Reserved on 23.10.2019 Delivered on 27.11.2019 Case :- WRIT - C No. - 49104 of 2017 Petitioner :- New Okhla Industries Development Authority Thru C.E.O.
Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Aditya Bhushan Singhal Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Pramod Kumar Pandey,Sanjay Kumar Om
Hon'ble Saral Srivastava,J.
1. Heard Sri Aditya Bhushan Singhal, learned counsel for the petitioner, Sri Shashi Nandan, learned Senior Counsel assisted by Sri Sanjay Kumar Om, learned counsel for the respondent nos.5 and 6 and Sri Rajesh Kumar, learned Standing Counsel for the State.
2. The New Okhla Industries Development (hereinafter referred to as ‘NOIDA’) has preferred the present writ petition challenging the order dated 25.05.2016 passed by the Commissioner, Meerut Region, Meerut in Revision No. 41 of 2015-16 (Chaman and others Vs. District Gautam Buddh Nagar NOIDA Development Authority and Others) and orders dated 16.05.2015 and 06.08.2014 passed by Sub Divisional Magistrate, Dadri District Gautam Budh Nagar-respondent no.3 in Case No.92/2013-14 (Chandan and others Vs. State of U.P. and Others) in a proceeding under Section 143 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,1950 (hereinafter referred to as ‘U.P.Z.A.& L.R. Act).
3. The brief facts of the case are that respondent nos.4, 5 and 6 (hereinafter referred to as ‘contesting respondents’) filed an application under Section 143 of the U.P.Z.A.& L.R. Act before the respondent no.3 praying that Khata No.87 Khasra No.18 area 43-7-5 situate at village Sorkha Jahidabad, Pargana and Tehsil Dadri, District Gautam Budh Nagar be declared as abadi land.
4. The said application was preferred by the contesting respondents mainly on the ground that they are owner and in possession of Khata No.87 Khasra No.18 area 43-7-5, and there exists 25 teen shade rooms, 8 toilets, 10 bathrooms, 4 faucets and the said plot is being used as abadi. It is also stated in the application that the said land is not being used for a purpose connected with agriculture, horticulture and animal husbandry, and as such revenue upon the said land be waived and land be declared as abadi.
5. On the application of contesting respondents, respondent no.3 sought a report from the Nayab Tehsildar (Dakshini), Dadri, District Gautam Buddh Nagar under Rule 135 of U.P. Zamndari Abolition & Land Reforms Rules, 1952 (hereinafter referred to as ‘U.P.Z.A.& L.R. Rules') with respect to the use of land. The Nayab Tehsildar submitted a report that two dozens rooms, 8 toilets,10 bathrooms have been constructed over the said plot for dwelling of labours, and that the plot is surrounded by flats, and residential activities are being carried on around the plot. The respondent no.3 after obtaining report from the Nayab Tehsildar, registered a case which was numbered as Case No. 92/2013-14 (Chaman and others Vs. District Gautam Buddh Nagar NOIDA Development Authority and Others) and issued notices to all the parties.
6. The respondent no.3 by order dated 06.08.014 allowed the application of contesting respondents against the petitioner by recording a finding that despite the petitioner having been given ample opportunity to file objections, they did not file it. The respondent no.3 after hearing counsel for the petitioner and Government Advocate Revenue, Gutam Buddh Nagar for the State held that no agriculture, horticulture or animal husbandry activity is being carried on the aforesaid land, and if the land is declared as abadi there would be no loss of revenue to the state as it would fetch more revenue after being declared as abadi. The respondent no.3 has given elaborate reason in its order in coming to the conclusion as to how the land would fetch more revenue if it is declared as abadi land.
7. It appears that the petitioner, thereafter, filed an application on 06.01.2015 in case No.92/2013-14 for recall of the order dated 06.08.2014. In the recall application, petitioner stated that the order of respondent no.3 dated 06.08.2014 is exparte order as petitioner was not served with any notice due to which it could not file any objection to the application under Section 143 of U.P.Z.A.& L.R. Act. The other ground stated in the said application was that since the land in question is situated within the notified area of the NOIDA, therefore, change in user of land cannot be done without the permission of the petitioner and application under Section 143 of U.P.Z.A.& L.R. Act is barred by Section 9 and 10 of the U.P. Industrial Development Act 1976 (hereinafter referred to as ‘Act, 1976’). The aforesaid application was allowed on 07.04.2015 by respondent no.3. The order of respondent no.3 dated 07.04.2015 reads as under:-
"आज पत्रावली प्रस्तुत. पुनस्थायी को सुना. वादी पक्ष हािज़िर नहीं है. एक पक्षीय आदेश िदनांक ०६.०८.२०१४ िनरस्त िकया जाता है. पत्रावली वास्ते साक्ष्य पनः स्थाई हेतु िदनांक २१.०४.२०१५ को पेश हो.”
