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Shivalik Sahkari Avas Samiti vs State Of U.P. And Ors.

High Court Of Judicature at Allahabad|23 December, 2004

JUDGMENT / ORDER

JUDGMENT
1. The present writ petition has been filed questioning the legality of the order, dated 11.10.2004, Annexure-11 to the writ petition, on the ground that the reasons given for rejecting the representation suffer from manifest error of law inasmuch as the respondent-State Government has failed to take into consideration the provisions of Sections 6 and 12 of the U.P. Industrial Area Development Act, 1976 and Section 41 of the U.P. Urban Planning and Development Act, 1973.
2. We have heard Sri Rakesh Pandey, learned Counsel for the petitioner, learned Standing Counsel for respondent Nos. 1, 2 and 3 and Sri Anurag Khanna, learned Counsel for respondent No. 4.
3. The matter was taken up by us on 2.12.2004 on which date a request was made by the learned Standing Counsel for receiving instructions and then the matter was taken up on 8.12.2004, 10.12.2004 and finally heard on 13.12.2004 with the consent of the learned Counsel for the parties.
4. Having heard the learned Counsel for the parties, we are of the opinion that the present matter can be disposed of on a very short question as to whether non-consideration of the relevant provisions as referred to herein above vitiate the order, or not.
5. Learned Counsel for the petitioner has urged that the representation of the petitioner was to be considered in the light of the judgment of this Court dated 23.4.2004 and that the petitioner was entitled to get the land and constructions exempted to the extent as indicated in the Government order dated 22.10.2002 and the decisions rendered by the Apex Court in this regard.
6. In reply to the submissions of the learned Counsel for the petitioner, Sri Anurag Khanna, learned Counsel for the respondent has urged that the impugned order clearly records that the petitioner is not entitled to any such benefit inasmuch as the benefit is not available to the petitioner in view of Khodaiji Committee report as the petitioner's society was constituted in the year 1982. Learned Counsel for the respondent has further urged that the State Government has, while disposing of the representation, taken a decision to the effect that the Government order dated 22.10.2002 is not applicable inasmuch as the said Government order applies only with regard to the development authority constituted under the U.P. Urban Planning Development Act, 1973 and not to the Industrial Development Authority under the 1976 Act. He, therefore, submits that no ground for interference is made out with the impugned order. Sri Khanna has placed reliance on the decision of the Apex Court rendered in Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd. and Anr. v. New Okhla Industrial Development Authority and Ors., (1988) 1 SCC 63, with particular reference to paragraph 12 of the said decision.
7. Upon having examined the rival contentions, we find it necessary to quote Sections 6 and 12 of the U.P. Industrial Area Development Act, 1976, herein under :
"6. Functions of the authority.--(1) The object of the authority shall bed to secure the planned development of the industrial development areas.
(2) Without prejudice to the generality of the objects of the authority, the authority shall perform the following functions--
(a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purpose of this Act;
(b) to prepare a plan for the development of the industrial development area;
(c) to demarcate and develop sites for industrial, commercial and residential purposes according to the plan;
(d) to provide infrastructure for industrial, commercial and residential purposes;
(e) to provide amenities;
(f) to allocate and transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes;
(g) to regulate the erection of buildings and setting up of industries; and
(h) to lay down the purpose for which a particular site or plot of land shall be used, namely for industrial or commercial or residential purpose or any other specified purpose in such area."
"12. Applications of certain provisions of President's Act XI of 1973.--The provisions of Chapter VII and Sections 30, 32, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 51, 53 and 58 of the Uttar Pradesh Urban Planning and Development Act, 1973, as re-enacted and modified by the Uttar Pradesh President's Act (Re-enactment with Modifications) Act, 1974, shall mutatis mutandis apply to the authority with adaptation that--
(a) any reference to the aforesaid Act shall be deemed to be a reference to this Act;
(b) any reference to the authority constituted under the aforesaid Act shall be deemed to be a reference to the authority constituted under this Act; and
(c) any reference to the Vice-Chairman of the authority shall be deemed to be a reference to the Chief Executive Officer of the Authority."
