M. Katju, J.@mdashThis writ petition has been filed for a writ of certiorari to quash the impugned order dated 5.5.1998, Annexure-R to the writ petition by which the respondent has cancelled the allotments of land made in favour of the members of the petitioner Society on the ground that the same had been obtained by misrepresentation and fraud. The petitioner has also prayed for a mandamus directing the respondent New Okhla Industrial Development Authority (NOIDA) not to allot plots of the said land earlier earmarked for the members of the petitioner Society in Sections 42 and 43 NOIDA in any one else''s favour.
2. Heard learned Counsel for the parties.
3. The petitioner is a Co-operative Housing Society registered under the U.P. Co-operative Societies Act, 1965. It was registered in 1975. It was primarily formed for acquisition and development of land and allotment of the same to its members for construction of their residential units. The main object of the petitioner Society was to enable its members to acquire plots of land on a comparatively low price on affordable terms.
4. After registration of the Society it purchased land for the aforesaid purpose in village Chhallera from the funds contributed by its members as well as the funds lying in the Society being members funds. It is alleged in Paragraph 3 of the writ petition that between 1967 to 1976 there were 16 Co-operative Housing Societies formed for similar purpose in the vicinity of the petitioner Society.
5. The respondent NOIDA is an authority constituted under the U.P. Industrial Areas Development Act, 1976 for development of certain notified area in the State as industrial and urban township. Immediately after its constitution the NOIDA issued a notification u/s 9 of the aforesaid Act, imposing ban on erection of building in contravention of its Regulations within the notified area. It is alleged in Paragraph 6 of the writ petition that in its first meeting on 24.4.1976, NOIDA discussed the prospects with the Co-operative Housing Societies whose land had been acquired for the purpose and benefits of NOIDA.
6. In its 15th Board meeting on 19.6.1977, the NOIDA constituted subcommittee under the Chairmanship of Sri B.J. Khodaiji, Commissioner and Secretary, Housing and Urban Development Department, U.P. (known as the Khodaiji Committee) to negotiate with the representatives of various Co-operative Societies who had purchased the land for NOIDA area. The said Committee held several meetings and then submitted its report known as the Khodaiji Committee report vide Annexure-A to the writ petition. The details of the recommendations of the Committee are mentioned in Paragraph 11 of the writ petition.
7. In its held on 6.11.1979 NOIDA considered the recommendations of the Khodaiji Committee report and approved the same with some modifications. These modifications are mentioned in Paragraph 12 of the writ petition. Thereafter by letter dated 21.4.1980 addressed to the General Secretary, Federation of Co-operative House Building Societies, New Delhi, NOIDA offered developed plots at Rs. 130/- per sq. mtrs. in certain sectors for the members of the various Co-operative Housing Societies including members of the petitioner Society. The details are given in Paragraph 13 of the writ petition. Pursuant to the aforesaid letter NOIDA by its letter dated 21.04.1980/15.5.1980 allotted land to the extent of 40% of the total acquired land to 11 Societies at concessional rate of Rs. 130/-per sq. mtrs. The names of these 11 Societies are mentioned in Paragraph 14 of the writ petition. It is alleged in Paragraph 15 of the writ petition that while allotting the plotted land to the members of these eleven Co-operative Societies the NOIDA has followed the criteria of allotting 40% of the acquired land of each Society and in none of these cases the respondent ever raised the question of mutation or the compensation paid at that time in terms of the resolution passed in its Board meeting.
8. Since about 10,000 of the members of these 11 societies could not be accommodated as they did not apply within the time schedule for allotment of the developed plots, the Federation of Co-operative Housing Societies requested the NOIDA to consider such cases and also to accommodate such members by allotting land to them. Since the NOIDA did not agree to this, a writ petition was filed in the Supreme Court which passed an order dated 9.12.1987 vide Annexure-D to the writ petition. As is evident from this order, since there was a dispute regarding the area of the land which was acquired from the Housing Societies the Supreme Court directed the District Judge, Ghaziabad to examine the papers and submit a report. The report of the District Judge, Ghaziabad is Annexure-E to the writ petition. Thereafter by another order dated 13.1.1990, the Supreme Court directed the NOIDA to release 96.29 acres of land to the left out members numbering 2380 of the aforesaid 11 Co-operative Societies. In addition, the Supreme Court directed that 0.71 acres of land should also be set apart in order to meet the claim of the persons separately vide Annexure-F to the writ petition.
