Ganesh Prasad vs L.D.A. Lucknow & Others

Hon'ble Virendra Kumar Dixit,J.

[Delivered by Hon'ble Devi Prasad Singh, J]

1.The controversy involved in the present writ petition, is an instance revealing the blatant abuse of power by the State Government and the Development Authorities (in the present case, the Lucknow Development Authority, Lucknow in short the LDA), depriving the petitioners of plots which were lawfully allotted to them through lottery system and that too, when the entire cost of the plots was deposited by the petitioners in terms of the schedule prescribed by the LDA. In spite of the fact that the petitioners deposited cost of the plots as far back as in the year 1984, they failed to enjoy the sweet dreams of having their own house in the city of Lucknow in view of the multiplicity of litigation in the hands of red tapism and abuse of power for extraneous reasons and consideration by the LDA and the State Government. The Writ Petition No.281 (M/B) of 1997 is taken up as leading writ petition for the purpose of present controversy.

2.The petitioner No.1, 2 and 3 are the allottees of Plot No.6-E, 2-3 and 130-E in Aliganj Housing Scheme, Lucknow (in short the Scheme). They have approached this Court under Article 226 of the Constitution of India with the grievance that though, the entire cost of plot was deposited by the petitioners in the year 1984, 1987 and 1984 respectively but neither sale-deed has been executed nor the possession has been delivered. The facts giving rise to the present controversy are discussed hereinbelow:

FACTS

3.Khasra Plot No.71 and 72 of village Tatarpur and some other plots of village Shekhapur were acquired by the State Government vide Notification dated 17.3.1962 under Section 357 of U.P. Nagar Mahapalika Adhiniyam, followed by Notification dated 26.4.1969 under Section 363 (1) of U.P. Nagar Mahapalika Adhiniyam. The possession of the land acquired was taken over and delivered to the Lucknow Development Authority (in short LDA) by the Special Land Acquisition Officer, between 15.9.1978 to 4.5.1981 except Khasra Plot No.71 and 72 of village Tatarpur and Plot No.294 of village Shekhapur. The Award was also made by the Land Acquisition Officer with regard to other plots of village Shekhapur, on 31.12.1979. So far as the Plot No.71 and 72 of village Tatarpur is concerned, the Award was made by the Land Acquisition Officer on 31.12.1979. Thus, the acquisition process was completed by 31.12.1979.

4.In spite of Award dated 31.12.1979, the original tenure holders of the land executed sale-deed, transferring the land in favour of respondent Society on 15.1.1981, though acquisition process completed earlier to it.

5.In the year 1984, the respondent No.1 i.e., LDA, had invited applications through advertisement for sale of plots under the Scheme. The plot No.6-E, 2-E and 130-E was allotted to the petitioners by the LDA. Admittedly, entire cost of the plots was deposited by the petitioners in prescribed time with the LDA. The cost was deposited in pursuance of the allotment letter dated 23.6.1984, the copies of which have been filed as Annexure No.1, 2 and 3 to the writ petition. The receipts with regard to deposition of cost of plots, have been filed as Annexure No.4, 5 and 6 to the writ petition.

6.In the meantime, it appears that on pursuance of respondent society land in question and some other plots were released by the State Government by an order dated 15.6.1984 but never notified.

7.In spite of the fact that the petitioners have deposited entire cost of the plots, they were neither given possession nor LDA has executed the sale-deed. Repeated representations submitted by the petitioners remained unattended, the last one of which is dated 11.6.1996 a copy of which, has been filed as Annexure No.7 to the writ petition. On account of inaction on the part of the respondent LDA with regard to delivery of possession of the plots and execution of sale-deed, the petitioners have approached this Court installing their claim with regard to plot No.6-E, 2-E and 13-E respectively which were allotted to them by the allotment letters filed as Annexure No.1, 2 and 3 to the writ petition.

8.While filing the counter affidavit the LDA has stated that the release of land by the Government, vide order dated 15.6.1984 was in violation of Section 48 (1) of the Land Acquisition Act because of the fact that the possession of the land was already taken over by the Special Land Acquisition Officer and Award in respect of the same was made under Section 11 of the Act. The LDA wrote letter to the State Government raising objection with regard to Government order dated 5.6.1984.The Government had considered the objection raised by the LDA and by subsequent decision the release of land in favour of respondent society was cancelled, vide Government order dated 2.5.1986 a copy of which has been filed as CA-2 to the counter affidavit filed by the LDA.

9.According to para-10 of the counter affidavit filed by the LDA, the State Government was also informed that layout plan submitted by the Society, cannot be sanctioned since the area covered therein, falls within the domain of the Scheme. The LDA has also informed the respondent Society pointing out the illegality in the layout plan. A copy of the letter dated 23.11.1976 and 4.12.1980 sent by the LDA and the Society has been filed as Annexure No.CA-3 and CA-4 to the counter affidavit.

10.The State Government issued an order dated 26.11.1992 providing therein that the dispute between the registered cooperative housing societies and the development authorities of Uttar Pradesh, should be resolved by way of settlement/compromise at Allahabad, Lucknow on reasonable terms and conditions. It appears that the State Government took the decision in view of litigation pending in the High Court with regard to a cooperative housing society namely, Amrapali Sahkari Avas Samiti Limited.

11.The LDA under the garb of Government order dated 26.11.1992, convened a meeting on 27.10.1994 presided by the Secretary of LDA,and the office bearers of the society to resolve the dispute and took a decision that LDA shall adjust its registered sale-deed holders and members of the society holding registered sale-deed by adjusting them and permitting them to retain the possession of respective plots with regard to which the society has executed registered sale-deed after depositing the entire development cost of plots. The decision taken by the Secretary along with the society was alleged to be approved by the Vice-Chairman of LDA at latter stage.

However, there is nothing on record which may reveal that land/plots with regard to a decision so taken on 27.10.1994, the acquisition was denotified or the matter was approved by the Board of LDA. In the meantime, the respondent society with intention to avail the benefit of Government order dated 25.6.1984, filed Writ Petition No.4257 (M/B) of 1984 in which interim order was passed on 23.8.1984 followed by 25.8.1988 by a Division Bench of this Court directing to maintain status quo.

12.During the pendency of aforesaid writ petition, the LDA and the society through its President Sri B.S. Dahiya, entered into agreement on 28.10.1996. The agreement was entered between the LDA and society through its President Sri B.S. Dahiya under the garb of alleged settlement dated 27.10.1994 (supra). Under the said agreement dated 28.10.1996, the society was offered 24 plots of different size in Sector-E of Aliganj, Housing Scheme and 8 plots in Sector-J, Sitapur Road Housing Scheme, total area of land measuring 5684.50 sq. metres subject to payment of development cost of the year 1983-84 along with interest at the rate of 16% whereby an amount of Rs.22,43,770/- that too, in four quarterly instalments. This agreement includes petitioners plot in question.

It shall be relevant to mention here that the LDA entered into agreement without placing the matter to the Board and also without taking note of the Government order dated 2.5.1986 by which, earlier order dated 15.6.1981 was cancelled by the State Government with regard to release of land in favour of the society that too, on the objections raised by the LDA itself and on finding the substantial illegality in the decision taken by the State Government.

13.After the aforesaid agreement on the request made by the society, the Writ Petition No.4257 (M/B) of 1984 was dismissed as withdrawn on 13.1.1997. In the Writ Petition No.4257 (M/B) of 1984 which was withdrawn by the society, the notification with regard to acquisition of land as well as the Government order dated 2.5.1986 was impugned.

14.After agreement, the LDA offered the petitioners to accept other plots but the petitioner No.1 has not acceded to such request. On the other hand, the petitioner No.2 and 3 were allotted another plot. C-3/1, in Vikrant Khand, Gomti Nagar in lieu of Plot No.C-2 situate in Sector-E, Aliganj Housing Scheme, Lucknow and executed the sale-deed in favour of the petitioner No.2 Ramesh Chandra Agarwal on 18.3.2003. Plot No.390, Vikrant Khand, Gomti Nagar, Lucknow was allotted to the petitioner No.3 in lieu of Plot No.130-E, Aliganj Housing Scheme, Lucknow.

15.It has been vehemently submitted by Sri J.K. Sinha, later on Sri H.S. Jain, learned counsels for the petitioner that Plot No.6-E, measuring 1800 sq. ft., was allotted to the petitioner on 30.5.1984 in the Scheme through lottery held on 30.5.1984 and he was required to deposit Rs.27,000/- which he deposited on 31.8.1984 in the Account of the LDA, situated in United Commercial Bank, Hazratganj, Lucknow. The petitioner also deposited an amount of Rs.36,000/- as full and final payment of cost of plot in question.

On the other hand, area of the plot of which Society has executed sale-deed in favour of intervener is 3200 sq. ft.

16.While assailing the impugned agreement, it has been submitted by the petitioner's counsel Sri J.K. Sinha that Sri B.S. Dahiya was no more Administrator of the Society after 31.10.1995 as his term came to end in view of the provisions contained under Section 29 of U.P. Cooperative Societies Act, 1965. He also stated that while filing counter affidavit in Writ Petition No.1708 (M/B) of 1996, the respondent No.2 through its Secretary stated that the Society filed Writ Petition No.4257 (M/B) of 1984 challenging the acquisition of land which was dismissed as withdrawn.

17.It is stated by the respondent Society while filing counter affidavit that the compromise dated 28.10.1996, entered into by Sri B.S. Dahiya, the alleged administrator with the Secretary, LDA, is illegal and a fraudulent act as the term of Sri B.S. Dahiya as Administrator of the society expired on 31.10.1995, hence he became functus officio and acted without any authority while entering into the agreement on 28.10.1996. Relevant portion of the para of counter affidavit filed in Writ Petition No.1708 (M/B) of 1996 is reproduced as under:

"8. That it is also pertinent to mention that despite the aforesaid affidavits deponent has come to know on 22.10.96 that L.D.A. Entered into a forged and illegal compromise in collusion with Sri B.S. Dahiya alleged to be Administrator of the society in respect of land in question. As a matter of fact Sri B.S. Dahiya is no more administrator of the society after 31st December 1995 as per provisions of Section 29 of the U.P. Co-operative Societies Act nor he is entitled to enter into agreement or compromise in respect of the land in question. As a matter of fact he has no locus standi for the same therefore, any agreement signed by Sri Dahiya will be illegal null and void. The deponent has also come to know of the alleged agreement on 28.10.1996. There are alleged signature of the deponent and he is also a party in the agreement But as a matter of fact it appears that the signatures obtained by Sri Ram Raj Singh forcibly with the help of miscreants on some papers have been utilised by him in collusion with Secretary of L.D.A. And Mr. Dahiya made forged signature. But in any manner the said affidavit dt. 28.10.96 deserves to be treated illegal null and void in the interest of justice."

18.Accordingly, submission of Sri J.K. Sinha and Sri H.S. Jain Advocates, is that virtually Sri B.S. Dahiya and LDA committed fraud to divest the petitioner from Plot No.6-E in the Aliganj Housing Scheme.

It is also stated by the petitioner's counsel that while filing response in Writ Petition No.1708 (M/B) of 1996 the respondent society had stated that it has got no objection in case the plot in question i.e., Plot No.6-E is released and the possession is delivered to the petitioner.

19.Smt. Satyawanti Devi has been permitted to become intervener in the present writ petition who has purchased the plot in question from the Society. However, while filing affidavit dated 25.1.2002 in Writ Petition No.5208 (M/B) of 2001 through its Secretary, Sri S.C. Mishra, stated that the execution of sale-deed in favour of Smt. Satyavati Devi the intervener Smt. Alka Singh by the President Sri Ram Singh, is nullity in law since the Society had not passed any resolution nor had given authority to Sri Ram Singh to execute the sale-deed in favour of the intervener. Relevant portion of para 4 (v), 4 (vi), 7, and 9 of the counter affidavit filed by the Society in the Writ Petition No.5208 (M/B) of 2001 is reproduced as under:

"4 (v) That in the meantime the then President of the society Sri Ram Singh has executed sale deed in favour of the petitioners. It is very important to mention here that neither any resolution has been passed by the committee of management nor any authority has been given to the President Sri Ram Singh to execute instant sale deeds. It is further stated that no amount has come in account of the society.

