New
Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih
Nirman Samiti [2006] Insc 221 (24 April 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
Challenge
in this appeal is to the legality of judgment rendered by a Division Bench of
the Allahabad High Court allowing the writ petition filed by the respondent.
Background
facts in a nutshell are as follows:
Appellant
- New Okhla Industrial Development Authority (in short the 'NOIDA') was
constituted under the provisions of Section 3 of the Uttar Pradesh Industrial
Area Development Act, 1976 (in short the 'Act'). The main object of the Act was
planned development of an industrial development area. For the said purpose
State of Uttar Pradesh acquired lands falling in various villages by invoking
the provisions of the Land Acquisition Act, 1894 (in short the 'LA Act') by
issuing various notifications. This Court in Kendriya Karamchari Sahkari Nirman
Samiti Ltd. & Anr. v. The New Okhla Industrial Development Authority &
Ors. (AIR 1988 SC 1) held that lands belonging to cooperative societies are not
exempt from acquisition by the State for the purpose of planned development of
Noida area. Since the land of a number of Co- operative Societies were
compulsorily acquired, a decision was taken by the NOIDA that land equivalent
to 40% of the land holding of such societies would be made available for
allotment to the members of the societies whose land was acquired. The
respondent - society represented vide its letter dated 30th April 1994 that it
owned 292 bighas of land and on that basis moved for allotment of land for the
benefit of its members. In response a letter dated 14.6.1994 was written by
NOIDA that the respondent's request for allotment of residential plots is under
consideration and as soon as the decision is taken necessary information shall
be given. By letter dated 8.8.1994 appellant asked the respondent - society to
send a list of its members duly verified by the District Assistant Registrar
Cooperative Societies, Ghaziabad. A list was sent purportedly
verified by the Assistant Registrar of Cooperative Societies. Acting on the
basis of representation made by the Society and believing the same to be
correct, appellant proceeded to allot land equivalent to 40% of 292 bighas. The
respondent wrote a letter dated 9.9.1994 indicating details of such 292 bighas.
In February and March, 1995 allotment letters were issued to individual members
totaling 1754 for land measuring 3,23,650 sq.m. In paragraph 21 of the
allotment letter it was stipulated as follows :
"21.
CONSEQUENCES OF MIS- REPRESENTATION:
If the
allotment/lease of the plot is obtained by any misrepresentation, suppression
of material fact, mis-statement of fraud, allotment/lease may be
cancelled/determined and the possession of the plot and building thereon (if
exists) may be resumed by the Chief Executive Officer or his duly authorized
representative and the allottee/lessee will not be entitled to any
compensation. Entire money deposited will also be forfeited in favour of the
authority.
Besides,
Authority will be at liberty to initiate legal action against such
allottee/lessee." Accordingly, payments in respect of such allotments to
1754 persons were accepted. Complaints were received from various persons who
alleged that they were in fact members of the respondent-society, but their
names were not forwarded by the Society for allotment of plots. In view of
these complaints and with a view and intent to check correctness of the
membership list, appellant requested Secretary of the respondent-Society on
1.5.1996 to give the following details :
-
Year-wise
detailed information of members enrolled by the society;
-
Year-wise
membership fees deposited by the members to obtain membership of the society
and further year- wise details regarding deposit of such an amount by the
society.
-
Year-wise
details of pass book containing entries deposit of membership fees.
-
Details of cash
book, balance sheet etc. from the inception of the society till 1988.
On
15.5.1996 President of the respondent-Society Sh. Balbir Singh informed the
appellant that he had asked the Secretary to place relevant records before him.
But no documents were forwarded. Letter dated 1.5.1996 was followed by another
letter dated 21.6.1996 reiterating that if documents asked for were not
furnished, allotments would be cancelled. Public notice was given on 22.6.1996
and 25.6.1996 as no documents were furnished. On 26.7.1996 the President of the
respondent-Society requested grant of further 15 days' time to furnish the documents.
On 4.10.1996 a letter was received from the office of the Governor, Uttar
Pradesh along with complaints from various persons who claimed to be members of
the respondent-Society and whose names were not forwarded by the
respondent-society for allotment of plots. A list of membership of the
respondent- society duly authenticated by the Registrar, Uttar Pradesh Housing
and Development Board, Lucknow indicated that only 546 members
were enrolled by the Society upto 27.4.1987.