9. It is alleged in Paragraph 20 of the writ petition that the above facts show that the respondent allotted the land to the members of the Co-operative Mousing Societies to the extent of 40% of the total land acquired by these societies and this principle was approved by the Supreme Court. In the matter of the 12th Co-operative Housing Society viz., U.P. Residents Employees Co-operative Housing Building Society, the same principle was approved vide
10. As regards the petitioner Society, the same was incorporated in 1975 whereas the NOIDA came into existence in 1976. The petitioner Society started purchasing land immediately after its incorporation from funds contributed by its members. In Paragraph 28 of the writ petition it is stated that in the year 1977-78 the petitioner Society made repeated representations to NOIDA for release of 40% of the land as in the cases of other societies and requested the NOIDA to approve the layout plan so that allotment could be done. Since, the NOIDA did not agree to this request the petitioner filed a writ petition in this Court which was dismissed. Aggrieved the petitioner filed an SLP in the Supreme Court in which the Supreme Court passed the following order :
"The question of allotment of sites to the members of the Society does not arise as their land had not yet been acquired."
11. Subsequently the State Government by notification published on 27.2.1988 u/s 4 of the Land Acquisition Act, proposed to acquire the land of the Society and thereafter the land was acquired. The petitioner Society approached the respondent for allotment of developed plots to its members in view of this land acquisition and its representatives visited NOIDA on several occasions and made representations vide Annexure-I to the writ petition but to no avail. For the first time on 25.4.1994, the respondent called the petitioner Society to visit the office of the Deputy Chief Executive Officer, NOIDA on 29.4.1994. On that date the petitioner was asked to furnish certain details, which were submitted on 30.4.1994. The petitioner also forwarded all the relevant documents such as registration certificate of the Society etc. and sent reminders.
12. In Paragraph 43 of the writ petition it is stated that the respondent after having carefully scrutinized and verified the sale-deeds submitted by the petitioner relating to title to 292 bighas of the land in the name of the petitioner Society issued a letter dated 12.8.1994 to the petitioner for allotment of land to its members on the terms and conditions mentioned therein. These terms and conditions arc reproduced in Paragraph 43 of the writ petition. A perusal of the said letter shows that the NOIDA informed the petitioner that its request has been considered and it has been decided to allot residential plots to the members on certain terms mentioned therein. On receiving this letter the petitioner communicated it to its members and also gave wide publicity to it so as to avoid any dispute or discrepancy at a later stage. The petitioner also prayed for extension of time to permit the members to deposit the required amount. The NOIDA extended the date for completing the formalities upto 15.4.1994, vide Annexure-J. In Paragraphs 47 and 48 of the writ petition it is stated that the petitioner in compliance of the offer of allotment submitted the title deeds of the land and submitted the list of its members duly verified by the Competent Authority, within the time limit 1754 members of the petitioner Society deposited 40% of the cost of the land within the time limit in terms of the allotment letter dated 12.8.1994. A sum of approximately Rs. 19 crores was deposited with the respondent representing 40% of the demanded cost of the land as reservation money. Thereafter the members of the petitioner deposited another sum of Rs. 17 crores alongwith interest and those who had delayed the payment were required to pay 24% interest. In Paragraph 50 of the writ petition it is stated that the respondent has already accepted more than Rs. 36 crores till the year 1996 from the members of the petitioner Society.
13. In Paragraph 51 of the writ petition it is stated that the respondent having been fully satisfied with the genuineness of the members as per the list submitted and also about the land having been purchased by the petitioner issued allotment letters to 1754 members of the petitioner Society and also sent one proforma affidavit to be executed by each member of the petitioner vide Annexure-K to the writ petition.
14. In Paragraph 53 of the writ petition it is stated that the petitioner vide letter dated 26.7.1995 requested the respondent not to accept the first instalment towards the land so allotted directly from the members of the petitioner Society unless verified by the petitioner as there appeared to be certain discrepancy detected subsequently in the membership of the Society and the petitioner Society stated that it will not be responsible if the first instalment is accepted directly by the respondent. However, the respondent paid no heed to the submission of the petitioner and accepted the first instalment and also two more instalments totalling Rs. 17 crores without the knowledge, consent or approval of the petitioner.