8. The record transpires that contesting respondents, thereafter, preferred an application in case No. 92/2013-14 to recall the order dated 07.04.2015 and to restore the order dated 06.08.2014.
9. The respondent no.3 by order dated 16.5.2015 set aside the order dated 07.04.2015 holding that the order dated 06.08.2014 was passed after giving proper and adequate opportunity to the petitioner to submit its objections and evidence and after hearing all the parties, and accordingly, the respondent no.3 rejected the recall application of the petitioner dated 06.01.2015.
10. The petitioner, thereafter, filed another application on 19.06.2015 in the aforesaid Case No. 92/2013-14 for recall of the order dated 16.05.2015 on the ground that the said order was ex-parte as the petitioner on the date fixed in the recall application could not appear due to the strike by the Bar Association Dadri. It further stated that the finding of respondent no.3 in the order dated 16.05.2015 that the order dated 06.08.2014 was passed after giving proper notice and due opportunity to the petitioner is incorrect and further the application under Section 143 of U.P.Z.A.& L.R. Act is barred by provisions of Sections 9 and 10 of the Act, 1976 as change in the nature of land could be done only by following the procedure prescribed under Sections 9 and 10 of the Act, 1976.
11. The respondent no.3 allowed the aforesaid application of the petitioner by order dated 08.02.2016 and set aside the order dated 07.04.2015 holding that it was an exparte order. The respondent no.3 by the said order also restored the recall application dated 06.01.2015.
12. The contesting respondents feeling aggrieved by the order of respondent no.3 dated 08.02.2016 preferred Revision No.41/2015-16 (Chaman and others Vs. District Gautam Buddh Nagar NOIDA Development Authority and Others) under Section 333 of U.P.Z.A.& L.R. Act before the Additional Commissioner Meerut Region, Meerut which was allowed by the revisional court by order dated 25.05.2016 after noticing the fact that the order dated 06.08.2014 was passed after hearing all the concerned parties including petitioner.
13. In the counter affidavit filed by the contesting respondents, it is averred that the notices were issued by respondent no.3 to the petitioner and all the concerned, and in fact, counsel for the petitioner had appeared and contested the claim of the petitioner on the ground that in case the land in dispute is changed from agriculture, horticulture or animal husbandry, the same will affect the development of the petitioner. The contesting respondents further pleaded that the order dated 06.08.2014 has been implemented inasmuch as pursuant to the said order, District Magistrate Gautam Buddh Nagar vide order dated 31.07.2017 has considered the aforesaid land as abadi land and notified the same under Rule 4 of the U.P. Stamp (Valuation of Property) Rules, 1997. The District Magistrate has notified the circle rate of village Sorakha Jahidabad which include the aforesaid plot.
14. The petitioner filed rejoinder affidavit to the aforesaid counter affidavit denying the averments of the counter affidavit.
15. Learned counsel for the petitioner has contended that the revisional court has incorrectly proceeded to hold that the application dated 06.01.2015 was rejected by the respondent no.3 by order dated 16.05.2015 after hearing all the concerned parties whereas the correct fact is that the application dated 06.01.2015 was filed by the petitioner to recall the order dated 06.08.2014 which was allowed by the respondent no.3 on 07.04.2015. Thus, the recitation of incorrect facts in the order leads to the conclusion that the order of the revisional court is without application of mind and without appreciation of correct facts on record. Hence, revisional court has committed material irregularity apparent on the face of the record in allowing the revision of the contesting respondents.