Name
of many persons mentioned in this list and those who had sent complaints
regarding exclusion were not found in the list purported to have been verified
by Sh. Balbir Singh, president of the respondent-Society, who had earlier
claimed to have verified the membership as Assistant Registrar- Cooperative
societies. In these circumstances an enquiry was conducted by the Deputy Chief
Executive officer of the appellant. In this enquiry on the basis of the
information collected, award given by the Additional District Magistrate on 17.8.1996
and the report of the District Magistrate, Ghaziabad dated 24.1.1997 it was
revealed that the Society had made gross misrepresentation that 292 bighas of
land had been acquired and a false claim for allotment of 40% of the said areas
was set up. It was further revealed that Society had received compensation for
land acquisition in respect of only 34 bighas of land. Interestingly 65 bighas
of land recorded in the name of the Society had vested in the State Government
in terms of Section 154 of the Uttar Pradesh Zamindari Abolition and Land
Reforms Act. More curiously, in respect of 118 bighas of land from the
remaining 192 bighas of land compensation had been taken by the farmers and not
by the respondent-Society. Therefore, a show cause notice was issued on
8.7.1997 requiring the respondent specifically to furnish the following
documents:
-
Year-wise
details of payments made for purchase of land and concerned sale deeds.
-
Year-wise
details of receipt of compensation for the land.
-
Year-wise
detailed information of members enrolled by the society with their full
particulars name, age, parentage and address.
-
Year-wise
membership fees deposited by the members to obtain membership of the society
and further yearwise details regarding deposit of such an amount by the
society.
-
Year-wise
details of pass book containing entries depot of membership fees.
-
Details of cash
book, balance sheet etc. from the inception of the society till 1988.
-
Copies of
proceedings of the Annual General Meeting for the each year since inception.
-
List of original
members, if any, submitted at the time of registration to the housing
commissioner/Registrar.
-
Annual audit
report for each year of the society from the beginning.
Thirty
days' time was given to furnish the document so that allotment to the extent of
40% of the land acquired from the society in case of its genuine members could
be granted. It was clearly indicated that in case the details were not
furnished, all the allotments made to the members of the society would be cancelled
and money deposited forfeited.
Legal
proceedings were contemplated against office bearers of the society for playing
fraud.
In
response, the respondent-Society furnished a list of members enrolled between
1.4.1987 to 31.5.1987 and stated that the remaining documents would be sent
soon. On 4.10.1997 the respondent-Society sent another letter alongwith which
another list of members enrolled between 1.6.1987 to 31.10.1987 was annexed.
Again time was asked for and assurance was given to furnish other documents.
Despite
grant of opportunities and the assurances made, nothing concrete was placed by
the respondent-Society to substantiate the genuine membership. In these
circumstances cancellation letter was issued on 5.5.1998 indicating that in
view of non-submission of relevant documents and the malpractice adopted, the
allotments were cancelled. Although according to the appellant, it was entitled
to forfeit the amount in deposit yet a decision was taken to refund the same to
the members who had earlier been allotted plots.
Questioning
correctness of the cancellation, certain members of the respondent-society
filed a petition before the MRTP Commission. The Association was titled as
"Noida Sector 43 Allottees Welfare Association". Initially by order
dated 15.5.1988 MRTP Commission granted an order of status quo. Subsequently
another petition was filed before the MRTP Commission. Counter Affidavit was
filed by present appellant before the Commission indicating as to how massive
fraud have been practiced by the respondent. A rejoinder was filed by the
appellant. During pendency of the matter before the Commission, a Writ Petition
was filed on 19.11.2001 before the Allahabad High Court questioning the
decision dated 5.5.1998. On 15.1.2002 the petition before the Commission was
withdrawn by the respondent. In the writ petition counter affidavit was filed.
Attention was drawn to order dated 7.3.2003 passed by this Court in I.A. No. 18
of 2002 in Civil Appeal No. 5502 of 1983. This court directed the NOIDA to comply
with the direction dated 4.4.1991 and to develop and bring before this court a
housing scheme for 242 members of the U.P. Residents Society. Rejoinder was
filed on 20.7.2003.
Though
appellant requested for time to file further affidavit and documents prayer was
not granted. The High Court reserved judgment on that date and by order dated
5.8.2003 the writ petition was allowed. The judgment is under challenge in this
Appeal.
Learned
counsel for the appellant inter alia submitted that the High Court entered into
disputed questions of fact. It was specifically brought to the notice of the
High Court that dispute relating to 64 bighas of land was pending before the
Board of Revenue and that in respect of 118 bighas of land compensation had
been taken by the farmers and the factual scenario clearly indicated as to how
fraud was practiced by the respondent-Society. The High Court not only
nullified the effect of the proceedings before the Board of Revenue, but also
gave findings to the effect that fraud was committed by the farmers and also
directed payment of interest. According to learned counsel principles of
Promissory Estoppel had no application to the facts of the case, though the
High Court founded its conclusions on those principles.