15. It is alleged in Paragraph 55 of the writ petition that the respondent by letter dated 26/17.7.1995 asked the petitioner to furnish some more information regarding its members and petitioner communicated these details. Out of 1754 of its members only 870 members submitted these details to the petitioner which were forwarded by it to the respondents. Thereafter the respondent by public notice dated 25.6.1996 called upon the members/allottees of the petitioners Society to furnish information required in its letter dated 26/27.7.1995, in response to which about 900 members communicated this information directly to the respondents. Thereafter by letters dated 1.5.1996 and 21.6.1996, the respondent asked the petitioner to furnish some more information, which according to the petitioner was neither necessary nor relevant and it had not been asked for from other societies placed similarly. Moreover, as alleged in Paragraph 58 of the writ petition, the respondent continued to accept half-yearly instalments directly from the members of the petitioner Society and the amount so collected was neither intimated to the petitioner nor request made by the petitioner in terms of its letter dated 26.7.1995 were complied with by the authorities.
16. It is alleged in Paragraph 59 of the writ petition that in the month of June/July, 1996, on account of certain differences among the members of the Executive Committee of the petitioner Society some of the members fraudulently carried away with them the records of the Society. This fact was published in the newspaper ''Dainik Jagran'' and other newspapers on account of which the District Magistrate, Ghaziabad locked the office of the petitioner Society and the office remained closed for about six months and it was in January, 1997, when Shri R.C. Yadav, Additional Co-operative Officer, Ghaziabad took charge of the affairs of the petitioner Society that it was opened. Subsequently, Deputy Registrar, Co-operative Society, Meerut by order dated 19.3.1997, constituted a Board of three persons for looking after the affairs of the Society vide Annexure-L to the writ petition. Pursuant thereto a fresh election of the Managing Committee of the petitioner was held on 29/30.4.1997, under the direct supervision of the Assistant Registrar, Co-operative Societies and District Magistrate, Ghaziabad and the newly elected committee started the process of compiling the records of the petitioner Society. While the process of recompiling and reconstruction of the records was in progress a show cause notice dated 8.7.1997, was received from the respondent vide Annexure-M to the writ petition which was duly replied by the petitioner vide letter dated 28.7.1997. This reply was accompanied by 32 Annexures, some of which have been annexed to this writ petition. The petitioner then submitted some further documents relating to the membership, details of purchase of land, etc. and sought time for furnishing the remaining documents. The petitioner by letter dated 27.8.1997, submitted details of the members enrolled between 1.4.1987 to 31.5.1987, but the respondent asked the petitioner to furnish further details within a month vide Annexure-N to the writ petition. The petitioner submitted further information as asked for vide letter copies of which are Annexure-0 to the writ petition. The petitioner Society in terms of letter dated 13.10.1997 furnished the detailed reply to the report of the Deputy Chief Executive Officer, NOIDA and controverted the allegations against the petitioner in the said report.
17. It is alleged in Paragraph 67 of the writ petition that the said report was a unilateral and arbitrary device to harm the petitioner Society. Neither any information nor any opportunity to show cause was ever provided to the petitioner by the Deputy Chief Executive Officer, NOIDA and it is alleged in Paragraph 68 of the writ petition that the report is based on extraneous considerations besides being biased vide Annexure-P to the writ petition.
18. In Paragraph 69 of the writ petition it is alleged that the petitioner Society had become conscious that the respondent for vested interest was not dealing in a straightforward manner with the petitioner Society and the matter was being made complicated so that there may remain an atmosphere of chaos and confusion. The respondent was already having Rs. 36 crores at its disposal and was in search of some lame excuses whereby the respondent could escape from its commitments. The respondent with this intention created all kinds of problems, hurdles and obstacles in the proper functioning of the Society. In Paragraph 71 of the writ petition it is alleged that the petitioner vide letter dated 13.10.1997 informed the respondent that the President and Treasurer of the petitioner Society had submitted documents in order to facilitate the petitioner to complete its report. A request was made to the respondent to permit them to have copies of the report. However, the respondent did not permit the same.
19. In Paragraph 72 of the writ petition it is stated that the petitioner had consistently been writing to the respondent and had informed that the detailed reply to the show cause notice had already been submitted and in case, the respondent felt that any deficiency exists the petitioner may be informed accordingly and personal hearing be given. However, despite these requests and reminders the respondent maintained unprecedented silence. Copies of the letters in this connection are Annexure-Q to the writ petition.
20. In Paragraph 73 of the writ petition it is alleged that after a long silence the respondent wrote the impugned letter dated 5.5.1998 cancelling the allotments vide Annexure-R to the writ petition.
21. In Paragraph 74 of the writ petition it is alleged that the allegation in the impugned order that the petitioner Society had misrepresented and suppressed material facts with regard to furnishing of correct data of the land mutated and compensation received was baseless. It is an admitted fact, that the petitioner has purchases 292-12-17 bighas of land in the notified area of the respondent.