4 (vi) That according to U.P. Cooperative Societies Act-1965 it is crystal clear that the Secretary of the society is the competent authority to execute sale deed according to resolution/decisions taken by the Committee of Management.

7. That in reply to the contents of para-5 of the writ petition it is submitted that the plot no.-C-2, C-3, C-41, C-42, B-16, C-6, and C-25 fall in Khasra No.305, 306 and 307 in Village-Shekhapur, District-Lucknow has never been owned by the society and from the perusal of the letter No.-276/A.P.-9/2000 dated-30-10-2000 it is crystal clear that the possession of the aforesaid plots have not been delivered to any one. The true Photostat copy of the letter dated-30-10-2000 is being annexed herewith as ANNEXURE NO.-CA-2 to the Counter Affidavit.

9. That in reply to the contents of para-7 of the writ petition it is submitted that the society has never owned the land of Khasra Nos.-305, 306 and 307 in Village-Shekhapur, District-Lucknow. It is further submitted that the then President Sri Ram Singh has never been authorised by the Committee of Management to execute sale deed and according to Co-operative Society Act the Secretary is the Competent authority to universe sale deed. It is crystal clear that from the perusal of intimation letter dated 8.10.1984 regarding the meeting dated 30.9.1984. That the then President has executed sale deed in favour of the petitioners and have fabricated forged receipt of the money. It is further stated that on 1.5.1986 the Secretary of the Lucknow Development Authority has informed regarding execution of bogus sale deed through publication in Swatantra Bharat. Thereafter on 6.5.1986 the administrator of the Society has also informed regarding the execution of bogus sale deed through publication in Swatantra Bharat Dainik. It is also important to mention here that no resolution has been passed regarding the execution of sale deeds/ allotments at that time and no amount has come in account of the society.

The Administrator of the Society Sri B.S. Dahiya has also written a letter to the Deputy Housing Commissioner which has also filed in writ petition No.-791 (M/B) of 1997 mentioning in that the then President have executed sale deed in favour of the petitioners on the basis of forged receipt. It is also mention in that the land of those Khasr as has never been owned by the society and no authority has been given to the then President Ram Singh. The true Photostat copies of letter dated-8-10-1984 and publication dated 1-5-1085, 6-5-1986 and letter dated-30-6-1996 written by Administrator are being annexed herewith as ANNEXURE NOS.-CA-3, 4, 5 & 6 respectively to this Counter Affidavit."

20.It has been stated by the petitioner's counsel that the petitioner who was lawful allottee, was not made party in Writ Petition No.1708 (M/B) of 1996 filed by the intervener. It is also stated that the alleged agreement between the LDA and the Society is in contravention of Section 52 of Transfer of Property Act, 1882. Since the right of the society and subsequent purchaser is based on fraudulent act, the respondents have got no right to claim right and title over the plot in question i.e., Plot No.6-E which belongs to the petitioner.

21.During the pendency of the writ petition, the Society has filed another counter affidavit dated 4.9.2009 which according to petitioner's counsel, is in collusion with the intervener and also stands taken, have been changed.

22.Subject to aforesaid backdrop, it has been submitted by Sri J.K. Sinha, learned counsel for the petitioner that in any case, neither the society nor intervener or even the LDA has got right to deprive the petitioner from plot No.6-E situated in Aliganj Housing Scheme Lucknow. It has also been stated that agreement speaks for Plot No.6 and not for 6-E and things were managed in such a way so that either the petitioner No.1 must leave himself like others or may be compelled to accept other plot offered by the LDA. It has been submitted that the location of the plot No.6-E is quite good and respondents may not be permitted to divest the petitioner from his plot in pursuance of the fraudulent act or unlawful means because of passage of time. The petitioner's counsel vehemently argued that he is entitled for exemplary cost and compensation on account of high handedness on the part of the respondents.

23.It is further submitted that the entire action of the LDA and the authority of the State Government, amount to commission of fraud in collusion with society namely, Firoz Gandhi Cooperative Housing Society Limited, Lucknow. It is also submitted that since the transfer of land to the society itself is bad in law and suffers from jurisdictional error and by incompetent persons in violation of statutory provisions, the transfer of land to the intervener, shall be void and in any case, the intervener has got no right to claim benefit since the society itself was having no right or title to transfer the land to the intervener by the alleged sale-deed dated 20.8.1984. In case the society felt that it was in valid possession of land and it was having right to transfer the land in favour of the intervener, then there was no need to enter into agreement with LDA on 20.10.1996. However, the settlement of dispute was itself bad in law and substantially illegal hence there shall not accrue any right or title in favour of the intervener or the society itself.

24.Petitioner's counsel has placed reliance on the cases reported in 1970 (2) SCC 149: Lt. Governor of Himanchal Pradesh and another. Vs. Sri Avinash Sharma; (1993) 2 SCC 84: Rajasthan Housing Board and others. Vs. Shri Kishan and others; (1993) 4 SCC 369: Satendra Prasad Jain and others. Vs. State of U.P. and others; (1996) 3 SCC 1: Pratap and another. Vs. State of Rajasthan and others; (1996) 3 SCC 124: U.P. Jal Nigam, Lucknow through its Chairman and another. Vs. Kalra Properties (P) Ltd., Lucknow and others; (1996) 6 SCC 424: Allahabad Development Authority. Vs. Nasiruzzaman and others; (1996) 7 SCC 269: State of T.N. And another. Vs. Mahalakshmi Ammal and others; (1996) 7 SCC 426: Sneh Prabha (Smt) and others. Vs. State of U.P. and another; (2005) 1 SCC 558: Government of A.P. And another. Vs. Syed Akbar; (2005) 12 SCC 508: Bangalore Development Authority and others. Vs. R. Hanumaiah and others; 2008 AIR SCW 5807: Meera Sahni. Vs. Lt. Governor of Delhi & others; 2009 AIR SCW 6953: Shanti Sports Club & another. Vs. Union of India and others; (2009) 10 SCC 501: Sita Ram Bhandar Society, New Delhi. Vs. Lieutenant Governor Government of NCT, Delhi and others; (2009) 10 SCC 689: Tima Ram and others. Vs. State of Uttar Pradesh and others; and (2009) 11 SCC 480: Rajinder Singh Bhatti and others. Vs. State of Haryana and others.

25.On the other hand, while defending the right of Society and consequential right of intervener, Sri Prashant Chandra learned Senior Counsel submitted that in view of agreement dated 28.10.1996 entered into between the Society and the LDA and consequential sale-deed, the right of intervener is absolute and now, it is not open for cancellation by process of judicial review. It has further been submitted by the learned senior counsel that agreement between the Society and the LDA, is lawful and suffers from no infirmity. According to learned Senior Counsel Sri Prashant Chandra, Sri B.S. Dahiya was the President of the Society and fully authorised to enter into agreement.

26.Learned Senior Counsel relied upon the amendment done in Section 29 of U.P. Cooperative Societies Act, 1965 by U.P. Act No.1 of 1997 which provides that President of the Society working on 31.12.1995 shall continue for further period of two years.

However, learned counsel for the petitioner submitted that the tenure of Sri B.S. Dahiya was admittedly upto 31.10.1995 and after expiry of term it could not have been extended unless statutes provide so. The amending Act has been given effect from 31.12.1995. There is no statutory provisions which may permit for continuance of Office by Sri B.S. Dahiya after 31.10.1995. There is no evidence or material on record which may entitle Sri B.S. Dahiya to continue as President between 21.10.1995 to 31.12.1995 or thereafter.

27.Sri Prashant Chandra, learned Senior Counsel vehemently argued that the compromise entered into between the Society and the LDA was lawful, just and proper that too, in pursuance of the Government order. He further submits that maximum benefit which may be made available to the petitioner, is to claim a plot from the LDA for which the LDA is still ready. He submits that the LDA is ready to provide alternative site to one of the petitioners in the manner it has provided to two others. It shall not be proper to proceed with the matter on merit.

28.With regard to argument to offer alternative plot to one of the petitioners, the petitioners' counsel vehemently opposed it for two reasons: namely, the location of plot is at prime place of the city and secondly, the petitioners are fighting for justice since as far as from 1984 and they have faith in administration of justice and expect that wrong doers shall suitably dealt with by the Court so that others may also get a lesson not to deal the citizen in a shabby manner.

29.However, Sri Prashant Chandra learned Senior Counsel would vehemently argue that since the LDA had executed sale-deed, now it is not open for the Court to set aside the allotment of the intervener done by the Society through registered sale-deed. For any grievance the petitioners may approach the Civil Court.

30.On behalf of the intervener Sri Prashant Chandra, learned Senior Counsel had relied upon the cases reported in (2004) 8 SCC 321: Defence Enclave Residents Society. Vs. State of U.P. and others; (2004) 6 SCC 765: Hira Tikkoo. Vs. Union Territory, Chandigarh and others; (2007) 6 SCC 711: Bangalore Development Authority. Vs. Syndicate Bank; (2004) 5 SCC 65: Ghaziabad Development Authority. Vs. Balbir Singh; (2005) 11 SCC 529; Ghaziabad Development Authority. Vs. Davendra Sharma; (1977) 3 SCC 457: M/s. Radhakrishna Agarwal and others. Vs. State of Bihar and others; (1989) 2 SCC 116: Bareilly Development Authority and another. Vs. Ajai Pal Singh and others; [2010 (28) LCD 1637]: Luxmi Kant Shukla. Vs. State of U.P. and others; (2010) 9 SCC 655: Hari Bansh Lal. Vs. Sahodar Prasad Mahto and others; and (2010) 10 SCC 174: Bharti Cellular Limited. Vs. Union of India and others.

31.Sri A. K. Tiwari, learned counsel appeared for Society and Sri D.K. Upadhyay, appeared for LDA and submitted that since in pursuance of agreement, the Society has been allotted the plot now it is not open for the petitioner to re-possess the same that too, when two of the petitioners have already availed the benefit of other plots. They relied on the cases reported in (2004) 6 SCC 765: Hira Tikkoo. Vs. Union Territory, Chandigarh and others; (2011) 3 SCC 1:Girnar Traders (3) Vs. State of Maharashtra and others.

32.It has been stated by the learned counsel for the LDA that in pursuance of observation made by this Court on 22.9.2010, LDA offered other plots, vide letter dated 27.10.2010 (Annexure No.A-1) but petitioner No.1 not responded. It is further stated that Government order dated 26.11.1992 requiring development authorities to settle dispute is binding in view of provision contained in Section 41 of the 1973 Act. On behalf of LDA, factum of agreement has been defended while submitting written argument as under, to reproduce:-

"9. The aforesaid Government order dated 26.11.1992 requiring the Development Authorities to settle disputes by way of compromise with Cooperative Housing Societies, is binding upon all the Development Authorities including LDA under Section 41 of the Uttar Pradesh Urban Planning and Development Act, 1973.

10.In wake of aforesaid situation, a meeting dated 27.10.1994 was held between a committee comprising of four officials of the LDA and the Society/opposite party no.2 through its Administrator. The said meeting was presided over by the Secretary of Lucknow Development Authority and the two Joint Secretaries of the LDA were also present. In the said meeting, it was decided that 60% of the developed land would be made available to the society/opposite party no.2 and in case the society was agreeable, an agreement between the LDA and society would be entered into.

The minutes of the meeting dated 27.10.1994, which are on record, were ratified by the Vice Chairman, LDA.

11.In furtherance of the decision taken in the meeting dated 27.10.1994 and on the request of the society/opposite party no.2 an agreement deed dated 28.10.1996 was executed between the society through its Secretary and also the Administrator and the LDA. In all 34 plots were adjusted in favour of the society which included the plots of the petitioners as there was no sale deed in their favour. The terms and conditions of adjustment of the plots was laid down in the said agreement deed dated 28.10.1996 which included mode of payment of development charges etc.

12.In the agreement deed dated 28.10.1996, it was also agreed between the parties that the said agreement shall form part of the compromise and shall be filed by the society/opposite party no.2 within a period of one week in the aforesaid Writ Petition no.4257 (L/A) of 1984 which was pending in the High Court, Lucknow and that the society shall get the Writ Petition withdrawn and the interim order vacated."

