Hon'ble Prashant Kumar,J.
(Delivered by Hon'ble Prashant Kumar, J.)
1. The above writ petitions involve similar question of law and facts, therefore, they are heard together and being disposed of by this common judgement.
2. In the above writ petitions, the petitioners prayed for issuance of a writ in the nature of Certiorari for quashing the orders dated 16.03.1999 & 23.03.1999, contained in Annexures-18 series of amended writ application, (relating to petitioners Nos.2,4,5,6,7,8,9) Annexure No.I of Amendment Application No.133611, (relating to petitioner no. 11) and Annexure 4 of each writ applications bearing Writ Petition No.69517 and 69518 of 2011, (relating to petitioners of both the writ applications), whereby and where-under the respondent NOIDA had cancelled the allotment of new plots made in favour of the petitioners by way of conversion. The petitioners further prayed for issuance of a direction commanding the respondents to accept the due amount, if any, and hand over the possession of newly allotted plots to the petitioners.
3. It is worth mentioning that the petitioner no. 1 namely Shyam Narain Misra has been allowed to withdraw the writ petition filed on his behalf vide order dated 17.08.2016, whereas by the same order the writ petitions filed by the petitioners no. 3 & 10 have been dismissed as not pressed, because none had turned up to press the same on their behalf.
4. It is further worth mentioning that the respondents no. 3 to 22 were not impleaded as respondents in the original writ petition bearing Civil Misc. Writ Petition No. 11973 of 1999, but they have been wrongly impleaded as respondents in the amended writ petition. From perusal of the order-sheet it appears that vide orders dated 22.05.2012 & 11.01.2016, the impleadment applications filed by them had been disposed of with observation that no case is made out to permit the applicants to be impleaded as respondents in the writ petitions. Under the aforesaid fact and circumstance, names of respondents no. 3 to 22 are hereby struck off from cause title of the amended writ petition.
5. It is not out of place to mention here that vide order dated 17.08.2016, respondents no. 3 to 7 and 11 to 22 were not allowed to intervene in the matter, because they have not filed any application for intervention. Thus, in this writ petition, bearing Civil Misc. Writ Petition No. 11973 of 1999, we are confined to consider the cases of petitioners no. 2, 4 to 9 & 11.
6. It is relevant to mention that though petitioners of Civil Misc. Writ Petitions No. 69517 & 69518 of 1999 were wrongly impleaded as respondents no. 9 & 10 in Civil Misc. Writ Petition No. 11973 of 1999, but, since they filed separate writ petitions for the same relief, therefore, their cases also considered by us.
7. The factual matrix of the case is that the petitioners were originally allotted residential plots by the NOIDA in different sectors. Details of their plots and areas mentioned in the writ petitions. It is an admitted position that the NOIDA has a Scheme for conversion of plots. The above scheme was amended by the NOIDA vide office order no. 4070/ NOIDA/ DCED/ 92 dated 03.07.1992, which runs as follows:-
In supersession of all previous orders, conversion of residential plots/houses/flats/appartments shall be governed by the conditions as given below:
"Application for conversion (i.e. change of location) shall be entertained only from such allottees who have been allotted residential plots/houses/flats/apartments, originally by the Authority.
(1) Application for conversion of plots against house/flat/apartment or vice versa shall not be entertained.
(2) In case residential plots, only cancelled & surrendered properties shall be offered for conversion. However, this shall not be applicable for conversion of apartment/flat/house.
(3) The details of availability of properties shall be available in the office of Dy. Chief Executive Officer.
(4) In case of allotments made through cooperative housing societies, conversion may be allowed within the sector only. However, this restriction shall not be applicable in cases of allotment other than through cooperative societies.
(5) Up-to-date dues of the allotted properties for which conversion required should be cleared.
(6) All expenses pertaining to conversion such as conversion charges, location benefit charges, stamp duty, registration charges etc. shall be borne by the allottee.
(7) In case the area of converted plot is more than the area of allotted plot, then the allottee shall be required to pay the premium for additional area at prevailing rate and conversion charges in lump sum within 30 days of conversion being allowed. Additional charges, if applicable shall also be charged in addition to the above.