16. He further contends that the order dated 08.02.2016 allowing the restoration application of the petitioner by respondent no.3 was based upon correct facts as the respondent no.3 after being satisfied that the order dated 06.08.2014 was an ex-parte order allowed the restoration application of the petitioner. Thus, the submission is that as the order dated 06.08.2014 was an ex-parte order without hearing the petitioner, the revisional court has committed manifest illegality in allowing the revision of the contesting respondents by setting aside the order dated 08.02.2016 and dismissing the restoration application of the petitioner.
17. Per contra, learned Senior Advocate contends that the order dated 06.08.2014 of the respondent no.3 allowing the application of the contesting respondents under Section 143 of U.P.Z.A. & L.R. Act clearly recites that the notices were issued to the petitioner, and ample opportunity was given to the petitioner to file objections, and when the petitioner did not file objections, respondent no.3 closed the opportunity of petitioner to file objections. He further submits that the aforesaid order clearly reflects that counsel for the petitioner had appeared before the respondent no.3 and had argued the matter in opposition to the application of the contesting respondents. The respondent no.3 rejected the submissions of the counsel for the petitioner as it did not stand to merit and allowed the application of the petitioner as in his opinion all the ingredients which are essential for declaring the land to be abadi are present.
18. The further submission of learned Senior Counsel is that as the fact recorded in the order dated 06.08.2014 of the respondent no.3 that the counsel for the petitioner appeared during the course of argument and submitted his arguments in objection to the application of the contesting respondents has not been denied or disputed by the petitioner in the affidavit filed in support of recall application dated 06.01.2015, therefore, petitioner is guilty of filing false affidavit in support of the recall application by making incorrect and false assertion in paragraph no.2 of the affidavit stating that the petitioner was not served with any notice or summons of the aforesaid case, and in case any service of notice is recorded in the court proceedings, the same was done in collusion with contesting respondents in order to prejudice the rights of the petitioner.
19. He further contends that there is no pleading in the writ that if the orders impugned are allowed to stand, it would result in prejudice to petitioner or would cause serious injury to the interest of the petitioner and, therefore, narration of few wrong facts in the revisional court’s order would not be a ground to interfere in the order of the revisional court by this Court in exercise of its power under Article 226 of the Constitution of India, more so when the petitioner, who is statutory authority, is guilty of making false assertions in the affidavit filed in support of the recall application.
20. I have considered the rival submissions of the parties and perused the record.
21. The respondent no 3 in the order dated 06.08.2014 recorded a categorical finding that after obtaining the report of Nayab Tehsildar as required under rule 135 of U.P.Z.A.& L.R. Rules, the case was registered and notices were issued to all the parties and when petitioner did not file objections despite being granted ample opportunity to file it, he closed the opportunity of the petitioner to file objections. It is also manifest from the said order that counsel for the petitioner had appeared and placed his arguments contending that in case the land in question is declared abadi, it would hamper the development of the authority. The respondent no.3 did not find any merit in the argument of counsel for the petitioner and allowed the application of the contesting respondents by recording that as the land in question is not being used for agriculture, horticulture or animal husbandry purposes, therefore, the land can be declared as abadi under Section 143 of the U.P.Z.A. & L.R. Act.
22. In the affidavit filed in support of the recall applications dated 06.01.2015 and the second recall application dated 19.06.2015, petitioner has not denied or disputed correctness of the recitation of the fact in the order dated 06.08.2104 of the respondent no.3 that counsel for the petitioner was heard by it nor the affidavit and recall applications contain any assertion that no counsel was engaged or authorized by it to contest the said application. Hence, in view of the said fact, the Court finds that the assertions made in paragraph 2 of the affidavit filed in support of the recall application dated 06.01.2015 are false and incorrect.
23. Though, the order dated 25.05.2016 of the revisional court incorrectly recites that the application dated 06.01.2015 was decided by order dated 16.05.2015, but mere assertion of wrong fact in the order cannot make an order illegal, more so, when the revisional court found that it is established from the record that respondent no.3 in passing the order dated 06.08.2014 gave ample opportunity to the petitioner to file objections and when petitioner did not file any objection, it closed the opportunity of petitioner to file objections and, thereafter, it proceeded to decide the case and after hearing the counsel for the petitioner passed the order declaring the plot in question abadi. Further, it is not out of place to mention that the petitioner even in the writ petition has not denied the fact that it did not authorize any advocate to appear and contest the application of contesting respondents before respondent no.3, therefore, it is crystal clear that petitioner was afforded due opportunity to file objections, and that petitioner was heard through counsel, therefore, there was no violation of principals of natural justice.