Statutory Provisions:-

33.Admittedly, the land in question was acquired for the housing scheme by the State Government by the notification issued under Section 357 of U.P. Nagar Mahapalika Adhiniyam, 1959, followed by notification dated 26.4.1969 under Section 363 (1) of U.P. Nagar Mahapalika Adhiniyam, 1959. For convenience, Section 357, 358, 359, 360, 361, 362, and 363, 364, 365, and 367-A are reproduced as under:

"357. Notice of Improvement Scheme--(1) Upon the approval of the draft improvement scheme by the Development Committee the Mukhya Nagar Adhikari shall prepare a notice stating--

(a) the fact that the scheme has been framed,

(b) the boundaries of the area comprised in the scheme, and

(c) the place at which particulars of the scheme, a map of the area comprised in the scheme and a statement of the land which is proposed to acquire may be seen.

(2)The Mukhya Nagar Adhikari shall cause the said notice to be published for three consecutive weeks in the official Gazette and the Bulletin of the Mahapalika, if any, and also in one or more local newspaper or newspapers as the Mukhya Nagar Adhikari thinks fit, with a statement of the period within which objections will be received. A copy of the notice shall be sent to the President of the Cantonment Board if there is a Cantonment adjoining the City.

(3)The Mukhya Nagar Adhikari shall cause copies of all documents referred to in Clause (c) of sub-section (1) to be delivered to any applicant on payment of such fee as may be prescribed."

"358. Notice of proposed acquisition of land--(1) During the thirty days next following the first on which any notice is published under Section 357 in respect of any improvement scheme, the Mukhya Nagar Adhikari shall serve a notice on--

(a) every person whose name appears in the Mahapalika assessment list as being primarily liable to pay any tax assessed upon the annual value of any building or land which it is proposed to acquire in exceeding the scheme, and

(b) the occupier (who need not be named) of each premises, entered in the Mahapalika assessment list which the Mahapalika proposes to acquire in executing the scheme.

(2) Such notice shall--

(a) state that the Mahapalika proposes to acquire such land for the purposes of carrying out an improvement scheme, and

(b) require such person, if he dissents from such acquisition, to state his reasons in writing within a period of sixty days from the service of the notice.

359. Consideration of the Scheme by the Mahapalika--After the expiry of the periods respectively prescribed under Section 357 and 358 in respect of any improvement scheme, the Development Committee shall consider any objection or representation received thereunder and after hearing all persons making any such objection or representation who may desire to be heard, and after inserting in the scheme such modifications, if any, as it thinks fit, submit to the Mahapalika the scheme together with any objection or representation with its recommendation either that the scheme be abandoned or sanctioned.

360. Abandonment or sanction of scheme by Mahapalika--(1) The Mahapalika shall on receipt of scheme from the Development Committee proceed to take such scheme into consideration together with any objection or representation received or made under Section 357 and 358 and the recommendation of the Development Committee under Section 359 and shall either abandon the scheme or sanction the scheme with such modification, if any, as it may consider necessary:

Provided that in the case of a scheme of the estimated cost of over Rs.10,00,000 the sanction of the State Government shall also be obtained.

(2) Every scheme submitted to the State Government under proviso to sub-section (1) shall contain the following:

(a) a description of, and full particulars relating to, the scheme, and complete plans and estimates of the cost of executing the scheme;

(b) a statement of the reasons for any modifications made in the scheme as originally framed;

(c) a statement of objections (if any), received under Section 357;

(d) a list of names of all persons (if any), who have dissented, under Clause (b) of sub-section (2) of Section 358 from the proposed acquisition of their land and a statement of the reasons given for such dissent, and

(e) a statement of the arrangements made or proposed by the Mahapalika for the re-housing of persons likely to be displaced by the execution of the scheme, for whose re-housing provision is required.

(3)When a scheme has been submitted to the State Government under the proviso to sub-section (1), the Mukhya Nagar Adhikari shall cause notice of the fact to be published for two consecutive weeks in the official Gazette and in the Bulletin of the Mahapalika, if any, and in the manner provided in Section 357.

(4)If the Mahapalika declines to approve the scheme the Mukhya Nagar Adhikari shall forthwith draw up and publish in the manner provided in Section 357 a notice stating that the Mahapalika has resolved not to proceed with the making of the scheme, and on such publication the notification relating to the scheme published under Section 357 shall be deemed to be cancelled.

361. State Government's power in respect of the scheme--(1) The State Government may sanction either with or without notification, or may refuse to sanction, or may return for reconsideration, any improvement scheme submitted to it under Section 360.

(2) If a scheme returned for reconsideration under sub-section (1) is modified by the Mahapalika, it shall be re-published in accordance with Section 357--

(a) in every case in which the modification affect the boundaries of the area comprised in the scheme, or involves the acquisition of any land not previously proposed to be acquired, and

(b) in every other case, unless the modification is, in the opinion of the State Government, not of sufficient importance to require republication.

362. Procedure on a scheme being modified by the Mahapalika-- The provisions of Section 357 shall apply mutatis mutandis to any scheme that the Mahapalika on its own authority is entitled to sanction, if after the consideration of objections and representations under Section 360 any modification in the original scheme is made which gives rise to the conditions mentioned in sub-section (2) of Section 361.

363. Notification of sanction of Improvement Scheme-- Whenever a scheme is sanctioned whether by the Mahapalika on its own authority or with the sanction of the State Government under the proviso to sub-section (1) of Section 360, the fact shall be announced by notification in the official Gazatte and it shall be incumbent on the Mahapalika, when it sanctions the scheme under its own authority, immediately to inform the State Government and to submit for the information of the State Government the details required by sub-section (2) of Section 360.

364. Alteration of Improvement Scheme after sanction-- At any time after an improvement scheme has been sanctioned by the State Government or by the Mahapalika on its own authority and before it has been completed, the Mahapalika may alter it:

Provided that--

(a)in the case of a scheme sanctioned by the State Government if any alteration is estimated to increase the estimated net cost of executing the scheme by more than rupees one lac, such alteration shall not be made without the previous sanction of the State Government,

(b)in the case of a scheme sanctioned by the Mahapalika on its own authority the alteration shall be sent to the State Government for information,

(c)if any alteration involves the acquisition, otherwise than by agreement of any land the acquisition of which has not been sanctioned by the State Government, the procedure prescribed in the foregoing sections of this Chapter shall, so far as applicable, be followed as if the alteration were a separate scheme.

365. Acquisition of land acquired for Improvement Scheme--(1) Upon the sanction of an improvement scheme by [under this Chapter] the Mukhya Nagar Adhikari may enter into an agreement with any person for the purchase, leasing on exchange by the Mahapalika from such person of any land which the Mahapalika is authorized to acquire for an improvement scheme or any interest in such land.

(2) The Mahapalika may for the purpose of an improvement scheme sanctioned [under this Chapter] acquire land or interest in land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Chapter.

(3) The Mukhya Nagar Adhikari may for the purpose of an improvement scheme exercise any of the powers conferred upon him under sub-section (2) of Section 273 and Section 290.

(4) All acquisition of land and interest in land for an improvement scheme authorized under this Chapter [other than Bhavi Sarak Yojana or a Nagar Prasar Yojana] shall be completed at least up to the stage of making of awards within a period of five years from the date of the notification of the scheme under Section 363 and any land in respect of which the acquisition is not so completed and the owner and occupier thereof shall cease to be subject to any liabilities under this Chapter:

Provided that the State Government may in any particular case before the expiry of such period and for reasons to be recorded in writing extend the period by one year:

[Provided that--

(a) in relation to any improvement scheme (other than a deferred street scheme or a town expansion scheme) notified under Section 42 of the United Provinces Town Improvement Act, 1919 (U. P. Act No.VIII of 1919), or Section 60 of the Cawnpore Urban Area Development Act, 1945 (U. P. Act No.VI of 1945), which by virtue of clause (e)of Section 577 may be continued and if it had been initiated under this Act, this sub-section shall be so construed as if for the words and figure within a period of five years from the date of the notification of the scheme under Section 363 the words and figure or before the thirty-first day of December, 1973 were substituted;

(b) in relation to nay improvement scheme notified under Section 363 before the commencement of the Uttar Pradesh Nagar Mahapalika (Amendment) Act, 1972, this sub-section shall be so construed as if for the words "five year" the words "ten years" were substituted Provided further that the State Government by general or special order made before the expiry of the said period of five years or of ten years, or, as the case may be, the said period ending on the thirty-first day of December, 1972 may, for reasons to be recorded in writing extend the said period by one year] 367-A. Abandonment of scheme--The Mahapalika may at any time with the prior approval of, and in accordance with such conditions as may be imposed by the State Government, abandon any scheme notified under Section 42 of the U.P. Town Improvement Act, 1919, Section 60 of the Cawnpore Urban Area Development Act, 1945 or Section 363 of this Act, and upon such abandonment, any land in respect of which the acquisition is not complete up to the stage of making of award, and the owner and occupier of such land, shall cease to be subject to any liabilities under this Chapter.]"

34.The aforesaid provisions with regard to alteration, modification or abandonment of scheme, are analogous to provisions contained in Uttar Pradesh Urban Planning and Development Act, 1973 read with the Land Acquisition Act. The land acquired under Mahapalika Adhiniyam, has been saved under Section 59 of the 1973 Act. The law settled with regard to release of land under Section 48 of the Land Acquisition Act, shall be applicable to the present controversy.

35.After acquisition, the land was handed over to LDA for development of the land in terms of Scheme and possession was accordingly taken by L.D.A. Since acquisition and possession was complete, land could not have been released in favour of society either under Section 367-A of 1959 Act or under Section 48 of the Land Acquisition Act.

36.The U.P. Urban Planning and Development Act, 1973 (in short 1973 Act), deals with the plan, development of cities in the State of U.P. Section 2 (f) defines the word, 'development area' to mean any area declared to be development area under Section 3 and Section 2 (g) defines the word, 'the development authority' or 'the authority' to mean the development authority to be constituted under Section 4 for that area. For convenience, Section 2 (f) and 2 (g) are reproduced as under:

"2 (f) 'Development area' means any area declared to be development area under Section 3' 2 (g) 'the Development Authority' or 'the Authority', in relation to any development area, means the Development authority constituted under Section 4 for that area;"

37.Section 4 of the 1973 Act, deals with the development authority. For convenience, Section 4 is reproduced as under:

"4. The Development Authority--(1) The State Government may by notification in the Gazette, constitute for the purposes of this Act, an Authority to be called the Development Authority for any development area.

(2)The Authority shall be a body corporate, by the name given to it in the said notification, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to contract and shall by the said name sue and be sued.

(3)The Authority in respect of a development area which includes the whole or any part of a city as defined in the [Uttar Pradesh Municipal Corporation Act, 1959], shall consist of the following members, namely--

(a) a Chairman to be appointed by the State Government;

(b) a Vice-Chairman to be appointed by the State Government.

(c) the Secretary to the State Government, incharge of the Department in which, for the time being, the business relating to the Development authorities is transferred, ex-officio;

(d) the Secretary to the State Government, incharge of the Department of Finance, ex officio;

(e) the Chief Town and Country Planner, Uttar Pradesh, ex-officio;

(f) the Managing Director of the Jal Nigam established under the Uttar Pradesh Water Supply and Sewerage Act, 1975, ex-officio.

(g) the Mukhya Nagar Adhikari, ex-officio;

(h) the District Magistrate of every district any part of which is include in the development area, ex-officio;

(i) four members to be elected by Sabhasads of the Nagar Mahapalika for the said city from amongst themselves;

Provided that any such member shall cease to hold office as such as soon as he ceases to be Sabhasad of the [Municipal Corporation];

(j) such other members not exceeding three as may be nominated by the State Government.

(4)The appointment of the Vice-Chairman shall be whole time.

(5)The Vice-Chairman shall be entitled to receive from the funds of the Authority such salaries and allowance and be governed by such conditions of service as may be determined by general or special order of the State Government in this behalf.