(8) In case of built up apartment/flat/house, difference in the prevailing cost of original allotted property and the prevailing cost of property under conversion shall be charged towards conversion charges in lump sum within 30 days of conversion being allowed.
(9) In case area under conversion is less than the area of plot originally allotted, then the amount of premium including interest having been paid by the allottee for the difference area, shall be refunded adjusted. Likewise in case prevailing cost of the apartment/flat/house under conversion is less than the original cost of apartment/flat/house originally allotted, then the difference of the amount paid including interest shall be refunded/adjusted.
(10) The facility of conversion shall be available in both pre-possession and post-possession cases.
(11) Conversion charges shall be payable within 30 days from the conversion being allowed as per details given below. ......."
8. It is also admitted by the parties that aforesaid scheme of conversion again amended by the NOIDA on 29.09.1993. Originally, the conversion was allowed only with respect to cancelled or surrendered plots, but after the amendment, unallotted plots or newly carved out plots in different sectors have also been included in the plot availability list for conversion.
9. It is stated by the petitioners that they applied for conversion of their original plots with that of other residential plots situated in other sectors. It is stated that the NOIDA, after considering their requests, had approved the conversion and allotted new plots with a direction to pay the amount mentioned in respective conversion orders. The petitioners annexed the aforesaid conversion orders in the writ petitions. It is stated that the petitioners had deposited the money through challans as demanded by the NOIDA. It is further stated that some amount still remained to be paid by some of the petitioners. It is stated that the petitioners approached the NOIDA for counter signing the challans, but NOIDA refused to do so, because of that the petitioners could not deposit balance amount. It is stated that the petitioners were repeatedly making requests to the NOIDA for accepting the deposits and handing over the possession of the newly allotted plots, but the respondents are not passing any order. Aggrieved with the same, the petitioners of Civil Misc. Writ Petition No. 11973 of 1999 had filed writ petition for a direction to the respondents to accept the amount by making endorsement on the challans and hand over the possession of newly allotted plots.
10. It is stated that during the pendency of the writ petition, the NOIDA had cancelled the allotments of new plots made in favour of the petitioners vide orders dated 16.03.1999 and 23.03.1999. Accordingly the petitioners filed amendment application and challenged the cancellation orders.
11. It then appears that a Division Bench of this Court vide order dated 09.11.2007 disposed of the writ petition bearing Civil Misc. Writ Petition No. 11973 of 1999. The operative portion of the order runs as follows:-
"The petitioners are agreeable to pay along with interest on the deposited amount, therefore, we are of the view that the writ petition can be disposed of with a direction upon the authorities to consider the case and to calculate the amount to be deposited by the petitioners and issue challan in connection thereto ignoring the delay on the basis of the observation of the Supreme Court as in the aforesaid judgment within a period of one month from the date of communication of the order. At the time of due consideration, the authorities are entitled to see whether cancellation is made only on the ground of delay or not. In case the other point or points is/are also there, they are entitled to act in accordance with law without confining themselves only on the question of delayed payment. The writ petitioners will be entitled to get certify copy of the order only after depositing deficit court fees within a period of seven days from this day leaving aside the court fees already deposited treating to be deposited for only one petitioner. However, this order will not be operative in case petitioners nos. 3, 10 and 11 who have not pressed this writ petition, therefore, no order is required in those cases.
Writ petition is, thus, disposed of. No order is passed as to costs."
12. The NOIDA challenged aforesaid order of this Court by filing a Special Leave Petition bearing no. 10678 of 2008 (Civil Appeal No. 583 of 2011). While hearing the aforesaid appeal the Hon'ble Supreme Court noticed that though the order of conversion had already been cancelled by the NOIDA and the petitioners had filed amendment application challenging the cancellation order, but no finding was given by the High Court on the legality of the cancellation orders. Accordingly, the Hon'ble Supreme Court remitted the case to this Court for fresh disposal of the writ petition after considering the pleadings and documents filed by the parties. The operative portion of the judgement of the Hon'ble Supreme Court in aforesaid civil appeal is as follows:
"It, however, appears that attention of the High Court was not invited to the amended prayer and this appears to be the reason why the High Court did not pronounce upon the legality of the orders passed for cancellation of the sanction issued by the then Chief Executive Officer for conversion of the plots and disposed of the writ petition by issuing directions to which reference has been made herein above.