24. Hence, even if there is any wrong assertion of fact in the order of the revisional court, it would not entitle the petitioner to any relief for the reason firstly; the petitioner has not come up with clean hands in filing the recall application as false assertion contrary to the record has been made by the petitioner in the paragraph 2 of the affidavit in support of the recall application date 06.01.2015. Secondly, the petitioner has not pleaded in the writ petition that the order of the respondent no.3 allowing application of the contesting respondent under Section 143 of U.P.Z.A.& L.R. Act as well as the order of revisional court, if allowed to stand, shall result in serious prejudice to the rights of petitioner or would cause serious injuries to the rights of the petitioner. In this regard, it would be apt to refer paragraph 6 of the judgement of Apex Court in the case of Rajendra Singh Vs. State of M.P. & Others (1996) 5 SCC 460 which has been extracted herein below:-
“6. It has been held by a Constitution Bench of this Court in Har Shankar & Other etc. etc. v. Deputy Excise and Taxation Commissioner and Others etc. that "(T)he writ jurisdiction of High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred."
….......... While examining complaints of violation of statutory rules and conditions, it must be remembered that violation of each and every provision does not furnish a ground or the Court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of public cannot be waived by him. In other wards, wherever a complaint of violation of a mandatory provision is made, the Court should enquire- in whose interest is the provision conceived. If it is not conceived in the interest of public, question of waiver and/or acquiescence may arise - subject, of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Court State Bank of Patiala Vs. S.K. Sharma 1996 (3) S.C.C 364 and in Krishan Lal vs. State of Jammu and Kashmir 1994 (4) S.C.C. 422 on the basis of a large number of decision on the subject. Though the said decisions were rendered with reference to the statutory Rules and statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involving government servants and employees of statutory corporation, the principles adumbrated therein are of general application. It is necessary to keep these considerations in mind while deciding whether any interference is called for by the Court whether under Article 226 or in a suit. The function of the Court is not a mechanical on. It is always a considered course of action.”
25. It is also urged by the learned counsel for the petitioner that respondent no.3 while passing the order declaring the land in question to be abadi ought to have considered Sections 8 and 9 of the Act, 1976.
26. To appreciate the aforesaid submission, it would be pertinent to consider Section 143 of U.P.Z.A. & L.R. Act, 1950, Rule 135 of U.P.Z.A. & L.R. Rules, 1952 and also Section 8 & 9 of the Act, 1976.
27. Section 143(1) of U.P.Z.A. & L.R. Act, 1950 and Rule 135 of U.P.Z.A. & L.R. Rules, 1952 provides that where a bhumidhar with transferable rights uses his holding or part thereof for a purpose not connected with agriculture, horticulture and animal husbandry which includes pisciculture and poultry farming, the Assistant Collector In- Charge of the Sub-Division may suo motu or on an application, after making such enquiry as may be prescribed, make a declaration for use of holding for industrial or residential purpose. Section 143 (2) & (3) provides for the consequences which would flow upon the grant of declaration under Section 143(1) of U.P.Z.A. & L.R. Act.
28. Rule 135 (1) of U.P.Z.A. & L.R. Rules provides for the procedure to be followed for declaring the land to be abadi land. The said rule contemplates an enquiry by the Assistant Collector in-charge through the Tehsildar or any other officer not below the rank of a Supervisor Kannongo for the purpose of satisfying himself that the bhumidhar's holding or part thereof is really being used for a purpose not connected with agriculture, horticulture and animal husbandry which includes pisciculture and poultry farming. The enquiry is to be made on the spot and the enquiry officer shall, alongwith with his report, furnish information in the prescribed pro-forma. Under Sub Rule (3) of Rule 135, where the land is not being used for a purpose connected with agriculture, horticulture and animal husbandry which includes pisciculture and poultry farming the Assistant Collector may make a declaration to that effect. Under Sub Rule (5) of Rule 135 the Assistant Collector in-charge shall get prepared a map and place it on record showing in different colours the plot put to use for purposes connected with agriculture, horticulture and animal husbandry which includes pisciculture and poultry farming and for the purposes not so connected. He shall also apportion the land revenue payable for each part of holding. Under Sub Rule (6) of Rule 135, the cost of demarcation shall be realised from the Bhumidhar concerned unless it has been deposited during the course of proceeding.