(6)A member referred to in clause (c), clause (d) clause (e) or clause (f) of sub-section (3) may instead of attending a meeting of the Authority himself depute an officer, not below the rank of Deputy Secretary in the department, in the case of a member referred to in Clause (c) or Clause (d), and below the rank of Town Planner in the case of a member referred to in Clause (e) and not below the rank of Superintending Engineer in the case of a member referred to in Clause (e) and not below the rank of Superintending Engineer in the case of a member referred to in Clause (f), to attend the meeting. The officer so deputed shall have the right to take part in the proceedings of the meeting and shall also have the right to vote.

(7)The Authority in respect of a development area other than that mentioned in Sub-section (3) shall consist of a Chairman, a Vice-Chairman an not less than five and not more than eleven such other members. Including at least one member from the Municipal Boards and Notified Area Committees having each jurisdiction in the development area, who shall hold office for such period and on such terms and conditions, as may be determined by general or special order of the State Government in this behalf.

Provided that the Vice-Chairman or a member other than an ex-officio member of the Authority may at any time by writing under his hand addressed to the State Government resign his office and on such resignation being accepted shall be deemed to have vacated his office.

(8)No act or proceedings of the Authority shall invalid by reason of the existence of any vacancy in, or defect in the constitution of, the Authority."

38.A plain reading of Section 4 of the 1973 Act shows that the Chairman, Vice-Chairman of Development Authority shall be appointed by the State Government and the "Authority" shall be of "multiple member body" consisting difference officers given under sub-section (3) of Section 4. Under Sub-section (7), the Authority with regard to a development area other than mentioned in sub-section (3) shall also be multiple member body consisting of Chairman, Vice-Chairman along with one member from Municipal Board and notified area, committees and rest shall be determined by the State Government. The minimum membership shall be 5 and the maximum be 11.

39.The Staff of the Authority has been provided by Section 5 of 1973 Act which is reproduced as under:

"5. Staff of the Authority--(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice-Chairman.

(2)Subject to such control and restrictions as may be determined by general or special order of the State Government the Authority may appoint such member of other officers and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades.

(3)The Secretary, the Chief Accounts Officer and other Officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such salaries and allowance and shall be governed by other conditions of service as may determined by regulations made in that behalf."

40.The object of the Authority has been given in Section 7 of the 1973 Act. For convenience, Section 7 is reproduced as under:

"7. Objects of the Authority--The objects of the Authority shall be to promote and secure the development of the development area according to plan and for that purposes the Authority shall have the power to acquire, hold manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with the supply of water and electricity, to dispose of sewage and to provide and maintain other services and amenities and gnarly to do anything necessary or expedient for purposes of such development and for purposes incidental thereto:

Provided that save as provided in this Act nothing contained I n this Act shall be construed as authorising the disregard by the Authority of any law for the time begin in force."

41.A plain reading of Section 7 of the 1973 Act further reveals that entire power to acquire, hold manage and dispose of land and other property in the development area vests in the authority and not on its officers like Chairman or Vice-Chairman or Secretary.

42.Chapter VI of the 1973 Act contains the provisions with regard to acquisition and disposal of land. Under Section 17 the power has been conferred on the State Government to acquire land for the purpose of development or for any other purpose under the Land Acquisition Act, 1984.

43.Section 18 of the 1973 Act deals with the power of Authority with regard to disposal of the land. For convenience, Section 18 is reproduced as under:

"18. Disposal of land by the Authority or the local Authority concerned.-

(1) Subject to any directions given by the State Government in this behalf, the Authority or, as the case may be, the local Authority concerned may dispose of--

(a) any land acquired by the State Government and transferred to it, without undertaking or carrying out any development thereon; or

(b) any such land after undertaking or carrying out such development as it thinks fit.

to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing the development of the development area according to plan.

(2) Nothing in this Act shall be construed as enabling the Authority or the local Authority concerned to dispose of land by way of gift,(***) but subject thereto, references in this Act, to the disposal of land shall be construed as references to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement, right or privilege or otherwise.

(2) Notwithstanding, anything contained in Sub-section (2), the Authority or the local Authority concerned may create a mortgage or charge over such land (including any building thereon) in favour of the Life Insurance Corporation of India. the Housing and Urban Development Corporation, or a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 or any other financial institution approved by general or special order in this behalf by the State Government.

(3) Where vacant land has been disposed of under this section by way of lease for making constructions within the time with right of forfeiture of the lease and re-entry upon failure to make constructions within such time, and the lessee fails without sufficient reason, to make the constructions or a substantial portion thereof, within the stipulated time or such extended time as the lessor may grant, the 2[lessor may subject to the provisions of Sub-section (4-A) forfeit the lease and re-enter upon the land:

Provided that no forfeiture and re-entry shall be made unless the lessee has been allowed reasonable opportunity to show cause against the proposed action.

[(4-A) Where a lessee fails to make construction within the stipulated time, and the extended time, if any, under Sub-section (4) so that the total period from the date of lease exceeds five years, a charge at the rate of two per cent of the prevailing market value of the concerned land shall be realised every year from him by the lessor and if from the date of imposition of the said charge a further period of five years elapses the lease shall stand forfeited and the lessor shall re-enter upon the land :

[Provided that where the period of five years has expired before the commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997, or where the period of five years expires within one year after such commencement, the charge shall be realizable after a period of one year from the date of such commencement.

(5) Upon such forfeiture and re-entry, the premium paid by the lessee for such land shall be refunded without any interest, after deducting-

(a) the amount, if any, due to the lessor under that lease, and

(b) a sum equivalent to 5 per cent of the premium, for administrative expenses.

(6) Any person aggrieved by an order under Sub-section (4) may, within 30 days from the date of knowledge thereof, prefer an appeal to the District Judge whose decision shall be final.

(7) The land so re-entered upon after forfeiture of lease may be disposed of in accordance with the provisions of Sub-sections (1) and (2)]."

44.Thus, under Section 18 the power with regard to disposal of land vests in the Authority or the local authority as the case may be as defined under sub-section (3) of Section 4 and sub-section (7) of Section 4 of the Act (spura). A plain reading of Section 18 (supra) shows that power has been conferred on the authority or the local authority and not on its officers like Chairman, Vice-Chairman or Secretary. Section 18 does not empower the authority to delegate its power to the officers of the Authority meaning thereby, the decision with regard to disposal of land must be taken by the Authority constituted under Section 4 of the Act and not otherwise.

45.Section 41 of the 1973 Act empowers the State Government to issue direction and the same should be carried out by the authority, the Chairman or the Vice-Chairman for the sufficient administration of the Government. For convenience, Section 41 is reproduced as under:

41. Control by State Government.-

(1) The [Authority), the Chairman or the (Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final.

(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:

Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.

(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called ii question In any Court.]

46.A plain reading of Section 41 provides that firstly, the direction should be issued in the form of policy decision for the efficient administration and implementation of the Act. Section 41 does not empower the State Government to issue a direction for purpose other than what has been provided in Section 41 or to do a thing which is not prescribed by the Act. Efficient administration means effective implementation of the Act that too, in public interest and not to safeguard the interest of a person or an individual society. The order must be solely and exclusively in public interest and for the welfare of the citizen.

47.Section 41 further does not empower the State Government to direct the authority, Chairman and Vice-Chairman of the Development Authority to exceed their jurisdiction. Even if the State Government issued an order under Section 41 of the Act for efficient administration, then the officer or authorities under 1973 Act have to discharge their obligations within four corners of 1973 Act and in the manner provided by the 1973 Act itself. No one can encroach over each others jurisdiction while discharging their obligation under 1973 Act.

48.The law is very well settled that a thing should be done in the manner provided by the Act and statute and not otherwise, vide Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Versus State of Rajasthan, AIR 1961 SC 1527, Patna Improvement Trust Vs. Smt. Lakshmi Devi and others, AIR 1963 SC 1077; State of U.P. Vs. Singhara Singh and other, AIR 1964 SC 358; Barium Chemicals Ltd. Vs. Company Law Board AIR 1967 SC 295, (Para 34) Chandra Kishore Jha Vs. Mahavir Prasad and others, 1999 (8) SCC 266; Delhi Administration Vs. Gurdip Singh Uban and others, 2000 (7) SCC 296; Dhanajay Reddy Vs. State of Karnataka, AIR 2001 SC 1512, Commissioner Of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and others, 2002 (1) SCC 633; Prabha Shankar Dubey Vs. State of M.P., AIR 2004 SC 486 and Ramphal Kundu Vs. Kamal Sharma, AIR 2004 SC 1657. Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nika Ram Vs. State of Himachal Pradesh, AIR 1972 SC 2077; Ramchandra Keshav Adke Vs. Govind Joti Chavare and others, AIR 1975 SC 915; Chettiam Veettil Ammad and another Vs. Taluk Land Board and others, AIR 1979 SC 1573; State of Bihar and others Vs. J.A.C. Saldanna and others, AIR 1980 SC 326, A.K.Roy and another Vs. State of Punjab and others; AIR 1986 SC 2160; State of Mizoram VS. Biakchhawna, 1995 (1) SCC 156; J.N.Ganatra Vs. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese and others Vs. Bar Council of Kerala and others, AIR 1999 SC 1281; and Chandra Kishore Jha Vs. Mahavir Prasad (1998) 8 SCC 266.

49.Accordingly, power conferred under Section 41 of the 1973 Act on the State Government is a power to safeguard public interest by taking policy decision within the four corner of the statutes and does not empower the State or the Development authority or its officers to travel beyond the jurisdiction conferred by the statutes or to secure individual interest.

50.Sub-section (2) and (3) of Section 41 of 1973 Act further confer the revisional power on the State Government and that can be exercised by the Government by revising the order or decision taken by the Development Authorities in accordance with law.

51.By the Act No.1 of 1997, the tenure of the office bearers of the Cooperative Housing Society has been extended by the State Government by amending Section 29. The amendment made in Section 29 by Amending Act No.1/1997 is reproduced as under:

"An Act further to amend the Uttar Pradesh Cooperative Societies Act, 1965 It is hereby enacted in the Forty-eighth Year of the Republic of India as follows:--

1.Short title, and commencement.--(1) This Act may be called the Uttar Pradesh Cooperative Societies (Amendment) Act, 1997.

(2) It shall be deemed to have come into force on April 16, 1997.

[Ss. 2-3, Incorporated in the principal Act].

4. Validation.-- Notwithstanding anything contained in the principal Act, the Administrator or the Committee of Administrators appointed under Section 29 of the principal Act and exercising the powers, performing the functions and discharging the duties of the Committee of Management immediately before the commencement of the Act shall be deemed to have validity continued to be appointed as Administrator or Committee of Administrators until another Administrator or Committee of Administrators is appointed or the Committee of Management is reconstituted under the aforesaid section and anything done or any action taken by such Administrator or the Committee of Administrators on or after December 31, 1995 shall be valid as if the provisions of the principal Act as amended by this Act were in force at all material times.

5. Repeal and savings.--(1) The Uttar Pradesh Cooperative Societies (Amendment) Ordinance, 1997 (U.P. Ordinance 1 of 1997) is hereby repealed.

(2) Notwithstanding such repeal, anything done or by any action taken under the provisions of the principal Act, as amended by the Ordinance referred to in sub-section (1), shall be deemed to have been done or taken under the corresponding provisions of the principal Act as amended by this Act as if the provisions of this Act were in force at all material times."

52.Accordingly, while considering the right of the society to enter into the agreement on 28.10.1996, Sri B.S. Dahiya, the Amending Act, must be taken into account.

Validity of Agreement:-

53.In view of the above, at the face of record, the Legislature has extended the term of Office bearers of societies who were working on 31.12.1995. The amending Act is quite clear and does not suffer from any ambiguity. Once the Legislature to their wisdom has provided that the Office bearers working on 31.12.1995, shall continue for further period of two years, then it is not open for this Court or the respondents to draw inference on unfounded ground to validate the rights of Sri B. S. Dahiya to enter into the compromise on 28.10.1996, since he was no more President on the said date. Even the Society in its affidavit, had stated that Sri B.S. Dahiya was not empowered to enter into the compromise. The change of stand by the Society at later stage, based on unfounded facts, seems to be 'afterthought creation' out of collusive act between the newly appointed office bearers of the Society and the LDA. Hence it lacks legal sanctity.