In our view, without deciding the question whether orders passed by the Competent Authority for cancellation of the conversion sanctioned in favour of the respondents were contrary to any constitutional or legal provision or the rules of natural justice, the High Court was not justified in issuing a mandamus to the appellants to accept the amount of conversion and thereby facilitate allotment of plots to the respondents in Sector 44. But at the same time, we feel that the respondents should not suffer merely because the High Court did not decide the legality of the orders passed by the Competent Authority and it will be in the interest of justice to remit the matter to the High Court for fresh disposal of the writ petition.
In the result, the appeal is allowed, the impugned order is set aside and the matter is remitted to the High Court for fresh disposal of the writ petition after consideration of the pleadings and documents which have already been filed and which may be filed hereafter.
The parties shall file additional affidavits and documents within 3 months from today. Insofar as the appellants are concerned, they shall file the required affidavit alongwith all the documents which were produced before this Court and other documents which may have bearing on the decision of issues raised in the writ petition.
It will be open to either party to make a request to the High Court for early disposal of the writ petition."
13. In view of the aforesaid remand made by the Hon'ble Supreme Court, the writ petition placed before us for hearing. It is worth mentioning that after the aforesaid order of Hon'ble Supreme Court, both the parties had filed supplementary affidavits, supplementary counter affidavits, amendment application annexing various documents in support of their cases. It is also worth mentioning that the petitioners of Civil Misc. Writ Petitions No. 69517 & 69518 of 2011, who were interveners before Hon'ble Supreme Court, have filed separate writ petitions for redressal of their grievances and the said writ petitions are also tagged with previous writ petition i.e. Civil Misc. Writ Petition No. 11973 of 1999.
14. Sri Navin Sinha, learned Senior Advocate assisted by Sri Manu Khare, advocate appearing for petitioners no. 2,4,5,6,7,8 & 9 submitted that the impugned orders of cancellation are broadly based on 4 grounds i.e. (i) Conversion of residential plots allowed in an undeveloped sector. (ii) Conversion of residential plots allowed in favour of such allottee who defaulted in making payment against the originally allotted plots. (iii) No applications were filed by some of the petitioners for conversion and (iv) Conversion was allowed much in excess of the originally allotted area i.e. more than 50% in comparison to original plot area.
15. It is submitted that so far as the grounds no. 1 & 4 are concerned, the same were not mentioned in the original Scheme/Conversion Policy. It is also submitted that from perusal of the office order dated 03.07.1992 as amended by the order dated 27.09.1993, it appears that the same does not prohibit conversion (change of location) from developed sector to undeveloped sector. It is submitted that the NOIDA admitted in an affidavit filed in SLP (Civil) No. 10678 of 2008 before the Hon'ble Supreme Court that at the time of conversion in question (i.e. in the year 1994-95), the aforesaid condition for cancellation of conversion is not part of the Scheme. It is submitted by Sri Sinha, learned senior counsel appearing for the petitioners, that in that affidavit it is stated that in the year 1996 the change of plots policy was reconsidered and then the same was included. He, thus, submits that a policy which has been adopted later on, cannot become basis for cancellation of plots, which were allotted on the basis of earlier policy. It is further submitted that in the said affidavit, the NOIDA further admitted that in the year 1994-95 sector 44 was a developed sector. Accordingly, it is submitted that cancellation of conversion order on ground no. 1, is not permissible.
16. Sri Sinha, learned senior counsel submitted that cancellation of conversion on ground no. 2 is also not sustainable, because the petitioners had paid all the dues demanded by the NOIDA towards the price of their old plots. It is submitted that the NOIDA admitted in its supplementary counter affidavit that in cases of 14 allottees their plots had not been cancelled even though payments were not made by them within the stipulated time. Sri Sinha brought to our notice the list of such cases annexed by the NOIDA in its supplementary counter affidavit. Accordingly, he submits that the order of cancellation of conversion on the ground of default for non-payment of price of original plot is discriminatory, therefore, violative of Article 14 of the Constitution of India. However, he submits that aforesaid defect is curable and petitioners are ready to pay any due if legally payable.