In
reply, learned counsel for the respondent submitted that there was no dispute
regarding membership which could be adjudicated by the appellant. It was a
matter for the Co- operative Societies Authorities. Even if it is accepted that
some matters were pending before the Board of Revenue that area can be at the
most excluded. But denying entitlement of 40% on that ground is not proper.
Even if the farmers had taken the compensation, it is a matter between the
society and the farmers and that had no relevance so far as the present dispute
is concerned. The report of the Tehsildar clearly indicated that 292 bighas of
land had been acquired from the society.
Though
it is claimed by the respondent that there was no dispute that 292 bighas of
land had been acquired by the Society, on verification of records the position
appears to be entirely different. It has been all through the stand of
appellant that the Society had misrepresented to be the owner of 292 bighas of
land. This is a disputed question of title which was to be established in an
appropriate court of law and the writ petition was not the proper remedy.
Further as rightly contended by the learned counsel for the appellant, the High
Court's order practically renders the proceedings before the Board of Revenue
redundant. Findings recorded about the merits of the proceedings before the
Board of Revenue when the State was not a party in the writ petition is an
impermissible course adopted by the High Court. Even otherwise, the finding
that farmers have practiced fraud is without any foundation since farmers were
not parties in the writ petition. The appellant's effort was to verify
genuineness of the members who were claimed by the Society to be its genuine
members. Interestingly at the initial stage the list was verified by Sh. Balbir
Singh who undisputedly was President of the respondent-Society. In spite of
several opportunities the details regarding membership were not furnished.
Obviously it cannot be said that the appellant was bound to allot land, even if
the membership was not established and it was established that large number of
people were not genuine members. Allotment in the manner desired by the
respondent- Society would be against the very purpose of allotment flowing from
the scheme in question. In any event highly disputed questions of fact were
involved. The High Court did not examine that issue in its proper perspective.
It only referred to some decisions which noted that the High Court is not
deprived of its jurisdiction to entertain a petition under Article 226 of the
Constitution, merely because in considering the petitioner's right to relief,
questions of fact may fall to be determined. These judgments have been read out
of context.
It is
fairly well settled that disputed questions of fact should not be gone into by
the High Court in writ proceedings.
A High
Court is not deprived of its jurisdiction to entertain a petition merely
because in considering petitioner's right to relief question of fact may fall
to be determined as pointed out in Gunwant Kaur v. Municipal Committee (AIR
1970 SC 802). In a petition under Article 226, the High Court has jurisdiction
to try issues of law and fact. Where, however, the petition raises complex
question of fact, the Court should not entertain the petition. In Mahanta Moti
Das v. S.P. Sahid (AIR 1959 SC 942) the High Court refused to go into the
question as to whether Trusts were public or private trusts as the question had
involved investigation of complicated facts and recording of evidence. The view
was upheld. Thus, if there is a question on which there is a serious dispute
which cannot be satisfactorily decided without taking evidence, it should not
be decided in a writ proceeding (See Union of India v. T.R. Verma, AIR 1957 SC
882). If disputed questions of fact arise and the High Court is of the view
that those may not be appropriately tried in a writ petition, the High Court
has jurisdiction to refuse to try those questions and relegate the party to his
normal remedy to obtain redress in a suit.
In a
petition under Article 226, the High Court has jurisdiction to try issues both
of fact and law. When the petition raises complex questions of fact which may,
for their determination, require oral evidence to be taken and on that account
the High Court is of the view that the disputed statement may not be
appropriately tried in a writ petition, the High Court should ordinarily
decline to try the petition.
Thus,
a High Court is not deprived of its jurisdiction to entertain a petition under
Article 226 merely because in considering the petitioner's right, question of
fact may fall to be determined. Ultimately, the question is one of discretion
which is to be exercised in conformity with judicial principles.
The
High Court entertained the writ petition on the ground that the present
appellant by acting wholly arbitrarily and illegally had discrimination against
the writ petitioner.
These
conclusions were based on no material. On the contrary, the factual scenario as
described above goes to show that the respondent-Society was not entitled to
maintain a writ petition. Further there was no claim for interest made in the
writ petition but the High Court granted interest. Looked at any angle the High
Court's order is clearly unsustainable and is set aside. The Writ Petition (Civil)
No. 39842 of 2001 filed before the High Court is dismissed.
The
appeal is allowed but in the circumstances without any order as to costs.
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