54.In the case reported in (2010) 9 SCC 655: Harbans Lal Vs. Sarodar Prasad Mahto and others, Hon'ble Supreme Court held that changing of stand at later stage, without any foundation, is not permissible.

In the present case, after the election, new Secretary joined. He filed affidavit supporting the case of intervener. Such action by filing another affidavit contrary to earlier stand, seems to be a collusive act and does not make out a case to draw contrary inference than what emerges from original pleading on record.

55.The Act No.1 of 1997 has been given effect from 31.12.1995. Now, it is settled proposition of law that every enactment or statutory provision shall be prospective unless impliedly or by specific provision, it is made retrospective, vide 1994 Supp (1) SCC 44 ( K Narayanan and others. Vs. State of Karnataka and others); 2007) 10 SCC 137 (State of T.N. Vs. Seshachalam), (2008) 3 SCC 641 ( A. Manoharan and others. Vs. Union of India and others); (1997) 10 SCC 419 ( State of Rajasthan. Vs. R. Dayal and others).

Thus, since amendment has been done extending the tenure of Office bearers from 31.12.1995 it could not be given effect to from 31.10.1995. Since on 31.12.1995, Sri B.S. Dahiya was not working and he was no more in Office, he was not entitled to avail the benefit of Act No.1 of 1997 because of expiry of his term earlier to it, i.e., on 31.10.1995.

Statutory provisions should be given their natural meaning and no causus omissus may be supplied by the Courts in absence of any ambiguity in letters and words of the statutes.

Erstwhile Secretary has rightly in his affidavit dated 6.2.1997 stated that the compromise signed by Sri B.S. Dahiya, treating him as President of the Society on 28.10.1996 was without any authority. It was a collusive act to extend undue advantage to some of the members. Since Sri B.S. Dahiya was not President of the Society, the compromise entered into on 28.10.1996 was without any authority hence lacks legal sanctity and void ab initio.

56.Apart from the fact that on behalf of the Society, Sri B.S. Dahiya, was not competent or authorised office bearer to sign the agreement on behalf of the society, the agreement dated 28.10.1996 at the face of record, seems to be substantially illegal and suffers from 'jurisdictional error' since admittedly, it was the Secretary LDA entered into discussion with the society and signed agreement which was alleged to be approved by the Vice-Chairman.

57.The power with regard to disposal of land vests in the authority constituted under Section 4 read with Section 18 of the 1973 Act and neither in the Secretary nor in the Vice-Chairman of the LDA. Nothing has been brought on record to show that the matter was placed before the Board/Authority to take a decision with regard to alleged agreement between the LDA and the Society. The decision taken at individual level by the Vice-Chairman or the Secretary or both of them, shall not be the decision of the 'Authority' under the 1973 Act. Hence the agreement signed or decision taken shall be an incident of exceeding of jurisdiction and a decision taken without jurisdiction is nullity in law.

58.It is settled law that a decision or order made without jurisdiction, is nullity in law, vide AIR 1954 SC 340 Kiran Singh Vs. Chaman Paswan; AIR 1951 SC 230 United Commercial Bank Ltd. Vs. their Workmen ; AIR 1978 SC 22 Smt. Nai Bahu Vs. Lal Ramnarayan & ors.; AIR 1981 SC 537 Natraj Studios Pvt. Ltd. Vs. Navrang Studio & Anr.; AIR 1988 SC 1531 A.R. Antuley Vs. R.S. Nayak; AIR 1992 SC 96 Union of India Vs. Deoki Nandan Aggarwal; (1995) 5 SCC 159; U.P.; Karnal Improvement Trust VS. Prakash Wanti & Anr.; AIR 1996 SC 1373 Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd.; AIR 1996 SC 2664 State of Gujarat Vs. Rajesh Kumar Chimanlal Barot & Anr.; AIR 1999 SC 2213 Kesar Singh & Ors. Vs. Sadhu & ors.; AIR 2000 SC 2484 Collector of Central Excise, Kanpur Vs. Flock (India) (P) Ltd., Kanpur.

59.In a recent judgment reported in (2011) 5 SCC 142: Chairman-Cum-Managing Director, Coal India Limited and others. Vs. Ananta Saha and others, their lordships of Hon'ble Supreme Court has reiterated aforesaid proposition of law and observed that in case the basic order itself is without jurisdiction or illegal, and not sustainable, then all subsequent actions relying upon such order, shall be bad in law and void ab initio. Relevant para 32 of the judgment in Ananta Saha's case, (supra), is reproduced as under:

"32. It is a settled legal proposition that if initial action s not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation, is removed, the superstructure falls."

Release of acquired land:-

60.The provisions contained in U.P. Nagar Mahapalika Adhiniyam is analogous to provisions contained in Land Acquisition Act and the land was acquired for the scheme with due notification in the official gazette. Whether the land so acquired may be released by the State Government meant for the Development under the scheme in favour of the society or for any other purpose that too, when under the scheme, the same has been allotted to the petitioner and the other similarly situated persons?

61.Admittedly, the land was acquired for the Scheme in question. The acquisition proceedings were finalised. In such situation, it was not open for the Government to release the land in favour of the society and hence same was rightly restored to the LDA by the State Government by the subsequent order (supra).

62.In the case reported in 1970 (2) SCC 149: L.T. Governor of Himanchal Pradesh and another. Vs. Sri Avinash Sharma, Hon'ble Supreme Court held that after the possession of land is taken place in pursuance of notification issued under Section 17 (1) of the Land Acquisition Act, the land itself vested in the Government and it cannot be cancelled under Section 21 of General Clauses Act nor the notification can be withdrawn in exercise of power conferred by Section 48 of the Land Acquisition Act, to quote relevant para 8 as under:-

"8. ... It is clearly implicit in the observations that after possession has been taken pursuant to a notification under Section 17 (1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17 (1), the land vests in the Government. There is no provision by which land statutorily vested I n the Government reverts to the original owner by mere cancellation of the notification."

63.In the case reported in (1993) 2 SCC 84: Rajasthan Housing Board and others. Vs. Shri Kishan and others, reiterating the aforesaid proposition, Hon'ble Supreme Court held that where land has been acquired, then mere fact that a fraction of the land is not waste or arable having some superstructures such as huts, kham houses, cattle sheds, kutchha and pucca houses would not prevent Government from exercising urgency power under Sub-Section (4) read with Section (1) of Section 17 dispensing with the requirement of Section 5-A. Government's satisfaction regarding, being subjective, when there is material upon which it could have been formed fairly, court would not interfere nor would it examine the material as an appellate authority to see existence of urgency. There lordships further held that in any event, the Government cannot withdraw the acquisition under Section 48 of Land Acquisition Act when the Government has taken possession. Once the possession of land is taken, then it is not open for the Government to withdraw from the acquisition.

64.In (1993) 4 SCC 369: Satendra Prasad Jain and others. Vs. State of U.P. and others, Hon'ble Supreme Court held that though Section 17 (3-A) postulates that the owner will be offered an amount equivalent to per cent of the estimated compensation for the land before the Government takes possession of it under Section 17 (1) of the Land Acquisition Act but Section 11-A cannot be so construed as to leave the Government holding title to the land without the obligation to determine compensation, made an award and pay to the owner the difference between the amount of the award and the amount of 80 per cent of estimated compensation. The non-compliance of Section 17 (3-A) would not render the possession illegal entitling the Government to withdraw from the acquisition.

65.In (1996) 3 SCC 1: Pratap and another. Vs. State of Rajasthan and others, Hon'ble Supreme Court held that land vests in the Government free from all encumbrances with the publication of notification under Section 52 (1) of Land Acquisition Act. Their lordships further held that even if award is not made within the stipulated period or provision regarding part payment of compensation is not complied with, the acquisition would not come to an end.

66.In (1996) 3 SCC 124: U.P. Jal Nigam, Lucknow through its Chairman and another. Vs. Kalra Properties (P) Ltd., Lucknow and another, Hon'ble Supreme Court held that after notification under Section 4 (1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. The sale is void against the State and the purchaser acquired no right, title or interest in the land. To reproduce relevant para-3 as under:

"3. ... It is settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property. In this case, notification under Section 4[1] was published on March 24, 1973, possession of the land admittedly was taken on July 5, 1973 and pumping station house was constructed. No doubt, declaration under Section 6 was published later on July 8, 1973. Admittedly power under Section 17(4) was exercised dispensing with the enquiry under Section 5A and on service of the notice under Section 9 possession was taken, since urgency was acute, viz., pumping station house was to be constructed to drain out flood water. Consequently, the land stood vested in the State under Section 17 [2] free from all encumbrances. It is further settled law that once possession is taken, by operation of Section 17(2), the land vests in the State free from all encumbrances unless a notification under Section 48(1) is published in the Gazette withdrawing from the acquisition. Section 11A, as amended by Act 68 of 1984, therefore, does not apply and the acquisition does not lapse. The notification under Section 4(1) and the declaration under Section 6, therefore, remain valid. There is no other provision under the Act to have the acquired land divested, unless, as stated earlier, notification under Section 48(1) was published and the possession are surrendered pursuant thereto. That apart, since M/s. Kalra Properties, respondent had purchased the land after the notification under Section 4(1) was published, its sale is void against the State and it acquired no right, title or interest in the land. Consequently, it is settled law that it cannot challenge the validity of the notification or the regularity in taking possession of the land before publication of the declaration under Section 6 was published."

67.In (1996) 6 SCC 424: Allahabad Development Authority. Vs. Nasiruzzaman and others, Hon'ble Supreme Court held that Section 11-A of the Land Acquisition Act, does not apply to the cases of acquisition under Section 17 where the possession has already been taken and vested in the State Government. It has been further held that when previous decision is found to be erroneous on its face, it does not operate as res judicata. Hon'ble Supreme Court further held that when Legislature is to act in a particular manner, the non-compliance of such provision while passing an order cannot operate as res judicata or estoppel against the person in dispute.

68.In (2005) 1 SCC 558: Govt. of A.P. And another. Vs. Syed Akbar, Hon'ble Supreme Court held that where the land is acquired for public purpose, then it is not permissible for the High Court directing the authorities to handover the unused portion of land to erstwhile owner. The unused acquired land should be utilised for other public purpose. To reproduce relevant portion of para 14 as under:-

"14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order."

69.In (2005) 12 SCC 508: Bangalore Development authority and others. Vs. R. Hanumaiah and others, Hon'ble Supreme Court held that under the relevant Act, the Bangalore Development Authority have no jurisdiction to reconvey the land acquired or a part thereof by withdrawing the acquisition itself in pursuance of powers conferred under Section 48 of the Land Acquisition Act, 1894 read with Section 21 of the General Clauses Act, 1897. The land acquired for the particular purpose cannot be used for any other purpose than for which it was acquired. Accordingly, with regard to present dispute the land could not have been transferred to the society and the society to private respondent. The land could have been used only for the scheme i.e., Aliganj Housing Scheme.

70.Apart from the above, the Government order dated 15.6.1984 by which the land was alleged to be released, was not notified in the official gazette. Accordingly, it does not have got a legal sanctity and having no statutory force, the land could not have been transferred under the garb of it. Whether the Government would have cancelled by the subsequent order dated 22.5.1986 or not, makes no difference. The order dated 15.6.1984 was passed in utter disregard with the statutory provisions and suffers from jurisdictional error hence, does not extend any statutory right to LDA or other society to transfer the land through sale-deed or otherwise.

71.In 2009 AIR SCW 6953: Shanti Sports Club & Anr. Vs. Union of India and Ors., Hon'ble Supreme Court ruled that decision to withdraw the acquired land must be published in official gazette. The exercise of power by the Government under Section 48 (1) of the Land Acquisition Act, must be made known to public at large so that those interested in accomplishment of the public purpose for which the land is acquired or the concerned company may question such withdrawal by making representation to the higher authorities or by seeking Court's intervention. Hon'ble Supreme Court also declared to extend parity on the pretext that some of the land was released by the Government holding that concept of equality enshrined in Article 14 of the Constitution of India, is positive concept and cannot be applied to perpetuate the illegality. Hon'ble Supreme Court further held that no construction could be raised in violation of Municipal or other law and no compromise would be made with Town Planning Scheme, to quote:-

"52. ... This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme etc. on the ground that he has spent substantial amount on construction of the buildings etc. - K. Ramdas Shenoy v. Chief Officers, Town Municipal Council, Udipi 1974 (2) SCC 506, Dr. G.N. Khajuria v. Delhi Development Authority 1995 (5) SCC 762, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu 1999 (6) SCC 464, Friends Colony Development Committee v. State of Orissa 2004 (8) SCC 733, M.C. Mehta v. Union of India 2006 (3) SCC 399 and S.N. Chandrasekhar v. State of Karnataka 2006 (3) SCC 208."

