wife of Sri Ramesh Kumar wherein it is claimed that one Mehar Chandra son of Sri Fatti was the original tenure holder of khasra No.795 of Khata No. 370 of the Village - Gulawali, Pargana Dankaur, Tehsil Sadar, District Gautam Budh Nagar area of 2.2320 hectare. It is pleaded that since the family of Mehar Chandra was using the land of Khasra No.795 for residential purposes and not for agriculture and further the land was a part of the village Abadi of Village Gulawali, therefore, Mehar Chandra made an application under Section 143 of U.P.Z.A. & L.R. Act, 1950 (in short 'Act, 1950') for declaration of the land as non-agricultural. The said application was registered as Case No. 38 of 2013-14 (Mehar Chandra v. State of U.P. & Others) and the Court of Sub Divisional Magistrate, Sadar, Gautam Budh Nagar after obtaining the report from concerned authority, passed an order on 29.04.2014 declaring the land to be non-agriculture. It is also pleaded that so far as Khata No. 281 of Khasra No. 793, a part of the same is also declared to be non-agriculture by virtue of the declaration under Section 143 of the Act, 1950.
11. Pleadings further reveal that though Mehar Chandra and his family members who are the owners of the respective Khasras and who were residing over the demise land in question, they were confronted with the demolition notices seeking to demolish their constructions at the end of the NOIDA on 28.08.2014.
12. Questioning the same, Writ-C No.65021 of 2014 (Fundan and 4 others v. State of U.P.) was preferred which came to be disposed of on 22.01.2015 while passing the following orders:
"Heard learned counsel for the petitioners and learned counsel for the respondents.
The writ petition has been filed seeking following relief:-
"(i) To issue writ, order or direction in the nature of mandamus commanding the respondents not to take any action and not to disturb the peaceful possession of the petitioners part of the land comprising of Khata No. 281 Khasara No. 793 area 1.2280 hectare and Khata No. 370 Khasara No. 795 area 2.2320 hectare of revenue Village Gulavali, Pargana Dankaur, Tehsil Sadar, District Gautam Budh Nagar."
Time was granted to Sri Shivam Yadav, learned counsel appearing for respondent no. 3 to obtain instructions. Today when the matter has been taken up, Sri Shivam Yadav states that no notification has been issued. He further states that the possession of the land shall not be disturbed and shall be taken over only in accordance with law. He further states that the authorities do not have any intention to disturb the possession of the petitioners over the aforesaid two Khasara plot nos. and possession shall only be taken over in accordance with law.
In view of the aforesaid factual situation we direct that possession of the petitioners over Khasara No. 793 and 795 of Khata No. 281 and 370 respectively shall not be disturbed and shall not be taken over except in accordance with law.
With the aforesaid directions and observations, the writ petition stands disposed of."
13. In para 12 of the connected writ petition, it is further asserted that since Mehar Chandra, the father of the co-tenure holders was quite old and, therefore, for disposing of the land in question, a General Power of Attorney was entered with Dinesh Pawar, son of Amar Singh. The writ petitioner No.1 in order to reside in Gautam Budh Nagar purchased a residential house situated on plot no. 27, having total area plot admeasuring 380 sq yards i.e. 317.72 sq meters comprising of Khasra No.795 in which two rooms, bathroom, toilet, veranda were already constructed, by way of a registered sale deed on 21.03.2015. Insofar as the petitioner No.2 is concerned, her husband post retirement from the Merchant Navy decided to settle down in NOIDA, Gautam Budh Nagar and by virtue of a registered sale deed dated 21.03.2015, he purchased a land bearing an area of 310 square yards i.e. 259.20 square meters, comprising of Khasra No.795 situated in Village Gulawali, Pargana-Dankaur, Tehsil and District Gautam Budh Nagar.
14. The writ petitioners further claim that their name also stood recorded in the revenue records. In para 19 and 20, it has been asserted that like the writ petitioners herein, about 64 families also purchased small pieces of land bearing areas between 176 square meters to 299 square meters situated in Khasra Nos.793 and 795 of village Gulawali. However, when renovation was being done then obstacles were created and no heed was paid to the request made by them for sanctioning the maps. Thus, Civil Misc. Writ Petition No.16026 of 2016 (Mrs. Minaksi and others v. State of U.P.) came to be filed. However, according to the writ petitioners, on 10.08.2017, an order came to be passed by the Chief Executive Officer, NOIDA whereby the request of the writ petitioners for sanctioning of the map has been turned down on the pretext that the Khasra Nos. 793 and 795 are the part of Sector-161 and notified by the NOIDA Authorities and as per the records, they are not the part of the village Abadi, thus, the maps cannot be sanctioned.
15. Assailing the action of the respondents as well as the order dated 10.08.2017, the connected writ petition came to be filed with the following reliefs:
"I. a writ, order or direction, in the nature of certiorari quashing the impugned order dated 10.08.2017 passed by the respondents' Authority (Annexure No.18 to this Writ Petition).
II. a writ, order or direction, in the nature of mandamus, directing the respondents' Authority to allow the petitioner's to raise construction over there purchased plots, situated in Village-Gulawali, Pargana- Dankaur, Tehsil and District-Gautam Budh Nagar in terms of the parameters laid down in Regulation, 2016.