8. A perusal of Section 6 (2) (c) and (d) would indicate that the industrial area constituted under 1976 Act has the authority to secure the planned development of an area for "industrial, commercial and residential" purpose. A perusal of Section 12 indicates the application of Section 41 of the U.P. Urban Planning and Development Act, 1973, which is quoted herein below :
"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 function 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 in 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 in question in any Court."
9. A perusal of the aforesaid sections and a conjoint reading thereof clearly indicates that the State Government has power to control such authorities and has also power to issue directions.
10. The question, therefore, is as to whether the Government order, dated 22.10.2002, is applicable to the respondent No. 4 authority, or not, in the light of the aforesaid provisions.
11. A perusal of the impugned order indicates that the State Government, while passing the impugned order, has not at all considered the impact of the applicability of the aforesaid sections. The State Government has simply recorded its conclusion that the Government order is not at all applicable without referring to the aforesaid provisions. In view of the aforesaid situation the impugned order is vitiated and, therefore, the matter deserves to be remitted back to the State Government for consideration of the matter afresh in the light of the observations made herein.
12. The contention of the learned Counsel for the respondent, on the basis of paragraph 12 of the decision in Kendriya Karamchari Sahkari case (supra), cannot be accepted, inasmuch as in the instant case the Government order is not qualified by the words "as far as may be" as compared to the Government order which was in question in the aforesaid case before the Apex Court. Thus, there is a clear distinction between the Government order which was being considered by the Apex Court in Kendriya Karamchari Sahkari case (supra) and the present Government order. Hence, the aforesaid argument of the learned Counsel for the respondent cannot be accepted. It was on account of the specific use of the words "as far as may be" that the Apex Court took a view that the directions contained in the Government; order in question therein were not mandatory.
13. Further, the impugned order in the present case has also not taken into account as to whether the Government order, dated 22.10.2002, is a direction issued by the State Government as contemplated under Section 12 of the 1976 Act read with Section 41 of the U.P. Urban Planning and Development Act, or not.
14. There is yet another aspect which has also to be taken into consideration by the State Government while faking a decision. The provisions under which, exemption of a land acquired under the Land Acquisition Act can be granted, in Section 48 of the Land Acquisition Act. The land can be excluded from acquisition proceeding by taking resort to the notification in the official Gazette under Section 48 which provides that such an exemption can be made where the possession of the land has not been taken over. In view of the aforesaid position, no instructions issued by the State Government either in the shape of a Government order, or any other executive instructions can be pressed into service for exempting the land without taking recourse to Section 48. Further, once a sanctioned plan for planned development has been finalised, the same amounts to enforcement of statutory provisions and which cannot be deviated, or modified with the aid of Executive Instructions. The aforesaid proposition needs to be examined by the State Government while deciding such an issue.
15. A perusal of the facts and circumstances of the case as well as the law applicable in the matter, it is clearly evident that the impugned order does not taken into consideration the factors enumerated herein above and in the absence of any such consideration and recording of reasons accordingly, the impugned order cannot be sustained and is liable to be set aside.
16. Accordingly, we quash the order, dated 11.10.2004, with a direction to the respondent No. 1 to reconsider the matter again in the light of the observations made herein above and also taking into account: all such relevant matters pertaining to the applicability of the Government order, dated 22.10.2002, in the case of the petitioner.
17. The writ petition is, accordingly allowed. The impugned order, dated 11.10.2004, is quashed with a direction to the respondent No. 1 to consider the matter afresh in the light of the observations made herein above and in accordance with law within a period of three months from the date of presentation of a certified copy of the order before him.
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Title

Shivalik Sahkari Avas Samiti vs State Of U.P. And Ors.

Court

High Court Of Judicature at Allahabad

JudgmentDate
23 December, 2004
Judges
  • R Misra
  • A Sahi