72.In (2009) 10 SCC 501: Sita Ram Bhandar Society, New Delhi. Vs. Lieutenant Governor, Government of NCT, Delhi and others, it has been held that where the possession of the acquired land was taken over by the Land Acquisition Officer, then such land shall vest in the State Government absolutely. Merely because the owner re-entered the land on account of interim order even otherwise, would not create right or title. More so, when the suits/writ petitions of the petitioner were dismissed. Hon'ble Supreme Court deprecated the measures adopted by the petitioner to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. To reproduce relevant paras as under:-

"40. In Narayan Bhagde Case one of the arguments raised by the landowner was that as per the communication of the Commissioner the land was still with the landowner and possession thereof had not been taken. The Bench observed that the letter was based on a misconception as the landowner had re-entered the acquired land immediately after its possession had been taken by the Government ignoring the scenario that he stood divested of the possession, under Section 16 of the Act. This Court observed as under: (Narayan Bhagde case, SCC p. 712, para 29).

"29. This was plainly erroneous view, for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant did not have the effect of obliterating the consequences of vesting."

To our mind, therefore, even assuming that the appellant had re-entered the land on account of the various interim orders granted by the courts, or even otherwise, it would have no effect for two reasons,

(d)that the suits/petitions were ultimately dismissed and

(e)(2) that the land once having vested in the Government by virtue of Section 16 of the Act, re-entry by the land owner would not obliterate the consequences of vesting.

41. We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc., that had been filed had failed. Undoubtedly, every citizen has a right to utilise all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter."

73.In (2009) 11 SCC 480: Rajinder Singh Bhatti and others. Vs. State of Haryana and others along with other connected cases, Hon'ble Supreme Court held that decision of the Government to withdraw from acquisition needs to be published in official gazette under Section 48 (1) in the like manner as of notification under Section 4 and 6 of the Act.

74.In the present case neither the earlier order of the Government withdrawing acquisition nor subsequent decision to annul the earlier order was published. Later on, the Government had cancelled its earlier order with regard to release in favour of the society. It renders the entire proceeding or action taken during the period in question, nullity in law restoring earlier possession.

75.In another judgment in the case of Meera Sahni (supra), Hon'ble Supreme Court held that any person who purchases the land after publication of notification under Section 4 (1) of Land Acquisition Act, does so at his own peril and such alienation of land does not bind the Government or the beneficiary under the acquisition. After taking possession of the land, all rights, title and interest in land stand vested in the State under Section 16 of the Act free from all encumbrances and thereby absolute title in the land is acquired thereunder.

76.In Rajinder Singh Bhatti (supra), Hon'ble Supreme Court held that any decision of the Government nto withdraw from clause under Section 48 of the Land Acquisition Act, requires to be notified in the official gazette.

Admittedly, in the present case, the land alleged to be given to the Society, has not been denotified except the alleged agreement dated 28.10.1996 (supra).

Rival Submissions:-

77.Sri Prashant Chandra, learned Senior Counsel would submit that no mandamus may be issued under Article 226 of the Constitution where controversy relates to breach of the contract and compel the authority to breach of contract pure and simple.

78.The cases relied upon by him while defending the intervener and State action, are discussed hereinafter.

79.In the case of Defence Enclave Residents Society (supra), the controversy before the Hon'ble Supreme Court was with regard to factual dispute between the Development Authority and the allottee of the plot without involving any fundamental right of the allottee. Accordingly, Hon'ble Supreme Court held that contractual dispute arisen between the two parties with regard to price payable for plots allotted to allottees, cannot be adjudicated unless full facts of disputes are ascertained and contractual rights of parties are adjudicated. In the present case, the controversy in hand, does not relate to interpretation of contract between the petitioners and the LDA but it relate to petitioners right in lieu of allotment of plot made in accordance with Rules and payment of entire dues in terms of notice.

80.In the case of Hira Tikkoo (supra), the dispute was with regard to a land where the allotment of land later on, found to be in contravention of statutory provisions. Their lordships of Hon'ble Supreme Court held that full payment of dues in pursuance of allotment shall not create any right. However, their lordships held that statutory compulsion and rules of fairness have both to be evenly balanced. The decision of administration to allot alternative plot, may be of smaller size because of paucity of land, may be said to be a fair decision under the circumstances. Their lordships of Hon'ble Supreme Court held that Courts cannot allow the administration to breach of law and harm public interest and at the same time cannot absolve its liability and give compensation to parties and citizens who have suffered loss because of their grossly mistaken decision and actions. Hon'ble Supreme Court further ruled that any adjusting of equities to those who have languished and slept over their rights have to be denied any relief more so when there has been much time lapsed between the original allotment and proposed allotment of alternative plot. The case of Hira Tikkoo (supra) does not seem to come to any help to the intervener.

81.In the case of Hira Tikkoo (supra), industrial plots were allotted by the Chandigarh Administration of the area covered by the scheme comprising reserved forest land the land in periphery of 900 metres from airbase and therefore, coming under prohibition or restriction under Forest Act and Aircraft Act. Hence Hon'ble Supreme Court held that allottee cannot acquire any vested right under 1952 Act and Rules merely on payment of full price of plots when implementation of the Scheme would contravene another statute and would be contrary to general public interest. The case of Hira Tikkoo (supra) instead of helping the intervener or other respondents, seems to be a case having ratio helping the petitioner Their lordship held that no relief can be granted under the promissory estoppel or under the doctrine of legitimate expectation where the action of public authority, harm the public interest and is in contravention of statutory provisions, to reproduce relevant portion from the judgment of Hira Tikkoo (supra) as under:

"22. In public law in certain situations, relief to the parties aggrieved by action or promises of public authorities can be granted on the doctrine of 'legitimate expectation' but when grant of such relief is likely to harm larger public interest, the doctrine cannot be allowed to be pressed into service. We may usefully call in aid Legal Maxim: 'Salus populi est suprema lex: regard for the public welfare is the highest law. This principle is based on the implied agreement of every member of society that his own individual welfare shall in cases of necessity yield to that of community. His property, liberty and life shall under certain circumstances be placed in jeopardy or even sacrificed for the public good'.

23. On the same principle and to protect larger public interest, the Chandigarh Administration can be relieved of fulfilling legitimate expectation arising from its allotment of plots on the ground that their development schemes under consideration have been found to be in contravention of Forest Act and Aircrafts Act. Another legal maxim which can be invoked to their aid is : 'Lex non cogit ad impossibilia : the law does not compel a man to do that which he cannot possibly perform'.

25. Surely, the doctrine of estoppel cannot be applied against public authorities when their mistaken advice or representation is found to be in breach of a Statute and therefore, against general public interest. The question, however, is whether the parties or individuals, who had suffered because of the mistake and negligence on the part of the statutory public authorities, would have any remedy of redressal for the loss they have suffered. The 'rules of fairness' by which every public authority is bound, requires them to compensate loss occasioned to private parties or citizens who were misled in acting on such mistaken or negligent advice of the public Authority. There are no allegations and material in these cases to come to a conclusion that the action of the authorities was mala fide. It may be held to be careless or negligent. In some of the English cases, the view taken is that the public authorities cannot be absolved of their liability to provide adequate monetary compensation to the parties who are adversely affected by their erroneous decisions and actions. But in these cases, any directions to the public authorities to pay monetary compensation or damages would also indirectly harm general public interest. The public authorities are entrusted with public fund raised from public money. The funds are in trust with them for utilisation in public interest and strictly for the purposes of the Statute under which they are created with specific statutory duties imposed on them. In such a situation when a party or citizen has relied, to his detriment, on an erroneous representation made by public authorities and suffered loss and where doctrine of 'estoppel' will not be invoked to his aid, directing administrative redressal would be a more appropriate remedy than payment of monetary compensation for the loss caused by non-delivery of the possession of the plots and consequent delay caused in setting up industries by the allottees.

26. In the predicament aforesaid, the Administration has adopted a fair attitude. It has come out with a proposal to give alternative plots but of smaller sizes because of the paucity of land available in development schemes in Phase-I &II. The statutory compulsion and the rule of fairness have both to be evenly balanced. This Court cannot allow the Administration to commit breach of law and harm public interest. At the same time, it cannot be absolved of its liability to give appropriate redressal and compensation to the parties and citizens who have suffered loss because of their grossly mistaken decisions and actions. The allottees of the plots, when they were given option to accept alternative plots of smaller sizes, ought to have accepted the offer being the appropriate compensation to them in the circumstances obtaining. The allottees who have consented to accept alternative plots even of smaller sizes and others who did not consent, maybe, because they were in litigation and required plots of bigger sizes, constitute two different groups requiring different treatment in the matter of directing grant of appropriate redressal to them by the Administration."

82.In the present case, firstly, there appears intentional and deliberate attempt on the part of the LDA and State authorities to allot the plots to the Society in contravention of statutory provisions and secondly, the agreement between the LDA and the Society was entered into by incompetent persons de hors the statutory provisions and thirdly, at no stretch of imagination, the land was denotified and released in accordance with statutory provisions hence for any reason whatsoever, the land could not have been allotted to the Society, in consequence thereof, there could not have been any sale-deed in favour of the intervener. For any irregularity, mistake, deliberate wrong committed by the LDA and the State or even inadvertent mistake, it is for the intervener to claim alternative site or plot from the Society or the LDA as the case may be, and not the petitioner who is lawful allottee and deposited entire amount in terms of notice, as far back as in the year 1984.

83.The case of Bangalore Development Authority. Vs. Syndicate Bank (supra), also relates to the controversy where, a lawful allottee was not given delivery or possession. The question of necessity to prove rent paid in case of house taken on lease due to non-availability of allotted house, was the subject matter of dispute before the Hon'ble Supreme Court. In such a situation, it was held that loss in such cases was the rental income which the house would have fetched from the agreed date of delivery to actual date of delivery. The case is not applicable under the facts of the present dispute.

84.The case of Ghaziabad Development Authority. Vs. Balbir Singh (supra) relates to misfeasance in public office and jurisdiction of National Commission/Forums under the Consumer Protection Act. It was held that in granting compensation for misfeasance in public office, Commission/Forum must determine that the loss or injury suffered by citizen at the hands of said authorities is due to mala fide or capricious or oppressive act after recording finding that complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression from the Commission/Forum. The observation made by Hon'ble Supreme Court in the case of Balbir Singh (supra), seems to help the petitioners to claim compensation and not the respondents or the intervener,to quote relevant portion of para-5 of the said case:-

"5. ...The First Law Commission constituted after coming into force of the Constitution on liability of the State in tort, observed that the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine liability of the State. Friedmann observed:

"It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between governmental and non-governmental function, but the nature and form of the activity in question."

Even Kasturi Lal Ralia Ram Jain v. State of U.P. did not provide any immunity for tortuous acts of public servants committed in discharge of statutory function if it was not referable to sovereign power. Since house construction or for that matter any service hired by a consumer or facility availed by him is not a sovereign function of the State the ratio of Kasturi Lal could not stand in way of the Commission awarding compensation. We respectfully agree with Mathew, J. in Shyam Sunder v. State of Rajasthan that it is not necessary, 'to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the State' (SCC p. 695, para 20). In any case the law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. As far back as 1878 the law was succinctly explained in Geddis v. Proprietors of Bann Reservoir thus:

"I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the Legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing what the Legislature has authorised, if it be done negligently."

Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word 'compensation' is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, 'compensating or being compensated; thing given as recompense;'. In legal sense it may constitute actual loss or expected loss and may extend to physical mental or even emotional suffering, insult or injury or loss..."