III. any other suitable order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.
IV. an award to the cost of the petition to the petitioners."
16. In the connected writ petition, affidavits have been exchanged between the parties.
Argument of the counsel for the writ petitioners
17. Shri C.B. Yadav, learned Senior Advocate assisted by Sri Nisheeth Yadav, learned counsel for the writ petitioners in the leading writ petition and Shri Rahul Sripat, Senior Advocate assisted by Sri Shri Ishir Sripat, learned counsel for the writ petitioners in connected writ petition have sought to argue that the orders passed by the NOIDA negating the claim for sanctioning of the map is per se illegal besides being in violation of Article 300-A of the Constitution of India and, thus, it is liable to be set aside. Elaborating the said submission, it is being argued that the writ petitioners in the leading writ petition and the connected writ petition have purchased the land through a registered sale deed that too from actual owners who were possessed with the right and the title and in absence of any restriction in transfer of the properties, NOIDA cannot raise any objections regarding construction as though it is the part of Sector 161 of the NOIDA but the only power which is available with the NOIDA is regulatory and there cannot be any bar in not sanctioning map so as to throttle down any attempt of raising constructions which is in accordance with law.
18. Argument is that there is a marked difference between the regulatory power and the power to forbid a particular act and once the writ petitioners became owner by virtue of a registered sale deed then obviously as per there needs, they can raise construction as nobody can be forced to just purchase a land and to keep it vacant without raising any constructions.
19. In nutshell, submission is that though as per the 2010 Regulations framed under Section 19 of the UP Industrial Area Development Act, 1976 (in short 'Act 1976') power vests with the NOIDA with the approval of the State Government to make regulations and according to Regulation 4 & 5, Chapter II, an application for building permit is to be made by a prospective applicant and the same is to be decided as per the regulations but, in case, the writ petitioners are not permitted to raise constructions then the very basic object of framing of the regulations would stand redundant. According to the learned counsels for the writ petitioners, the basic premise on the basis whereof, the claim of the writ petitioners for sanctioning of the map has been negated is faulty and erroneous, particularly, when the writ petitioners are the recorded owners of the land in question and they are using the land for construction of club building and guest house and once according to the NOIDA, the same has been specified in the Master Plan for institutional use then the proposal for constructions of club building and guest house also comes within the definition of institutional use, thus, there was no occasion to turn down the request of the writ petitioners. Further submission is that merely because, there has been a deliberation at the end of the NOIDA for acquiring the land which is owned by the writ petitioners, the same cannot be a ground to resist constructions in view of the fact that acquisition has not taken place till date as no notification under the relevant statutes has been issued. Additionally, it has been submitted that acquisition or resumption of the land as proposed by the NOIDA is dependent upon certain contingencies and the said decision has not yet crystallized, thus, even if the maps are sanctioned and constructions are raised then in future, acquisition proceedings are drawn then the NOIDA can obviously acquire the land or resume the same while paying compensation. It is, thus, prayed that the orders impugned in both the writ petitions be set aside, permission be accorded to the writ petitioners to raise constructions as per the regulations and the writ petitions be allowed in toto.
Argument of the counsel for the NOIDA
20. Countering the submissions of the learned counsel for the writ petitioners in both the writ petitions, Shri M.C. Chaturvedi, Senior Advocate assisted by Sir Kaushalendra Nath Singh, who appears for the respondent-NOIDA Authorities have submitted that the orders impugned in the writ petitions are perfectly valid in accordance with law and needs no interference in the present proceedings. A question regarding maintainability of the writ petition has been raised on the premise that the writ petitioners have an alternative efficacious remedy of preferring appeal under Regulation 14 of the 2010, Regulations, thus, the writ petition be dismissed on the ground of alternative remedy. On merits, It is submitted that in order to raise constructions over the land which is situated in an area which is notified by the NOIDA being within its jurisdiction, permission is required. According to them, there happens to be specific procedure contemplated under the Chapter-II of the Regulation, 2010 wherein an application for building permit is required and as per Regulations 4 & 5 under Chapter-II read with the checklist 1-A (for building on individual plots), checklist-1B (for the buildings other than those on individual residential plots) and checklist-1C (for the layout and subdivision of plots), certain formalities are to be completed at the end of the applicants who seek to raise constructions. Submission is that in the present case, the writ petitioners in leading and the connected writ petition have violated the regulations as they have raised constructions without there being any application for building permit less to say about approval.
21. In nutshell, the submission is that the constructions so raised are totally unauthorized and illegal and in the garb of an application seeking building permit, they seek to regularize the same which is thoroughly impermissible as per the regulations. It has also been argued on behalf of the NOIDA that the Khasra Nos. 793 and 795 comes within the notified area as per the provisions of the Act, 1976 and they are meant for institutional purpose, thus, allowing the writ petitioners to raise constructions individually would tantamount to distort the very scheme, particularly, when the same is to be allotted for the institutional purpose.
22. While inviting attention towards the counter affidavit filed on 03.11.2019 sworn by the Manager Planning, NOIDA on behalf of the second respondent, it is sought to be contended that with respect to Khasra Nos. 793 and 795 which falls in the notified area of NOIDA in Village- Gulawali, the NOIDA has already sent a proposal on 15.10.2012 to Additional District Magistrate, Land Acquisition, Gautam Budh Nagar for acquisition of the above Khasras and the NOIDA has already carved out a plan for Sector-161 in which Khasra Nos.793 and 795 falls. It is also contended that the NOIDA in furtherance of its object for sustained development has by virtue of the sale deed and acquisition acquired a total area of 8.94 acres and for the rest proceedings are already in line. It is also contended that against the order declaring the land of the writ petitioners to be non-agriculture under Section 143 of 1950, Act restoration/ recall application has been filed which is pending consideration.