29. Now, it would be useful to have a glance of Sections 8 and 9 of the Act, 1976 which are extracted hereinbelow:-
“8. Power of issue directions in respect of erection of building. - (1) For the purposes of proper planning and development of the industrial development area, the Authority may issue such directions as it may consider necessary, regarding-
(a) architectural features of the elevation or frontage of any building,
(b) the alignment of buildings on, any site.
(c) the restrictions and conditions in regard to open spaces to be maintained in and around buildings and height and character of buildings,
(d) the number of residential buildings that may be erected on any site,
(e) regulation of erection of shops, workshops, warehouses, factories or buildings,
(f) maintenance of height and position of walls, fences, hedges or any other structure or architecture constructions,
(g) maintenance of amenities,
(h) restriction of use of any site for a purpose other than for which it has been allocated,
(i) the means to be provided for proper-
(i) drainage of waste water,
(ii) disposal of industrial waste, and
(iii) disposal of town refuse.
(2) Every transferee shall comply with the directions issued under subsection (1) and shall as expeditiously as possible erect any building or take such other steps as may be necessary to comply with such directions.
9. Ban on erection of buildings in contravention of regulations. - (1) No person shall erect or occupy any building in the industrial development area in contravention of any building regulation made under sub-section (2).
(2) The Authority may by notification and with the prior approval of the State Government, make regulations to regulate the erection of buildings and such regulations may provide for all or any of the following matters, namely,-
(a) the materials to be used for external and partition walls, roofs, floors and other parts of a building and their position or location or the method of construction;
(b) lay out plan of the building whether industrial, commercial or residential;
(c) the height and slope of the roofs and floors of any building which is intended to be used for residential or cooking purposes;
(d) the ventilation in, or the space to be left about any building or part thereof to secure circulation of air or for the prevention of fire;
(e) the number and height of the storeys of any building;
(f) the means to be provided for the ingress and egress to and from any buildings;
(g) the minimum dimensions of rooms intended for use as living rooms or sleeping rooms and the provision of ventilation;
(h) any other matter in furtherance of the proper regulation of erection, completion and occupation of buildings; and
(i) the certificates necessary and incidental to the submission of plans, amended plans and completion reports.”
30. Section 8 of the Act, 1976 confers power upon the NOIDA authority to issue direction in respect of erection of building. The authority may issue such direction as it may deem necessary with respect to subjects mentioned in 8(1) (a) to (i) of the Act, 1976. Section 8 (2) further mandates upon the transferee to comply with the direction issued by the authority under Section 8(1) of the Act, 1976.
31. Section 9 deals with the ban on erection of buildings in contravention of regulations. Section 9(1) provides that no person shall erect or occupy any building in the industrial development area in contravention of any building regulation made under subsection (2). Section 9(2) further confers power upon the authority to make regulation with prior approval of the State Government for all or any of the matters mentioned in Section 9(2) (a) to (i) of the Act, 1976.
32. A bare reading of Sections 8 and 9 of the Act, 1976 reveals that it does not contemplate any situation wherein the authority is empowered to assume the jurisdiction vested with the S.D.M. under Section 143(1) of the Act, 1950 to declare a land abadi. The aforesaid two sections operates in totally different field and does not confer any power upon the NOIDA Authority to lay down any guidelines or frame any regulation to regulate power of S.D.M. under Section 143(1) of the Act, 1950 for declaring a land to be abadi land. The Act, 1950 is a complete code providing procedure for converting an agricultural land into abadi land whereas Act, 1976 operates in different field which mainly deals with development and constructions over a land which comes within the domain of NOIDA authority.
33. Thus, the submission of learned counsel for the respondents that the S.D.M. while declaring the land to be abadi is under obligation to consider Sections 8 & 9 of the Act, 1976 does not stand to merit and is rejected.
34. In the instant case, learned counsel for the petitioner could not point out anything from the record that procedure contemplated under the Act, 1950 has not been followed by the authority in declaring the land in question as abadi. Thus, there is no infirmity or illegality in the order of respondent no.3 declaring the land in question to be abadi.
35. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed. There shall be no order as to costs.
Order Date :- 27.11.2019 Sattyarth