17. It is then submitted that so far as the third ground that the petitioner Nos. 4 and 6 had not made applications for conversion is concerned, the same is misconceived and against the material available on the record. It is submitted that from bare perusal of conversion order it will be clear that all the petitioners had made requests for conversion of plots. This fact also admitted by the NOIDA in the grounds of SLP (Civil) No. 10678 of 2008, wherein it is specifically stated that the respondents (petitioners of this case) themselves had applied for conversion of their plots. Thus, it is submitted that this ground is also not available to the respondent-authority for cancelling the conversion order.
18. So far as the ground no. (iv) is concerned, it is submitted that the same is also not mentioned in the Conversion Policy dated 03.07.1992 as amended on 29.09.1993. It is submitted that from perusal of office order dated 03.07.1992 it is clear that one of the conditions for conversion is that in case the area of converted plot is more than the area of the allotted plot then the allottee shall be required to pay premium of additional area at the prevailing rate and the conversion charges in lump sum within 30 days of conversion being allowed. It is submitted that there is nothing in the entire conversion policy which prohibits conversion if the area of converted plot is much in excess of the originally allotted area i.e. more than 50% in comparison to the original plot area. Sri Sinha further brought to our notice list 3 & 4 annexed with the supplementary affidavit filed by the NOIDA and submits that in fact the NOIDA had restored the plots of other allottees whose conversion cancelled on this very ground. Accordingly, he submits that the action of the NOIDA in not restoring the newly allotted plots in favour of these petitioners is discriminatory and thus, violative of equality clause of the Constitution of India.
19. Sri Navin Sinha, learned senior counsel further submits that it is an admitted position that new plots were allotted to the petitioners by way of conversion as per the scheme of NOIDA and in terms of the demand made by the NOIDA all the petitioners deposited substantial amount with the NOIDA. Thus, a legal right accrued to them in connection with the newly allotted plots, hence, it is not open for the NOIDA to cancel the allotment of new plots without giving any opportunity of hearing to the petitioners. Therefore, the impugned orders are violative of principles of natural justice, hence, void-ab-initio.
Sri Udai Nandan, learned counsel appearing for the petitioner No. 11 has adopted all the submissions made by Sri Navin Sinha, learned Sr. Advocate.
20. On the other hand, Sri Ramendra Pratap Singh, learned counsel appearing for the NOIDA, submitted that the Hon'ble Supreme Court had observed in its order dated 27.11.2013 passed in Writ Petition (Civil) No. 150 of 1997 that 1976 Act and the rules framed thereunder do not postulate conversion of plots allotted in one category to other. Sri Singh accordingly submits that in view of aforesaid observation of the Hon'ble Supreme Court all the conversions including the conversions of plots in favour of these petitioners are illegal. Thus, it is not open for this Court, which is a Court of equity, to quash the cancellation order and allow the illegality to perpetuate.
21. On merits, Sri Singh submits that the orders of cancellation have been passed in view of the order passed by Hon'ble Supreme Court in Writ Petition (Civil) No. 150 of 1997 and also because the NOIDA on scrutiny had found that conversions were allowed in favour of the petitioners against the conversion policy. Accordingly, it is submitted that the writ petitions filed by the petitioners have no merit, therefore, same are liable to be dismissed.