23. While further inviting attention towards the averments made in the supplementary counter affidavit, it is contended that in the 198th Board's meeting of the NOIDA, an approval has been accorded for purchasing of the land for the purposes of development of the Sector-161. With vehemence, it has been contended that the writ petitioners in leading writ petition have further transferred the plots to different people carving out of small plot and reference is made to Annexure SCA-2 so as to contend that now lands stand transferred to many individuals in small proportions clearly creating a situation whereby the very object of institutional sustained development is being sought to be throttled.
24. Additionally, it has been argued that though for the urban areas, their exist an Act by the name of Uttar Pradesh Urban Planning and Development Act, 1973 for regulation of the constructions and ancillary issues but in the case of the Industrial and Urban Township post acquisition and purchase of land under the 1976, Act, a great amount of development is required inclusive of laying down of roads, water-supply and sewerage etc. Thus, in case, permission is accorded to the writ petitioners to raise constructions according to their whims and fancies that too in fragmentation then the basic object of institutional development would stand redundant. It is, accordingly, prayed that the writ petition be dismissed with cost.
Argument of the learned Standing Counsel for the State-respondents
25. Shri Devesh Vikram, learned Additional Chief Standing Counsel along with Shri Fuzail Ahmad Ansari, learned Standing Counsel have adopted the submissions of Shri M.C. Chaturvedi, Senior Advocate who had appeared for NOIDA and have submitted that they have nothing more to add except the fact that the order impugned in the present proceedings are perfectly valid in accordance with law and no fault whatsoever can be attributed in this regard.
26. Before dwelling into the tenability of the arguments raised by the respective parties, it would be opposite to quote, the relevant provisions of the Act and the Regulations which are germane to the controversy in question.
Statutory Provisions "U.P. Industrial Area Development Act, 1976 Section 2 (d) "industrial development area" means an area declared as such by the State Government by notification.
Section 6. Functions of the Authority.- (1) The object of the Authority shall be to secure the planned development of the industrial development areas.
(2) Without prejudice to the generality of the objects of the Authority, the Authority shall perform the following functions-
(a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purposes of this Act;
(b) to prepare a plan for the development of the industrial development area;
(c) to demarcate and develop sites for industrial, commercial and residential purposes according to the plan;
(d) to provide infra-structure for industrial, commercial and residential purposes;
(e)to provide amenities;
(f) to allocate arid transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes;
(g) to regulate the erection of buildings and setting up of industries; and
(h) to lay down the purpose for which a particular site or plot of land shall be used, namely, for industrial or commercial or residential purpose or any other specified purpose in such area.
Section 8. Power of issue directions in respect of erection of building.
(1) For the purposes of proper planning and development of the industrial development area, the Authority may issue such directions as it may consider necessary, regarding-
(a) architectural features of the elevation or frontage of any building,
(b) the alignment of buildings on, any site.
(c) the restrictions and conditions in regard to open spaces to be maintained in and around buildings and height and character of buildings,
(d) the number of residential buildings that may be erected on any site,
(e)regulation of erection of shops, workshops, warehouses, factories or buildings,
(f) maintenance of height and position of walls, fences, hedges or any other structure or architecture constructions,
(g) maintenance of amenities,
(h) restriction of use of any site for a purpose other than for which it has been allocated;
(i) the means to be provided for proper-
(i) drainage of waste water,
(ii) disposal of industrial waste, and
(iii)disposal of town refuse.
(2) Every transferee shall comply with the directions issued under sub-section (1) and shall as expeditiously as possible erect any building or take such other steps as may be necessary to comply with such directions.
Section-9. Ban on erection of buildings in contravention of regulations.- (1) No person shall erect or occupy any building in the industrial development area in contravention of any building regulation made under sub-section (2).
(2) The Authority may by notification and with the prior approval of the State Government, make regulations to regulate the erection of buildings and such regulations may provide for all or any of the following matters, namely,-
(a) the materials to be used for external and partition walls, roofs, floors and other parts of a building and their position or location or the method of construction;
(b) lay out plan of the building whether industrial, commercial or residential;
(c) the height and slope of the roofs and floors of any building which is intended to be used for residential or cooking purposes;
(d) the ventilation in, or the space to be left about any building or part thereof to secure circulation of air or for the prevention of fire;
(e) the number and height of the storeys of any building;
(f) the means to be provided for the ingress and egress to and from any buildings;
(g) the minimum dimensions of rooms intended for use as living rooms or sleeping rooms and the provision of ventilation;
(h) any other matter in furtherance of the proper regulation of erection, completion and occupation of buildings; and
(i) the certificates necessary and incidental to the submission of plans, amended plans and completion reports.
[ No Panchayat for Industrial Township. [Inserted by U. P. Act No. 4 of 2001, Section 2 (w.e.f. 24-3-2001).] Section 12-A- No Panchayat for industrial township.-Notwithstanding anything contained to the contrary in any Uttar Pradesh Act, where an industrial development area or any part thereof is specified to be an industrial township under the proviso to clause (1) of Article 243-Q of the Constitution, such industrial development area or part thereof, if included in a Panchayat area, shall, with effect from the date of notification made under the said proviso, stand excluded from such Panchayat area and no Panchayat shall be constituted for such industrial development area or part thereof under the United Provinces Panchayat Raj Act, 1947 or the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, as the case may be, and any Panchayat constituted for such industrial development area or part thereof before the date of such notification, shall cease to exist.