85.Hon'ble Supreme Court further (supra) while considering the question with regard to misfeasance in public office relied upon the Administrative Law by Wade and observed, to quote:-

"The moment the authority came to know of the mistake committed by it, it took immediate action by allotting alternative site to the respondent. It was compensation for exact loss suffered by the respondent. It arose in due discharge of duties. For such acts or omissions the loss suffered has to be made good by the authority itself. But when the sufferance is due to mala fide or oppressive or capricious acts etc. of a public servant, then the nature of liability changes. The Commission under the Act could determine such amount if in its opinion the consumer suffered injury due to what is called misfeasance of the officers by the English Courts. Even in England where award of exemplary or aggravated damages for insult etc. to a person has now been held to be punitive, exception has been carved out if the injury is due to, 'oppressive, arbitrary or unconstitutional action by servants of the Government' (Salmond and Heuston on the Law of Torts). Misfeasance in public office is explained by Wade in his book on Administrative Law thus:

"Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury." (p.777).

The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome [1972 AC 1027: (1972) 1 All ER 801] on the principle that, 'an award of exemplary damages can serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard [1964 AC 1129: (1964) 1 All ER 367, 410] it was observed by Lord Devlin, 'the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'. A public functionary if he acts maliciously or oppressively and the exercise of powers results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which apart, from other factors succeeded in keeping a salutary check on the functioning in the government or semi-government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them. Various decisions rendered from time to time have been referred to by Wade on Misfeasance by Public Authorities..."

Thus, the case of Balbir Singh (supra) does not seem to make out a case in favour of the Society or the intervener, rather helps the petitioner to avail the possession of plot in dispute.

86.The case of M/s. Radhakrishna Agarwal (supra), relates to contractual obligations. It does not seem to applicable under the facts and circumstances of the present case. Moreover, much water has flown from river Yamuna and after the said judgment of Hon'ble Supreme Court, vide (1978)1 SCC 248:Menka Gandhi vs. Union of India.

87.The case of Ajai Pal Singh (supra), relates to enhancement of costs, rate of instalment and alteration in terms and conditions by th Authority at the time of allotment of the houses/flats which seems to be not applicable to the facts of the present case.

88.In the case reported in (2011) 6 SCC 125: Humanity and another. Vs. State of West Bengal and others, relying upon the leading case reported in (1979) 3 SCC 489: Ramana Dayaram Shetty. Vs. International Airport Authority of India, Hon'ble Supreme Court held that the Government cannot act in a manner which would benefit a private party as it would be contrary to public interest, to reproduce relevant portion of para 23, 24 and 25 of the judgment of State of West Bengal (supra), as under:

"23. It has been repeatedly held by this Court that in the matter of granting largesse, Government has to act fairly and without even any semblance of discrimination. Law on this subject has been very clearly laid down by this court in the case of Ramana Dayaram Shetty v. International Airport Authority of India. A three- Judge Bench in the said decision has recognized that the Government, in a welfare State, is in a position of distributing largesse in a large measure and in doing so the Government cannot act at its pleasure. This court perusing the new jurisprudential theory of Professor Reich in his article on the "The New Property" accepted the following dictum contained therein: (SCC p.505, para 11) "11. ...That Government action be based on standards that are not arbitrary on unauthorised."

24. This court explained the purport of the aforesaid formulation by holding: (Ramana case, SCC p.505, para 11) "11. ...The government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licenses only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual."

The aforesaid dictum in Ramana is still followed by this court as the correct exposition of law and has been subsequently followed in many other decisions.

25. In Kasturi Lal Lakshmi Reddy v. State of J & K., another three-Judge Bench relied on the dictum in Ramana and held that whenever any governmental action fails to satisfy the test of reasonableness and public interest, it is liable to be struck down as invalid. This Court held that a necessary corollary of this proposition is that the Government cannot act in a manner which would benefit a private party. Such an action will be contrary to public interest. (See SCC p. 13, para 14 of the Report)"

In the case reported in (2011) 6 SCC 756: APM Terminals B.V. Vs. Union of India and another, Hon'ble Supreme Court held that any change in decision making process must be free from arbitrariness, irrationality bias and malice, to quote relevant portion of para 69:-

"69. As was held in Shimnit Utsch India (P) Ltd. Vs. W.B. Transport Infrastructure Development Corpn. Ltd., the Government was entitled to change its policies with changing circumstances and only on grounds of change a policy does not stand vitiated. It was further held that the Government has the discretion to adopt a different policy, alter or change its policy to make it more effective. The only qualifying condition is that such change in policy must be free from arbitrariness, irrationality, bias and malice and must be in conformity with the principle of Wednesbury reasonableness."

89.The case of Luxmi Kant Shukla (supra), decided by a Division Bench of this Court, judgment pronounced by one of us (Hon'ble Mr. Justice Devi Prasad Singh), deals with the different facts and circumstances and does not seem to be applicable with regard to present controversy.

90.The case of Sahodar Prasdad Mahto (supra), relates to public interest litigation. Hon'ble Supreme court held that in absence of violation of statutory rules, Court cannot go into suitability or otherwise of a candidate for a particular appointment because choosing a suitable candidate is an administrative function.

On the other hand, in the present case as held (supra) entire action of the opposite parties seems to be violative of statutory provisions.

91.In the case of Bharti Cellular Limited (Supra), their lordships of Hon'ble Supreme Court held that a party which has unconditionally accepted package and availed benefit thereof, cannot after such an acceptance reject other unfavourable conditions. However, the case of Bharti Cellular (supra), does not seem to be applicable to the facts of the present case.

Rule of Law

92.In the case reported in S.G. Jaisinghani. Vs. Union of India AIR 1967 SC 1427, Hon'ble Supreme Court held that absence of arbitrary power, is first essential of 'rule of law' upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.

93.In the case reported in (2009) 10 SCC 388, Shanti Zenith Metal Pvt. Ltd. Vs. State of Maharashtra, Hon'ble Supreme Court held that in case an applicant approaches the Court, complaint against statutory authority alleging arbitrariness, bias or favouritism, the Court being the custodian of law must examine the allegation as to whether there is any substance in those allegations. Hon'ble Supreme court reiterated the principle laid down in the case of S.G. Jaisinghani (supra) and ruled that State action must be bona fide and not be arbitrary or suffering from favouritism.

In the case reported in AIR 1975 Supreme Court 2260: Smt. Indira Nehru Gandhi Vs. Raj Narain, Hon'ble Supreme Court interpreted the 'Rule of law' as under:

"205. Rule of Law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such such decision is the antithesis of a decision taken in accordance with the rule of law."

94.In the case reported in (2011) 6 SCC 508: NOIDA Entrepreneurs Association. Vs. NOIDA and others, Hon'ble Supreme Court while emphasising for maintenance of rule of law in the country observed that public bodies or the State instrumentalities are trustees of the public property and their action must be in conformity with the Statutory provisions and also should be just and fair, to quote relevant portion:

"38. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee.

39.State actions are required to be non-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in conformity with some principle which meets the test of reason and relevance. Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination". The rule of law prohibits arbitrary action and commands the authority concerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, nor even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law.

40.The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action/order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of colourable exercise of power. The Rule of Law is the foundation of a democratic society. (Vide: M/s. Erusian Equipment & Chemicals Ltd. v. State of West Bengal & Anr., AIR 1975 SC 266; Ramana Dayaram Shetty v. The International Airport Authority of India & Ors., AIR 1979 SC 1628; Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157; Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. & Ors., AIR 1991 SC 537; and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors., AIR 1999 SC 2468)."

95.A country should not be ruled by men but should be ruled by law. It means, the State action must conform to statutory provisions. The power must flow from Rules, Regulations and statutory provisions. In absence of powers conferred by the statutory provisions, State or its instrumentalities cannot divest a person from his or her property or abridge or dilute the right protected by Articles 14 and 21 of the Constitution of India safeguarding life, liberty livelihood or quality of life.

96.In the present case, the release of land by order dated. 15.6.1984, thereafter cancelling the same by subsequent order dated 2.5.1986, and issuance of Government order to enter into agreement and consequential agreement entered into between the society and the LDA, that too without following the procedure contained in 1973 Act and the Land Acquisition Act, suffers from vice of arbitrariness. All has been done without conforming to any statutory provisions, Rules or Regulations. Rather, the State Government and LDA has acted in contravention of statutory provisions contained in U.P. Urban Planning and Development Act, 1973 (supra) and hence, the action suffers for want of jurisdiction. The action of State Government or the LDA is against the letter and spirit of 'Rule of law' and seems to be highly arbitrary hence violative of Article 14 of the Constitution.

97.In (2005) 6 Supreme Court Cases 344, Salem Advocate Bar Association (II), Vs. Union of India, Hon'ble Supreme Court held that where, there is abuse of process of law or litigants suffer for no fault on their part, then court must impose costs. In a recent judgment reported in 2011 (8) SCC 249: Rameshwari Devi and others. Vs. Nirmala Devi and others, Hon'ble Suprme Court held that, with regard to imposition of costs, courts have to take into consideration the pragmatic realities and should be realistic with regard to plight of litigants in contesting the litigation before different courts. Courts have to broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses and factors under which a party has been compelled to contest a case in different courts. In the case of Rameshwari Devi (supra), litigant had contested for about four decades, the case filed in different courts. Their lordships awarded costs of rupees two lakhs in addition to Rs.75,000.00 award by the High Court, while dismissing the appeal with costs, to reproduce relevant paras 54, 55 and 56 as under:-

"54. While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

55.The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.

56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. The appellants are directed to pay the costs imposed by this court along with the costs imposed by the High Court to the respondents within six weeks from today."

98.In the present case, the petitioners/allottees are fighting for their rights since more than 25 years and have suffered not only financial loss but mental pain and agony and failed to settle themselves by constructing their house over the plot in question, for more than 25 years . Hence, the petitioner Ganesh Prasad seems to be entitled for exemplary costs, apart from interest on the amount deposited to L.D.A., after the allotment of plot.

99.Admittedly, the petitioner Ganesh Prasad has deposited the entire cost of plot in the year 1984. The entire cost deposited by the petitioner, is lying with the L.D.A. On the one hand, the petitioner has suffered mental pain, agony and financial loss and could not get the possession of plot to construct his own house in the city of Lucknow, on the other, from the money deposited by the petitioner Ganesh Prasad, the L.D.A. Invested the amount in its business. It is the instance of unjust enrichment. Hon'ble Supreme Court in the case reported in (2011) 8 SCC 161: Indian Council for Enviro-Legal Action. Vs. Union of India and others, has defined the "unjust enrichment as under:

"UNJUST ENRICHMENT "152. `Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

153. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance." (Schock v. Nash, A.2d, 232-33).

159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

100.Their lordships of Hon'ble Supreme court while reiterating the principle laid down in the case of Rameshwari Devi (supra), with regard to payment of cost, further ruled that it should be the concern of courts and endeavour to ensure that everyone gets just and fair treatment. Courts must take realistic approach to award compensation in order to discourage the dishonest litigation. Courts should not shirk from its responsibility not only to remove a person from wrongful possession and restore the possession to lawful owner but also be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system. No litigant can derive benefit from the mere pendency of a case in a court of law and a party cannot be allowed to take any benefit of his own wrongs, to reproduce relevant paras 161, 162, 163, and 192 as under:

"161. The terms `unjust enrichment' and `restitution' are like the two shades of green - one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.

162. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court's own process, along with time delay, to do injustice.

163. For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether.

192. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases."

101.In view of the above, since the cost of plot deposited by the petitioner Ganesh Prasad as full and final payment in the year 1984, was lying with L.D.A., and possession has not been delivered on account of abuse of power (supra), the petitioner Ganesh Prasad shall be entitled for compensation in the form of interest which is assessed at the rate of 8% per annuam with effect from 1.1.1985.