22. In reply, Sri Navin Sinha, learned senior counsel appearing for the petitioners, submitted that the observation of the Hon'ble Supreme Court is not binding on these petitioners because they are not the parties in Writ Petition (Civil) No. 150 of 1997. He further submits that in fact the conversion is a mode of transfer of immovable property. He further submits that Section 7 of the U.P. Industrial Area Development Act, 1976 (for short 'the Act') gives power to all the authorities (including the NOIDA) constituted under 'the Act' to transfer land by way of sell, lease or otherwise on such terms and conditions as it may think fit to impose. Accordingly, it is submitted that the aforesaid observation of the Hon'ble Supreme Court is not applicable in the facts of this case. It is further submitted that one similarly situated person (whose plot allotted on the basis of conversion was cancelled) had filed an application and challenged the order of cancellation of conversion order before the MRTP Commission, New Delhi. The said application was allowed by the Commission vide order dated 1st of September, 2005. Against the said order, the respondent (NOIDA) had filed an appeal before the Hon'ble Supreme Court vide Civil Appeal No. 3159 of 2006. The said appeal was dismissed by the Hon'ble Supreme Court vide order dated 8th of January, 2014. Against the aforesaid order, the NOIDA filed Civil Review Petition, which was numbered as Civil Review No. 1 of 2015. In the said Civil Review, the NOIDA had taken one of the grounds that Hon'ble Supreme Court in Writ Petition (Civil) No. 150 of 1997 had observed that 1976 Act and the rules framed thereunder do not postulate conversion of plots allotted in one category to other. After considering all the grounds taken in the aforesaid Civil Review, the Hon'ble Supreme Court vide order dated 14th of January, 2015 had dismissed the Civil Review on merits.
23. Having heard the submissions, we have gone through the relevant provisions of law as well as various documents produced by the parties through different affidavits. The respondent NOIDA in one of its counter affidavits had annexed the order dated 27.11.2013 passed by the Hon'ble Supreme Court in Writ Petition (Civil) No. 150 of 1997 wherein at paragraph no. 16 the Hon'ble Supreme Court had observed :
"1976 Act and the rules framed thereunder do not postulate conversion of plots allotted in one category to other."
24. It is true that the word 'conversion' does not find place in the Act. But the learned senior counsel appearing for the petitioners has vehemently argued that the conversion is a mode of transfer and under Section 7 of 'the Act', the NOIDA had power to transfer the land by any mode of transfer. The aforesaid point raised by learned counsel for the appellant has not been decided by the Hon'ble Supreme Court, therefore, in the interest of justice, we are proceeding to examine this question i.e. whether the conversion of one plot with another is a mode of transfer of property or not.
25. The meaning of word 'conversion' as per the Black's Law Dictionary (8th Edition) is :
The act of changing from one form to another, the process of being exchanged.
The meaning of word 'exchange' as per the aforesaid dictionary is:
The act of transferring interests, each in consideration for other.
Thus, from the conjoint reading of aforesaid meanings of the words 'conversion' and 'exchange', it appears that both are synonym of each other. Thus, if one property is exchanged with that of another, the same will amount to transfer. It is not out of place to mention that Section 118 of the Transfer of Property Act, 1882 also recognizes "exchange" as one of the mode of transfer of immovable property.
26. In the instant case, as per the Conversion Scheme of NOIDA, an old allottee of residential plot could change the old plot with that of another plot, situated in the same sector or in another sector of NOIDA. Thus, though the nomenclature of the process was given in the Scheme as conversion, but in fact the same is exchange of plots. Therefore, in our considered view the conversion of plots, as per the Scheme of the NOIDA, is 'exchange', which is a recognized mode of transfer of property.
27. Section 7 of the Act of 1976 reads as under:
"The authority may sell, lease or otherwise transfer whether by auction, allotment or otherwise any land or building belonging to the Authority in the industrial development area on such terms and conditions as it may, subject to any rules that may be made under this Act, think fit to impose."
A plain reading of aforesaid provision shows that the NOIDA has power to transfer any land or building belonging to it through sell, lease or otherwise. In our view, the phrase "otherwise transfer" used in the aforesaid provision manifests that the Legislature had given power to the Authorities (including NOIDA) to transfer land and building through any mode of transfer. In that circumstance, as the word conversion is synonym of the word exchange (which is one of the recognized mode of transfer), we hold that the NOIDA has power to transfer land through conversion and/or exchange. Thus, the aforesaid submissions made by Sri Singh that the conversion of old plots of the petitioners with new plots is not permissible under the 1976 Act, cannot be accepted.