Section 16. Powers of entry, etc.- The Chief Executive Officer may authorise any person, to enter into or open any land or building with or without assistance, for the purposes of-
(a) making any inquiry, inspection, measurement or survey or taking levels of such land or building;
(b) examining works under construction or of ascertaining the course of sewers or drains;
(c) ascertaining whether any building is being or has been erected or re-erected without sanction or in contravention of any sanction given under this Act or the rules and regulations made thereunder and to take such measurements and do any such other acts as may be necessary for such purpose;
(d) doing any other thing necessary for the efficient administration of this Act:
Provided that-
(i) no such entry shall be made except between the hours of sunrise and sunset and without giving reasonable notice to the occupier, or if there be no occupier, the owner of the land or building;
(ii) sufficient opportunity shall, in every instance, be given to enable women, if any, to withdraw from such land or building;
(iii) due regard shall always be had, so far as may be compatible with the exigencies of the purpose of which the entry is made, to the social and religious usages of the occupants of the land or building enacted.
Section 17. Overriding effect of the Act.- Upon any area being declared an industrial development area under the provisions of this Act, such area, if included in the master plan or the zonal development plan under the Uttar Pradesh Urban Planning and Development Act, 1973, or any other development plan under any other Uttar Pradesh Act, with effect from the date of such declaration, be deemed to be excluded from any such plan.
Section 18. Power to make rules.- The State Government may, by notification, make rules for carrying out the purposes of this Act.
Section 19. Power to make regulations.- (1) The Authority may, with the previous approval of the State Government, make regulation not inconsistent with the provisions of this Act or the rules made thereunder for the administration of the affairs of the Authority.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulation may provide for all or any of the following matters, namely,-
(a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings, and the number of members necessary to form a quorum thereat;
(b) the powers and duties of the Chief Executive Officer;
(c) the form of register of application for permission to erect a building;
(d) the management of properties of the Authority;
(e) fees to be levied in the discharge of its functions;
(f) such other matters as are to be provided for in regulation.
New Okhla Industrial Development Authority Rural Abadi Site (Management and Regularization for Residential Purposes) Regulations, 2006 ["2. (1) (f) "Rural Abadi Site" means the rural areas used for residential purpose on June 30, 2011 and continues to be so used on the date of commencement of the New Okhla Industrial Development Authority Rural Abadi Site (Management and Regularisation for Residential Purpose) (Third Amendment) Regulations, 2011 or such rural areas as are used for residential purpose as on the date of commencement of these regulations and continues to be used as such on June 30, 2011. These regulations shall also extend to such Gram Sabha land which has been resumed by Revenue Department in favour of the Authority and kept on the disposal of Industrial Development Department and on which any person has made residential accommodation."
3. Survey and land plan of Rural Abadi Site and Demarcation of Peripheral Boundary.-(1) The Authority shall as soon as possible carry out a planning survey and prepare plan along with the sketch map of the Rural Abadi Sites in which the following shall be shown:
(a) The plots available for regularisation for residential purpose and the plot reserved for other purpose under the Village Development Schemes.
(b) Village-wise complete list, maps, location and size of rural abadi sites within the industrial development area, irrespective of the fact whether after declaration as industrial development area, the land has been acquired or process of acquisition initiated or land is not acquired with specific remarks as to in whose possession each site is.
(c) The location of the plots and use of land within Rural Abadi Sites.
(d) The description of the plot allotted or to be allotted and roads, open spaces, by-lanes, recreation, shops, schools and other places of public utility according to the needs of the particular village.
(2) The plan of the Rural Abadi Sites under sub-regulation (1) shall, as early as possible, be submitted to the Authority for approval, which shall either be approved with or without modifications as may be considered proper by the Authority.
(3) The peripheral boundary of related Abadi village will be demarcated before regularisation. The management of the plot that are being regularised shall be within the peripheral boundary.".
4. Application for regularization.- Any person whose land has been acquired by the Authority and that land is to be regularized, may apply in writing to the Chairman of the Committee and subject to the bona fide requirement of such person his application may be considered by the Committee under and in accordance with these regulations.
The New Okhla Industrial Regulations, 2010 2.65 Urbanisable Area' means the area earmarked for any of the following uses in the Development Plan/ Master Plan.
(i) Residential;
(ii) Commercial;
(iii) Industrial;
(iv) Institutional;
(v) Green area
(vi) Transportation, and
(vii) Any other Special uses as specified in the Development Plan/Master Plan/Scheme duly approved by the Authority.
4.0 Building permit.- No person shall erect any building or a boundary wall or fencing without obtaining a prior permit thereof, from the Chief Executive Officer or an Officer authorized by the Chief Executive Officer for this purpose.
5.0 Application for building permit-
(1) Every person who intends to erect a building within the Industrial Development Area shall give application in the Form given at Appendix - 1.
(2) The application for building permit shall be accompanied by documents as mentioned in checklist annexed to Appendix - 1.
(3) Such application shall not be considered until the applicant has paid the fees mentioned in Regulation No. 10.
(4) In case of objections, the fees so paid shall not be refunded to the applicant but the applicant shall be allowed to resubmit the plan without any additional fees after complying with all the objections within a period of sixty days from the date of receipt of the objection order. If plan is submitted after sixty days, fresh plan fee shall be charged.
(5) No application for building permit shall be necessary for the following additions/alterations provided they do not violate any of the provisions regarding general building requirements, structure stability and fire safety requirements specified in National Building Code-
(a) Whitewashing and painting;
(b) Plastering, patch work, flooring.