PUBLIC INTEREST VIS-A-VIS PRIVATE INTEREST

102.In modern concept, the State and its instrumentalities including the development authorities, are involved in commercial activities under the garb of welfare polity. This has involved people directly with the welfare schemes of the State to meet out the requirement in different manner like allotment of flats, plots, land, houses etc. and other public utility services. The authorities empowered to function under the statutory obligations or under the statutory schemes, are expected to serve fairly and justly to discharge their obligations. While doing so, they discharge public duties. They have to act to sub-serve the general welfare and common good and while doing so, loss may accrue to citizen. Consumer Protection Act, 1986, deals with such matters but there, cases are also piling up either because of appointment of persons lacking capabilities to discharge their obligations or loss of work culture, sense of duty and commitment to serve the society or being appointed at the fag end of life. District and State Commissioners seem to have lesser interest to meet their obligations resulting I n piling of cases/complaints.

103.But the existence of these forums in the form of District and State Consumer Forum, created another problem. The State and its instrumentalities now do not discharge their duties to secure public interest while dealing with the peoples at their end. In the case of Balbir Singh (supra), their lordships of Supreme Court have taken a note of deteriorating situation as under:

"...It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public-oriented departments gets frustrated and it erodes the credibility in the system."

104.Harassment of a common man by public authorities is social abhorring and legally impermissible. Crime and corruption thrive and prosper in the society due to lack of public resistance as well as work culture in system. Nothing is more damaging than the feeling of helplessness. The matters which require immediate attention, should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious, arbitrary or negligent exercise or non-exercise of power by the State authorities or its instrumentalities, the forum must be provided in the department itself to hear the grievances and take a decision to redress the public grievance. In a welfare State, there should be immediate attention to public grievance and in case some injury is caused, the Government and its instrumentalities should not hesitate to compensate the sufferer and punish the wrong doer.

105.The individual welfare as well as the welfare of the society should be balanced and persons should not be compelled to knock the doors of the Courts or tribunals more so, when it is cumbersome process to approach the Courts for payment of compensation subject to payment of Court fee or lawyer's fees with regard to misfeasance by public authorities.

106.Ubi jus ibi remedium does not mean only the statutory remedy in the form of tribunal or court. The Government should act upon to provide a forum for the grant of compensation or redressal of grievance within its own hierarchy of system.

107.Wade in his book Administrative Law has observed that it is to the credit of public authorities that there are simply few reported English decisions on this form of malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears to be development of law which, apart from other factors, succeeded in keeping a salutary check on the functioning in the Government or semi-Government offices by holding the officers personally responsible for their capricious or even ultra vires action resulting in injury or loss to a citizen by awarding damages against them.

108.Now, time has come when the State Government should provide a form or create the post of "Complaint Authority" in all the development, bodies and its instrumentalities to hear the public grievance/complaints and take a decision within specified period for the payment of compensation, allotment of plots, land, houses, flats etc. Such forum or authority or post may be created if necessary by amending the Uttar Pradesh Urban Planning Act, 1973 or making a provisions under the Rule or by issuing Government orders in pursuance of powers conferred by Section 41 read with 51 of the 1973 Act and other statutory provisions in force.

109.The spirit of Section 41 of the Act casts duty on the Statement to secure the public interest by issuing appropriate guidelines or taking policy decision for the effective implementation of Uttar Pradesh Urban Planning and Development Act, 1973.

It is vehemently argued by Sri H.S. Jain, learned counsel for the petitioners that the State Government often uses its power to secure individual interest for extraneous reasons. It is further submitted that the development authorities in the State of U.P., are not discharging their obligations fairly and peoples are running from pillar to post for allotment of plots and land even after depositing entire cost. Several matters are kept pending for one or the other reasons. Though the L.D.A., and alike bodies charge interest on account of delayed payment of dues but no interest or compensation is paid to allottees for inaction or delayed action on the part of the development authorities. The case in hand, affirms the submissions of the learned counsel for the petitioners. Other instances are cited but in absence of pleadings, we may not record.

110.However, keeping in view the startling revelation and plight of peoples like the present one, facing high handedness imparted by the development authorities, it shall be appropriate that to secure public interest, the Government may be directed to consider to create appropriate post or forum in development authorities, and there should be an officer having been authorised to deal with the public grievances and pay damages or compensation or take decision with regard to payment of interest in case the land or plot is not delivered immediately after deposit of cost by the allottees. Ordinarily in case after deposit of cost of plot or land, if possession is not delivered within three weeks consumers must be paid interest.

111.In a case reported in 2009 (10) SCC 374: U.P. Cooperative Federation Ltd. Vs. M/S. Three Circles on 10 September, 2009, Hon'ble Supreme Court has relied upon the 55th Report of Law Commission of 1973 and held that in a lengthy litigation proceeding, there is no infirmity in awarding interest on costs while awarding damages for wrongful retention of money.

112.On criminal side, Section 358 and 359 of Criminal Procedure Code of 1973 (In short CrPC), empowers the Magistrates to award compensation to persons groundlessly arrested and pay cost in non-cognizable cases.

113.Section 357-A incorporated in CrPC, by Amending Act No.5 of 2008, commands every State Government in coordination with Central Government to prepare scheme for providing fund for purpose of compensation to victim or his dependent, who suffered loss and injury as a result of crime and required rehabilitation.

114.Analogy may be drawn and Government should prepare scheme or make obligation statutory to compensate citizen suffered because of loss and injury caused on account of misfeasance in public office.

115.In the case of Guruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others reported in (2003) 7 SCC 546, the Hon'ble Supreme Court observed as follows:

However, in an appropriate case, although the petitioner might have moved a court in his private interest and for Redressal of personal grievances, the court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil Vs. Dr. mahest Madhav Gosavi).

116.This view was further reiterated by the Hon'ble Supreme Court in (2005) 5 SCC 298, Ashok Lanka and another vs. Rishi Dixit and others, relevant paragraph 42 of which is being quoted below:

"Furthermore it is well settled that even in a case where a petitioner might have moved the Court in his private interest and for redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice (see Guruyayoo Devaswom Managing Committee v. C.K. Rajan, SCC para 50 and Prahlad Singh versus Col. Sukhdev Singh (1987) 1 SCC 727)."

The same view (supra) was again reiterated by Hon'ble Supreme Court in AIR 2003 SC 4531, General Manager, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. versus Satrughna Nishad.

117.Again similar matter cropped up for consideration before this Court in 2006 (4) A.D.J. 106 (All.) (Full Bench), Suo Moto Action Taken by the Court Versus I.C.I.CI. Bank Ltd. Allahabad and others. The Division Bench of this Court dealing with the habeas corpus petition framed certain issues of public importance involved in the case and referred the matter to Hon. The Chief Justice to register as P.I.L. to be decided by the appropriate court. The Chief Justice, Allahabad High Court constituted a Full Bench considering the case of Ashok Lanka and another (Supra). The Full Bench opined that in a matter the Court, while exercising power conferred under Article 226 of the Constitution of India with regard to private dispute, has got ample power to take suo-moto decision with regard to public interest and it shall not change the nature of the writ petition.

118.Thus, in view of the law laid down by the Honble Supreme Court in the case of Gurvayur devasam managing committee (supra) and ICCI Ban Ltd. Alld. And other and Ashok Lanka Supra, in a case involving private dispute Court may pass appropriate orders to secure public interest.

119.Bruteness or animal instinct in a man in case not controlled by required meditation practice, culture and love for rule of law with emotional attachment to the country and feeling of nationalism, a person always deviates from right path. "Man may be little lower than the angels, he has not yet shaken off the brute and the brute within is apt to break loose on occasions.

120.To curb and control that brute and to prevent the degeneration of society into a slate of tooth and claw, we need the rule of law. We also need the rule of law for punishing all deviations and lapses from the code of conduct and standards of behaviour which the community, speaking through its representatives, has prescribed as the law of the land. Being human, disputes are bound to arise amongst us. For the settlement of those disputes, we need guidelines in the form of laws, forums to redress the wrongs in the form of courts, tribunals and advisers who could guide us in the affairs of law, who could represent us in the court of law and in whom we could repose our confidence".

121.Keeping in view the allegations of rampant abuse of powers by the development authorities in the State of U.P., and the suffering which the common people are facing on account of inaction or over-action on the part of the development authorities, or other authorities dealing with public interest, it shall be appropriate for the State Government to consider for creation of a post to deal with the public grievance/complaints in the matter relating to allotment of land and plots and other disputes for the payment of compensation in respective department and development authorities. Alternatively, in the development authorities including the LDA, authorise or appoint an officer to deal with the public grievance and take effective decision for payment of interest or compensation as the case may be, in case allottees suffer because of inaction or arbitrary exercise of power at the behest of development authorities within specified period. The Government may also consider to make appropriate amendment in the Uttar Pradesh Urban Planning and Development Act, 1973 for the purpose to deal with the subject keeping in view the constitutional mandate and principle governing welfare State.

122.The gradual increase of public lynching, demonstrations on road, processions and agitations against the corruption, are because of inaction on the part of Governments to redress public grievance within own hierarchy of system. The plight of common people, in the present 'governance' may be expressed from a couplet of Ghalib, to quote:-

"My grievous tale to you is but a story;

The stars weep tears of blood to hear its told.

[English translation] ORDER

123.In view of the above, the writ petition deserves to be allowed. However, since the petitioner No.2 and 3 Ramesh Chandra Agrawal and Ravind Bahadur Singh have accepted the offer of the LDA and occupies the alternative plots, the writ petition to that extent, becomes infructuous. They are not entitled for any relief from this Court. The writ petition with regard to petitioner No.1 Ganesh Prasad, subject to the observations made in the body of this judgment, deserves to be allowed and is allowed in the following manner:-

(1)A writ in the nature of certiorari is issued quashing the orders, decisions or actions of the respondents with regard to Plot No.6-E, situated in Aliganj, Housing Scheme, Lucknow with consequential benefits with costs quantified to Rs.2,00,000.00 (two lakhs), which shall be deposited in this Court within a period of two months by the Lucknow Development Authority, out of which, the petitioner may withdraw 50% amount and rest 50% amount shall be remitted to Mediation and Conciliation Centre, High Court, Lucknow Bench Lucknow. It shall be open for the State Government/Lucknow Development Authority, Lucknow to recover the cost and the interest, by holding an inquiry from the person because of whose fault, the petitioner has suffered. In the event of failure to deposit cost, it shall be recovered as arrears of land revenue by the District Magistrate, Lucknow expeditiously say, within three months.

The petitioner Ganesh Prasad shall also be entitled for interest at the rate of 8% from the Lucknow Development Authority with effect from 1.1.1985 till actual payment is made. We direct the Lucknow Development Authority to pay interest within three months to the petitioner Ganesh Prasad. It shall not debar the petitioner Ganesh Prasad to approach for further compensation and claim other relief before appropriate forum in accordance with law.

(2)A writ in the nature of mandamus is issued commanding Lucknow Development authority Lucknow to consider and execute the sale-deed of Plot No.6-E, situated in Aliganj, Housing Scheme, Lucknow, in favour of the petitioner Ganesh Prasad, and deliver the possession subject to fulfilment of necessary conditions in accordance with Rules, expeditiously say within three months. The Lucknow Development Authority shall inform the petitioner Ganesh Prasad within two weeks about the required conditions which he has to fulfil for execution of sale-deed and delivery of possession.

Since the intervener prima facie seems to have suffered for no fault, she shall be entitled for alternative plot from Lucknow Development Authority/Society in view of the judgment of Hon'ble Supreme Court in the case of Hira Tikkoo (supra) and Balbir Singh (supra) and decision be taken expeditiously with regard to it expeditiously say, within three months.

(3)A writ in the nature of mandamus is issued commanding the State Government/Principal Secretary, Urban Planning, Government of U.P., to consider to create a statutory post or authorise an officer in the Development Authorities of State of U.P., and other departments to decide or adjudicate the complaints with regard to public grievance/misfeasance in public office in the matter of allotments of lands or plots, payment of interest and compensation and other disputes, etc., within specified period. The decision given by the Officer/authority so authorised, should be final and binding on the departments.

(4)Subject to aforesaid directions and orders, the writ petitions are allowed.

(5)The Registry shall send a copy of judgment to the Principal Secretary, Urban Planning, Government of U.P. and Vice-Chairman, L.D.A., for compliance in the light of observations made in the body of present judgment. Let the compliance report be submitted within four months. The Registry to take follow up action.

[Justice Virendra Kumar Dixit] [Justice Devi Prasad Singh] Order Date :- 21.10.2011 Rajneesh AR-PS)