28. It is not out of place to mention that subsequently even the Hon'ble Supreme Court had not accepted the aforesaid plea of NOIDA. It is worth mentioning that one of the allottees of the plot by way of conversion had challenged the cancellation of conversion order before the MRTP Commission, New Delhi. The MRTP Commission had set aside the cancellation order vide order dated 1st of September, 2005. The said order of the MRTP Commission was challenged by the NOIDA before Hon'ble Supreme Court by filing an appeal bearing Civil Appeal No. 3159 of 2006. The aforesaid Civil Appeal was dismissed by the Hon'ble Supreme Court vide order dated 8th of January, 2014. Thereafter, the NOIDA filed a petition for review of aforesaid order vide Review Petition No. 1 of 2015. In the said Review Petition, the NOIDA had taken one of the grounds that Hon'ble Supreme Court in Writ Petition (Civil) No. 150 of 1997 has observed that 1976 Act and the rules framed thereunder do not postulate conversion of plots allotted in one category to other. The aforesaid review application filed by the NOIDA has been dismissed by the Hon'ble Supreme Court vide order dated 14.01.2015. The said order of Hon'ble Supreme Court runs as follows:
"Upon perusal of the papers of the review petitions and the record of the Civil Appeals, we have noticed that there is an inordinate delay in filing all the review petitions, which we are not inclined to condone.
Even on merits also, we are convinced that the order of which review has been sought does not suffer from nay error apparent warranting its reconsiderations.
The Review Petitions are, accordingly, dismissed on the ground of delay as well as on merits."
Thus, from perusal of aforesaid order of Hon'ble Supreme Court, we find that the Hon'ble Supreme Court had also considered the merit of the grounds taken in the review petition and rejected all the grounds including the aforesaid ground. In that view of the matter, we are of the view that the grounds taken by Sri Ramendra Pratap Singh is worth rejecting.
29. From perusal of impugned orders, we find that cancellation of conversion orders were mainly based on four grounds, i.e. (i) the conversion of residential plots allowed in an undeveloped sector (ii) conversion of residential plots allowed in favour of such allottees who defaulted in making payment against the original allotted plots (iii) no application for conversion given by some of the petitioners and (iv) conversion was allowed much in excess of the originally allotted area i.e. more than 50% in comparison to originally allotted area.
Refer ground no. i:
30. From perusal of the scheme of conversion as contained in Office Order dated 3.7.1992, as amended by order dated 27.9.1993, we find that there is no stipulation, which prohibits conversion of plot from developed area to undeveloped area. The condition no.4 of the said Scheme stipulates that if the plot is allotted by the cooperative housing society then the conversion will be allowed within the sector only. However, it is specifically mentioned in the said condition that aforesaid restriction shall not be applicable in the cases of allotment other than through cooperative societies. Thus, it is clear that the scheme permits that the plot can be exchanged from one sector to another sector, if the same is not allotted by co-operative society. This fact is also clear from the rates of conversion charges mentioned in clause (10) of the condition for conversion. It shows that if the conversion of residential plot is allowed within the same sector then the allottee is required to pay conversion charge @ Rs. 200/- per sq. meter, whereas if the conversion is allowed in other sector then the allottee is required to pay conversion charge @ Rs. 400/- per sq. meter. Thus, it is clear that as per the Scheme one allottee may request for exchange or conversion of plot from one sector to another sector. As noticed above, there is no restriction in office order dated 03.07.1992 as amended by order dated 27.09.1993, that no conversion will be allowed from developed area to undeveloped area.