(c) Renewal of roof at the same height;
(d) Reconstruction of portions of building damaged by any natural calamity to the same extent as previously approved;
(e) Internal additions / alterations within the building envelop certified and supervised by a Technical Person;
(f) Digging or filling of earth;
13.0 Sanction or refusal of building permit-
(1) After filing of the application for building permit duly certified by the Technical Person as per Appendix 4, the applicant can commence the construction in accordance with the requirements of Zoning Regulations of Development Plan/ Master Plan, these Regulations or Planning, Development Directions and terms of lease deed. In case any objections are found during scrutiny of the plans, the same shall be got rectified by the applicant and if any violations are found during or after the construction, the owner shall be required to rectify the same to the satisfaction of the Authority within a period of 30 days from the date such violations are intimated to the owner. In case the owner fails to comply, the Authority shall ensure compliance and the expenditure incurred on doing so shall be recovered from the owner before issue of occupancy certificate.
(2) If within sixty days of the receipt of the application, refusal or sanction is not granted, the application with its annexures shall be deemed to have been allowed and the permit sanctioned, provided such fact is immediately brought to the notice of the Chief Executive Officer in writing by the applicant within twenty days after the expiry of the period of sixty days but nothing herein shall be construed to authorize any person to do anything in contravention of the Master Plan, lease conditions, these Regulations and Planning and Development Directions issued under Section 8 of the Uttar Pradesh Industrial Area Development Act, 1976.
(3) In case of refusal:-
(a) the Authorised Officer shall give reasons and quote the relevant provision of the regulations which the plan contravenes, as far as possible in the first instance itself and ensure that no new objections are raised when they are re- submitted after compliance of earlier objections.
(b) The Authority shall demolish the unauthorised construction at the expense and cost of the owner/lessee/sub-lessee. In case the owner/ lessee/sub-lessee fails to pay the above said cost, the same may be recovered from him as arrear of land revenue.
(4) Once the plans have been scrutinised and objections, if any, have been pointed out, the applicant shall modify the plans to comply with the objections raised and re-submit them. If the objections remain unremoved for a period of sixty days, the permit shall be refused and the plan shall stand rejected and fee submitted shall be forfeited.
(5) When Allottee submits the application for seeking the occupancy certificate without actually completing the building, inspection shall be done within 30days. If during the inspection for issue of completion certificate any building is found incomplete the allottee will be penalised 50 % of occupancy charges or Rs. 5000/- which ever is more and his/her/their application for occupancy shall be rejected. On such rejection of application the allottee will be required to apply afresh along with penalty charges and time extension charges if required. The action against all the concerned Technical person who has prepared the plan will be taken in following steps
(i) First time - Warning to concerned Technical person
(ii) Second time-black listed in Authority for one year.
(ii) Third time refer to Council of Architecture/ IPI/MIC for cancellation of Registration.
14.0 Appeal against refusal or sanction with modification of a building permit -
Any applicant aggrieved by an order of refusal of a building permit or its sanction under these regulations or directions, may appeal to the Chairman of the Authority within sixty days from the date of communication of such order. Such appeal shall be accompanied by a true copy of the order appealed against, and receipt of appeal fee which shall be 50% of the original plan fee.
The decision of the Chairman on such appeal shall be final, conclusive and binding. The chairman shall provide opportunity of hearing to all concern parties with regard to the disputed map.
The appeal may be referred after sixty days of communication of such order if within 30 days after the previous period of sixty days he satisfies the chairman that he was prevented by sufficient causes from not filing of appeal and not thereafter.
Greater NOIDA Industrial Development Rural Abadi Sites (Management and Regularization) Regulations, 2011 Regulation- 2 (1) (i) "Rural Abadi Site" means the rural areas used for residential purpose before June 30, 2011.'
3. Survey and land planning of the Rural Abadi Site.- (1) The authority shall as soon as possible carry out survey with view to planning and preparing plan along with the sketch map of Rural Abadi Sites in which the following shall be shown:
(a) The plots available for regularization for residential purpose and the plot reserved for other purpose under the Village Development Schemes.
(b) Village-wise complete list, maps, location and size or rural abadi site within the Industrial Development area, irrespective of the fact whether after declaration as industrial development area the land has been acquired with specific remarks as to in whose possession each site is.
(c) The location of the plots and use of lands within Rural Abadi Sites.
(d) The description of the plot allotted or to be allotted and roads, open spaces, bye-lanes, recreation, shops, school and other places of public utility according to the needs of the particular village.".
(2) The map of the Rural Abadi Sites under sub-regulation (1) shall, as early as possible, be submitted to the Authority for approval, which shall either be approved with or without modifications, or will be given directions as may be considered proper by the Authority.
4. Constitution of Committee for the Rural Abadi Site, Identification etc.- (1) The Authority shall constitute a Committee to be called the Committee for matters related to, identification, control etc., of rural abadi sites.
["(2) The Committee shall consist of the following members, namely:
(a) The Additional Chief Executive Officer/ Chairman Deputy Chief Executive Officer (b) Additional District Magistrate (L.A.) Member (c) UP Zila Adhikari of concerned Tahsil Member (d) Representative of Senior Superintendent of Member Police of concerned district. (e) Secretary/Administrative Officer/ Member/Convenor Deputy Collector/ Tehsildar. (f) General Manager (Finance) Member (g) General Manager (Planning/Architect) Member (h) General Manager/O.S.D. (Project) Member (i) Senior Manager/Senior Executive/ Member Manager/Assistant-Manager-Law.]
["5. Function of the Committee. The functions of the committee constituted under Regulation 4 shall be-
(a) to identify all rural abadi sites within the industrial development area of Greater Noida.
