Full Judgment Text
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CASE NO.:
Appeal (civil) 1569 of 2004
PETITIONER:
New Okhla Industrial Development Authority
RESPONDENT:
Kendriya Karamchari Sahkari Grih Nirman Samiti
DATE OF JUDGMENT: 24/04/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
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-
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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 :
1. Year-wise detailed information of members enrolled by
the society;
2. 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.
3. Year-wise details of pass book containing entries
deposit of membership fees.
4. 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
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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:
1. Year-wise details of payments made for purchase of land
and concerned sale deeds.
2. Year-wise details of receipt of compensation for the land.
3. Year-wise detailed information of members enrolled by
the society with their full particulars name, age,
parentage and address.
4. 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.
5. Year-wise details of pass book containing entries depot of
membership fees.
6. Details of cash book, balance sheet etc. from the
inception of the society till 1988.
7. Copies of proceedings of the Annual General Meeting for
the each year since inception.
8. List of original members, if any, submitted at the time of
registration to the housing commissioner/Registrar.
9. 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
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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
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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
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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.