31. The NOIDA had filed a rejoinder to the counter affidavit filed by these petitioners in SLP(C) No. 10678 of 2008. In the said rejoinder at paragraph no. 24, the NOIDA had admitted that on the specified date on which the orders were issued to the applicants regarding change of plots, the policy of change of plots does not include the condition that the change of plot should not be made in an undeveloped sector. But in 1996, the change of plots policy was reconsidered and then the same was included. In the same paragraph, the NOIDA further admitted that one of its officers namely Mr. G.C.Tiwari had been exonerated from the charge in a departmental proceeding because the change of plots in Sector 44 is correct as the sector is developed. Thus, in the aforesaid rejoinder, the NOIDA admits that in the year 1994-95, when the petitioners were allowed to change their plots, there was no condition in the scheme which prohibits change of plots from developed sector to undeveloped sector. According to NOIDA, the aforesaid condition has been incorporated in the policy in the year 1996. Under the said circumstance, in our considered view, the said condition/prohibition cannot be made effective from retrospective date. Moreover, in the same rejoinder the NOIDA admitted that sector 44 was a developed sector at the relevant time. Thus, the action of the NOIDA in cancelling the conversion on this ground, is not sustainable.
32. In this connection it is worth mentioning that the petitioners nos. 2, 4, 5, 6, 7, 8, 9 and the petitioners of Civil Misc. Writ Petitions No. 69517 & 69518 of 2011, were allotted new plots in sector 44. As noticed above, since sector 44 is a developed sector, therefore, in our considered view it is not open for the NOIDA to cancel the allotments of new plots of the petitioners on this very ground.
It is not out of place to mention that so far petitioner no. 11 is concerned, his newly allotted plot has not been cancelled on this ground.
Refer ground no. ii:
33. Except the petitioners of Civil Misc. Writ Petitions No. 69517 & 69518 of 2011, this ground is one of the common grounds for cancellation of allotment made in favour of other petitioners. It is worth mentioning that the petitioners in their writ applications had stated that they are the confirmed allottees of their original plots. They have also stated that they have paid all instalments fixed by the NOIDA till the issuance of conversion order. The details of same annexed with the brief note supplied to this Court by the petitioners, copy of which has already been served on the learned counsel for the NOIDA. It is submitted that the petitioners are not the defaulters therefore, it is not open for the NOIDA to cancel the allotments made in favour of these petitioners by conversion. However, it is submitted that the petitioners are ready to pay any amount which is legally due & payable.
34. It appears that the NOIDA in its supplementary affidavit had annexed a list i.e. List no. (1), which shows that the allotment of plots of 14 persons have not been cancelled even though payments were not made by the allottees within the stipulated time. Thus, we find that the action of NOIDA in cancelling the newly allotted plots on this ground, is discriminatory, hence, violative of Article 14 of the Constitution of India.
Refer ground no. iii:
35. On this ground we find that the allotment of new plots of petitioners no. 4 Prabhakar Singh and 6 Rajeev Kohli, have been cancelled. The allotment order of the aforesaid 2 petitioners, by which the new plots allotted after conversion, have been annexed in the writ petition as annexures 4 & 6. The opening line of aforesaid order reads as under:
37. This is one of the common grounds for cancellation of newly allotted plots of the petitioners (except petitioners of Civil Misc. Writ Petition Nos.69517 and 69518 of 2011). From perusal of the conversion policy we do not find any condition which prohibits conversion if the area of the converted plot is much in excess i.e. more than 50% in comparison to original plot area.
38. Condition no. 7 of the scheme stipulates that in case the area of converted plot is more than the area of allotted plot, then the allottee shall be required to pay the premium for additional area at prevailing rate and conversion charges in lump sum within 30 days of conversion. Thus, from the aforesaid condition, it is manifestly clear that the NOIDA had a scheme to exchange/convert smaller plots with that of bigger plots with condition that the allottee shall pay the premium for additional area at the prevailing rate. In that view of the matter, the cancellation of newly allotted plots of the petitioners on this ground is not permissible. Thus, the above action of the NOIDA appears to be arbitrary and based on the whims of its officers.
It reveals from lists no. 3 & 4 annexed with the supplementary affidavit filed by the NOIDA that the NOIDA had restored plots of other allottees whose conversions were cancelled on this very ground. Accordingly, we find that the action of NOIDA in not restoring the newly allotted plots in favour of these petitioners, is discriminatory and thus, violative of equality clause of the Constitution of India.