(b) to recommend the rural abadi sites which may be excluded while submitting proposal for acquisition of land within the industrial development area to Chief Executive Officer.
(c) to recommend the rural abadi sites which may be released from acquisition proceedings if acquisition process has already been initiated to the Chief Executive Officer.
(d) to make recommendation to Chief Executive Officer for such rural abadi land whose possession has been transferred to acquiring body and which is eligible for regularization.
(e) to make suitable recommendations and suggestions for limiting and controlling the further extensions of rural abadi sites after the date of the survey conducted under Regulation 3, including determination of peripheral boundaries etc. but not confined only to this extent.
(f) to make recommendations in the interest of planned development, for reallocation of abadi sites falling outside the peripheral boundaries of rural abadi site to an area within the peripheral boundary.
(g) to make recommendations for settlement of disputed abadi sites and any other matter which may be referred to by the Authority.".] ["6. Committee constituted under Chairmanship of Chief Executive Officer- (1) The Committee constituted under Regulation 4 will submit its recommendation about the rural abadi sites which be released from acquisition to the following Committee constituted under Chairmanship of Chief Executive Officer:
(a) The Chief Executive Officer of the Authority.
(b) The District Magistrate of Gautambuddh Nagar or Member Additional District Magistrate nominated by him
(c) Superintendent Police of Gautambuddh Nagar or Assistant Superintendent Police nominated by him. Member (2) The Authority shall appoint one of the members nominated by it under clause (b) of sub-regulation (1) to be the Secretary of the Committee, who shall maintain the relevant records, prepare and place the agenda before the Committee, prepare the minutes and discharge all such duties as are entrusted to him by the Committee from time to time.
(3) Three members of the Committee shall constitute the quorum but quorum shall include at least one member referred to in clause (c) of sub- regulation (1).
(4) No act or proceeding of the Committee shall be invalid by reason of the existence of any vacancy or a defect in the constitution of the Committee.
(5) The decision of the Committee shall be duly recorded in the minutes and it shall be clearly mentioned therein that the particular case, the regularization of undeveloped plot is not against the interest of development scheme of the Authority and the Committee has obtained that concurrence of the interested person upon individual basis, for which the Committee shall be competent.
(6) The decisions of the Committee shall be transmitted to the Authority which shall consider it in the first meeting thereafter or for reason to be recorded in any subsequent meeting and the Authority may make such modification as it think fit for reasons to be recorded."]"
Analysis
27. We have given thoughtful consideration to the arguments raised by the learned counsel for the parties and perused the record.
28. The facts are not in issue. It is not in dispute that the writ petitioners who are two in number in the leading writ petition purchased land by virtue of the registered sale deed in Khasra Nos. 793 and 795 of village in question. Similarly, so far as the writ petitioners in the connected writ petition they also purchased the land through the registered sale deed in the said Khasras. It is also not in dispute that the Khasra Nos. 793 and 795 are situated in Village- Gulawali which is notified by the NOIDA in terms of the provisions of the Act, 1976. The bone of contention between the parties is as to whether the request sought to be made by the writ petitioners for sanctioning of the map can be turned down on the considerations which weighed the NOIDA in the orders impugned. A survey of the statutory provisions shows that the basic object of engrafting the 1976, Act was to provide for constitution of the authority for the development of certain areas into industrial and urban townships and the matter connected therewith. Section 2-(d) of the 1976 Act defines industrial development area as an area declared as such by the State Government by notification. Section 3 provides for constitution of the NOIDA and the Section 6 further provides for the function of the authority. What is relevant, is sub-section 2-(g) of Section 6 of 1976 Act which amongst other gives power to the NOIDA to regulate the erection of building and setting up of industries. Section 8, further enjoins the NOIDA the power to issue directions in respect of erection of the building whereas Section 9 authorizes the NOIDA to put up ban on erection of buildings in contravention of regulations. Section 12-A starts with non obstante clause and takes away the powers of panchayat in respect of industrial area which may fall within territorial area of panchayat if notified by the State Government. Likewise, Section 17 gives an overriding effect to the provisions of the 1976 Act, Section 18 provides for power to make rules and Section 19 is with respect of power to make regulations. As regards, Regulations, 2006 are concerned, they have been framed in exercise of the powers conferred under sub-section (1) read with clause (d) of sub-section (2) of 1976, Act with respect to proper management of land within the rural abadi site vested within in the authority and Regulation 2 (1) (f) defines rural abadi site, Regulation 4 provides for application for regularization, Regulation 5 of constitution of committee, Regulation 5A, constitution of committee for identification, etc. Regulation 6, functions of the committee, Regulation 10 talks about restriction and Regulation 21 exercise of powers. Likewise, Regulation 2010 provides for layout of the building permit and occupancy and 2.65 defines urbanisable area, Chapter-II, Regulation 4 provides for building permit and Regulation 5 applies for building permit. Checklist has been provided being checklist-1A for building on individual residential plots and checklist-1B for buildings others than those on individual residential plots, meaning thereby that for filing an application for building permit due compliance of the requirements in the checklist is to be made which is a condition precedent. Regulation 13 provides for sanction or refusal of the building permit and Regulation 14 appeals against refusal or sanction with modification of a building permit. Checklist-1C is also relevant which is deals with layout or subdivision of plots. Likewise, Regulation 2011 also contains similar provisions with slight modification as in the case of Regulation 2010.