39. At last but not the least, it appears that after allotment of new plots by way of conversion, the petitioners had deposited huge amount with the NOIDA, towards the price of newly allotted plots. It further appears that the NOIDA had already taken possession of the old plots from these petitioners. It also appears from the record that in some cases, the NOIDA already transferred the interest of old plots in favour of third party. In that view of the matter, we find that a valuable right accrued in favour of the petitioners in connection with the newly allotted plots. Under the said circumstance, it is not open for the NOIDA to take away the aforesaid valuable right from the petitioners without affording them any opportunity of hearing. In the instant case, the petitioners categorically stated that the respondents had cancelled the allotment of new plots, without affording any opportunity, whatsoever, to the petitioners in contravention of the principles of natural justice. These statements made in the writ applications have not been denied by the NOIDA in its counter affidavit. Thus, we conclude that the NOIDA had cancelled the allotment of new plots of the petitioners without giving them any opportunity of hearing. Hence, in our view, the impugned order of cancellation is violative of principles of natural justice, therefore, non-est in the eye of law.
40. In view of the discussions made above, we conclude that the impugned orders, as contained in Annexure 18 series of the amended writ petition (relating to the petitioners no. 2, 4, 5, 6, 7, 8 & 9), Annexure (I) of Civil Misc. Amendment Application No. 133611 (relating to petitioner no. 11) and Annexure no. 4 of each writ applications bearing Civil Misc. Writ Petitions No. 69517 & 69518 of 2011 are arbitrary, illegal, discriminatory, violative of principles of natural justice, thus, violative of Article 14 of the Constitution of India, therefore, cannot be sustained.
41. As noticed above, admittedly the petitioners have been allotted new plots on conversion and they have been asked to pay conversion charges as mentioned in the conversion order. It has also been stated by the petitioners that they have paid certain amount towards conversion charges and they are also ready to pay rest of the amount provided the NOIDA issues challan for the same because the banks are not accepting the money unless the challans are issued by the NOIDA. It is pertinent to mention that initially Civil Misc. Writ Petition No. 11973 of 1999 was filed only for issuance of a writ of mandamus commanding the NOIDA to issue challans as well as for acceptance of rest of the conversion charges and thereafter for delivery of possession of newly allotted plots. It is also stated that for similar relief one Pushpa Devi had filed a writ application in this Court which was allowed and against that the NOIDA had filed a SLP vide Special Leave Petition (Civil) No. 17606 of 2003 (Chairman NOIDA & others vs. Pushpa Devi), which was disposed of by the Hon'ble Supreme Court with a direction to NOIDA for accepting the amount and delivering possession of the new plot allotted to her after conversion. A similar order was also passed in SLP No.4857 of 2004 (Chief Executive Officer NOIDA Vs. Vanchit Leasing and Finance Co. & another).
42. Since we have already concluded herein above that the cancellation of conversion orders i.e. the orders impugned herein are illegal, arbitrary and violative of principles of natural justice, therefore, now the cases of the petitioners are similar to those of Pushpa Devi and Vanchit Leasing and Finance Co. (supra), as such, the aforesaid directions of Hon'ble Supreme Court can be made applicable in the case of these petitioners. Hence, we hold that the petitioners are also entitled to get the same relief.
43. In the result, the above writ petitions succeed and are accordingly allowed. The impugned orders as mentioned above are hereby quashed. We further direct the NOIDA to calculate the amount if the petitioners are further required to deposit any amount and issue challans in connection thereto within a period of one month from the date of communication of this Order, ignoring the delay, as observed by the Hon'ble Supreme Court in the order dated 22nd of March, 2004 in Special Leave Petition (Civil) No. 17606 of 2003, Chairman NOIDA & others vs. Pushpa Devi) and 4857 of 2004 (Chief Executive Officer NOIDA Vs. Vanchit Leasing and Finance Co. & another). The petitioners are directed to make payment as per the demand and challan issued by the NOIDA. We further direct that the NOIDA shall give possession of the newly allotted plots to the petitioners within 6 weeks from the date of deposit of the amount by the petitioners.
44. In the facts and circumstances of the case, we order that the parties shall bear their own costs.
Order Date :- 08.09.2016.
Kst/-