29. As regards, the objection raised by the NOIDA regarding maintainability of the writ petition on the ground of existence of an alternative efficacious remedy while preferring an appeal under Regulation 14 of 2010, Regulations, there is no quarrel to the said proposition, however, we find that earlier an order impugned came to be passed which was subject matter of challenge in the earlier spell of litigation and the NOIDA itself withdrew the same and thereafter now the order impugned has been passed and questioning the same the writ petition is pending 2018-19 and responses have been filed by the NOIDA disclosing their stand, thus, it would be futile to dismiss the writ petition on the ground of alternative remedy.
30. Bearing in mind, the aforesaid statutory provisions, the controversy in question is to be addressed. The first and foremost question which arises for consideration before us is whether it is open for the NOIDA to pass a blanket order forbidding the writ petitioners to raise constructions while not sanctioning map as requested by them. Once it is not disputed that the Khasra Nos.793 and 795 situated in Village-Gulawali stands notified and are part of sector 161 of NOIDA then obviously the power to regulate stands conferred with the NOIDA. The NOIDA can resort to appropriate regulatory measures which may be necessary from time to time in order to give effect to its statutory scheme and object.
31. On a pointed query being raised to Shri M.C. Chaturvedi assisted by Shri Kaushalendra Nath Singh who appears for the NOIDA whether there is any restriction or a bar backed by a statutory provision relating to transfer of the land by anyone to the other, Shri M.C. Chaturvedi assisted by Shri Kaushalendra Nath Singh could not point out any provision to the said fact.
32. Keeping in mind, the aforesaid factual position as portrayed before us, we have no option but to assume that the parties are free to transfer the land which belongs to them and they are the owners. Now a question arises whether in the said factual backdrop, there can be any resistance on the part of NOIDA in not processing the applications for building permit. The stand of the NOIDA as per the orders impugned in the present writ petition and the counter affidavit is that Khasra Nos. 793 and 795 are situated in Village-Gulawali are part of Sector-161 and has been earmarked for industrial use and purpose. It has also come on record that on 15.10.2012, the NOIDA Authorities have sent a proposal to Additional District Magistrate, Land Acquisition, Gautam Budh Nagar for acquisition of the part of the land which is owned by the private individuals. A Board's meeting is also stated to have been convened, approving for purchase of the land for the purposes of the development of the said sector and advertisement to the said effect was also published in the widely circulated newspapers. Pleadings reveal that till date, the land possessed by the writ petitioners have not been either acquired or resumed. However, the objections of the NOIDA as set out in the orders impugned before us and in the counter affidavits filed by them is that illegal constructions has been sought to be raised by the writ petitioners and further the land in question being the part of Araji Nos. 793 and 795 so owned by the writ petitioners has been sold in tits and bits i.e. fragmentation.
33. Supplementary counter affidavit also appends a chart showing the transfer of the lands by the writ petitioners to others in fragmentation. Attention has also been drawn towards the sale deeds appended in the leading writ petition whereby only the land was being sought to be transferred by the erstwhile owner in favour of the writ petitioners in the leading writ petition which shows that only land had been purchased and constructions were erected without any authorization. The writ petitioners on the other hand have come up with the stand that they possess declaratory orders under Section 143 of the 1950, Act declaring the land to be non-agricultural and the said order is still existing though, according to the NOIDA restoration/ recall application has been filed, thus, it is was always open for them to raise constructions and in the present case in hand, according to them, whatever constructions earlier existed, they are still standing and their request for grant of building permit to raise further constructions have been turned down. They further contend that they are resorting to commercial activities and not residential.
34. Learned counsel for the writ petitioners have sought to rely upon the judgment of a coordinate Bench in Writ-C No. 43275 of 2015 (Ajeet Singh Chauhan v. State of U.P. and 3 others) along with connected Writ-C No.43195 of 2015 (M/S Bright Infracon Pvt, Ltd. and Another v. State of U.P. and Another) decided on 16.02.2018 so as to contend that NOIDA has no right to resist the sanctioning of the map.
35. The Learned Senior Counsel for the NOIDA has also relied upon a judgment of the coordinate Bench in Paradise Development v. Chief Town and Country Planed along with connected writ petitions in Misc. Bench No.5617 of 1990 decided on 05.09.2017 reported in 2017 SCC Online AII 2744 so as to contend that mere obtaining of a declaration under Section 143 of 1950 Act would not be bind the NOIDA Authorities.
36. In the opinion of the Court, once the Khasra Nos.793 and 795 situated in Village-Gulawali stands notified by the NOIDA and is a part of Sector-161 then obviously NOIDA is possessed with the power to regulate the constructions. The power vested with the NOIDA to regulate cannot be transformed into the power to restrict or restrain constructions while not sanctioning map. The maps obviously are to be sanctioned until and unless the same is not as per the Acts and Regulations. Here in the present case, the crucial question is whether in the wake of the statutory provisions, the impugned orders could have been passed.
37. Interestingly, there is no restriction on the transfer of the land which is owned by the tenure holder. Once the position being so which is owned a right stands accrued to the land owners to ask for sanctioning of map. The said right is not an unfettered right but it is subject to various factors inclusive of compliance of the Rules and the Regulations on the said subject. Once the NOIDA possesses the power to sanction the map then the said power cannot be exercised illegally and denial is to be based upon adequate reasons backed by the statute in consoance with the Article 14 of the Constitution of India. One of the reasons for not according building permit was that such type of permit so sought by the land owners for raising constructions cannot be granted as there is no policy available with the NOIDA in sanctioning the map, when the land in question is neither allotted nor acquired. Certainly, said ground taken by the NOIDA in denying the building permit is inconceivable and not as per the statutes. The other ground that since acquisition proceedings are underway as resolution has been passed for acquisition or purchase of the land owned by the writ petitioners, thus, the building permit cannot be accorded also does not test the legal touchstone as acquisition or resumption is a matter which is to happen in future and which will take a long time and even if it happens in future, the present cannot be sacrificed, particularly, when the question of ownership is not disputed and the writ petitioners hold a valid title till the passing of the orders impugned in the present writ petitions.
38. Moreover, the other ground taken in the order impugned that in case maps are sanctioned then their whole scheme for institutional purpose/ development will stand distorted cannot be countenanced by us, particularly, when till date, no acquisition has been made. As a matter of fact, in case, permission is accorded and constructions are raised and thereafter lands are acquired as per the relevant statutes then obviously it would not be in any manner whatsoever detrimental to the interest of the NOIDA as in that event, the NOIDA would be paying compensation of the land and the constructions made thereon. So far as the allegations of raising illegal constructions by the writ petitioners is concerned though it is noticed in the order impugned and as well as allegations to the said fact are in the counter affidavit filed by the NOIDA but the extent of the said illegal constructions is not indicated or disclosed. We further find that there is no report of the NOIDA appended to the counter affidavit so as to suggest as to what type of illegal constructions has been raised by the writ petitioners. In absence of any document available on record we are not in a position to delve into the said issue.
39. The counter affidavit filed by the NOIDA alleges that the lands which are owned by the writ petitioners have been further transferred by the writ petitioners in fragmentation to others which is also one of the ground for negating the request of the writ petitioners for grant of building permit but, the Court finds from the orders impugned in the writ petition that the said ground is not available. We further find that the Regulations, 2010 also provides for filing of the application for according permission for layout and sub-division of plots as per checklist-1C, it might be a relevant consideration for granting or denying the building permit but the said facts have also not been adverted in the orders impugned.
40. The Hon'ble Apex Court in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 has observed as under:
"The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise."
41. Further in Union of India and another v. GTC Industries Ltd., Bombay, (2003) 5 SCC 106 it was held as under:
"It is well settled that a quasi-judicial order has to be judged on the basis of reasoning contained therein and not on the basis of pleas put forward by the person seeking to sustain the order in its counter-affidavit or oral arguments before the court."
42. Since the order impugned does not advert to said aspect, thus, this Court is not in a position to go into the said issue at this stage.
43. So far as the reliance and reference so placed by the writ petitioners in the case of Ajeet Singh Chauhan (supra) is concerned, the same is of no aid to the writ petitioners, particularly, when in the said case, the land in question over which the constructions were raised was not notified by the NOIDA and did not come within the urbanisable area and were under the concerned village panchayat and taking into the said factual aspect the coordinate bench came to the conclusion that the NOIDA had no authority to issue demolition notice. However, in the present case, the Village-Gulawali wherein the Khasra Nos. 793 and 795 are situated has been notified by the NOIDA and it is the part of the Sector-161 which has not been disputed by the writ petitioners, thus, it can be safely said that the NOIDA is the regulatory authority.
44. As regards, the judgment in the case of Paradise Development (supra) is concerned, a Division Bench of this Court while addressing one of the issues relatable to grant of declaration under Section 143 of the 1950, Act, declaring the land to be non-agricultural which was within the territorial jurisdiction of the NOIDA came to the conclusion that the declaration under Section 143 of the 1950, Act by the prescribed authority would not bind NOIDA and the Regulations would prevail and constructions raised would be after the approval of the NOIDA after sanctioning the building permit. The said judgment squarely applies in the present facts, particularly, when the land stands notified to NOIDA.
45. Since in the present case, we find that the order impugned in both the writ petitions have not adverted to the core and fundamental issues which are being sought to be argued by the respective parties and noticed in the judgment, thus, in the opinion of the Court, the orders cannot be sustained and they are liable to be set aside while remitting the back to the matter to concerned authorities to pass a fresh order strictly in accordance with law after revisiting the entire issues.
46. Accordingly, the writ petition is being decided in the following terms:
(a). Order dated 15.11.2018 impugned in the leading writ petition and order dated 10.08.2017 impugned in the connected petition passed by the Chief Executive Officer, NOIDA are set aside.
(b). The matter stands remitted back to the Chief Executive Officer, NOIDA to pass a fresh orders in accordance with law.
(c). The writ petitioners shall appear before the Chief Executive Officer, NOIDA on 13.11.2024 along with an appropriate application accompanied with complete documents which they seek to rely upon to substantiate their claim.
(d). The Chief Executive Officer, NOIDA shall get a spot inspection done by a team constituted by it while fixing a specific date in the 4th week of November, 2024.
(e). The spot inspection shall be done in the presence of the writ petitioners and the affected parties.
(f). A copy of the inspection report shall be served upon the writ petitioners/ affected parties by hand, by speed post/ e-mail by 14.11.2024, granting them a suitable time to submit their objections within further 10 days, say 26.11.2024.
(g). On the receipt of the objections, a date shall be fixed for hearing in the 2nd week of December, 2024.
(h). Hearing be done and the orders be passed by within a period of two months thereafter.
(i). The orders to be passed by C.E.O. NOIDA should be reasoned and speaking dealing with each and every contentions raised by the parties.
47. With the aforesaid observations, the writ petitions are partly allowed.
Order Date :- 04.10.2024
A. Prajapati
(Vikas Budhwar, J.) (Mahesh Chandra Tripathi, J.)