22. In Paragraph 76 of the writ petition it is stated that there is discrimination against the petitioner because while allotting land to the 13 societies mentioned hereinbefore the respondent had always taken the stand of allotting 40% of the acquired land in respect of each Society and while doing so the aspect of mutation and/or compensation paid had neither been considered nor relied upon. This was the first instance where the respondent authority discriminately and arbitrarily had resorted to the question of mutation of land and/or compensation received.
23. In Paragraph 77 of the writ petition it is stated that on the scheduled date and time a joint meeting was held between the petitioner and the respondent in which the matter and demand of the petitioner was discussed at length. In Paragraph 78 of the writ petition it is alleged that it is a mockery of the entire system that some of the members of the petitioner Society are awaiting allotment of land from 1975. The petitioner Society had purchased 292-12-17 bighas land in the notified are of the respondent and out of the said land the petitioner had got mutated land to the extent of 108-08-15 bighas. Out of this land the petitioner Society received compensation of land measuring 34 -11 - 65 bighas.
24. In Paragraph 80 of the writ petition it is alleged that in terms of Sections 54 and 167 of the U.P.Z.A. and L.R. Act, the land measuring 65 - 07 - 19 bighas was alleged to be covered under the land ceiling in favour of the State Government. The petitioner challenged the imposition of the land ceiling in the Court of the A.D.M., Finance, Ghaziabad who decided it against the petitioner and the appeal filed before the Additional Commissioner also failed but revision against that order is pending before the Board of Revenue, Allahabad and by interim order dated 19.9.1995 it was directed that the petitioner shall not be dispossessed during the pendency of the revision. Hence, the matter regarding mutation of the land measuring 65-07-19 bighas is pending adjudication before the Board of Revenue and is subjudice vide Annexure-S to the writ petition.
25. In Paragraph 84 of the writ petition it is stated that the land measuring 184-04-09 bighas purchased by the petitioner could not be mutated in his favour because of the notification dated 27.2.1988 issued by the State Government u/s 4 of the Land Acquisition Act, followed by the notification u/s 6 dated 14.12.1989.
26. Against the cancellation order proceedings have also been filed before the Monopolies and Restrictive Trade Practices Commission, New Delhi vide Paragraphs 87 to 107 of the writ petition. In Paragraph 109 of the writ petition it is alleged that the respondent has collected more than Rs. 36 crores from the allottees/members of the petitioner Society towards the allotment of developed plots in Sector 42 and 43 NOIDA. Although, Sector 42 has not been specifically included but it is impliedly covered when the respondent has mentioned Sector 43 and nearby sectors in its various letters.
27. It is alleged in Paragraph 111 of the writ petition that the principle of promissory estopppel applies in this case and the respondent has resorted to colourable exercise of power to rescind from its obligation. It is further stated that there is no material concealment by the petitioner Society and in fact the petitioner Society had without any delay submitted all the papers as required by the respondent.
28. A counter-affidavit has been filed on behalf of NOIDA. It is alleged in Paragraph 8 of the same that all the decisions/reports of Khodaiji Committee were confined to the societies which had purchased lands much before the creation of NOIDA, It is alleged that the petitioner''s claim has already been rejected by the Supreme Court by judgment dated 28.10.1987 and hence, the petitioner cannot claim any relief on the basis of various decisions taken by NOIDA in 1976 and 1979 or of the report of the Khodaiji Committee. In Paragraph 9 it is stated that the letter of the NOIDA dated 21.4.1980 was neither addressed to the petitioner nor was intended to be made applicable to the members of the petitioner Society. The said letter was addressed to the societies whose land had been purchased prior to the establishment of the NOIDA and it has no application to the petitioner. It is denied that any order for allotment of land in favour of the petitioner Society was ever passed. It is alleged in Paragraph 12 that at the time of establishment of NOIDA the petitioner Society had by then purchased a very small area of the land after it came into existence in 1975. In Paragraph 15 it is stated that the petitioner had falsely claimed in its letter dated 30.4.1994, that it is the owner of 292 - 12 -17 bighas of land and on that basis it claimed allotment of 40% of the said area.
29. In Paragraph 17 of the counter-affidavit it is stated that the NOIDA relied upon the various representations made by the petitioner and considering them to be correct proceeded to allot 40% of 292-12-17 pucca bighas of land to the members of the petitioner Society. It is alleged that subsequently the record was got confirmed by the NOIDA which shows that the petitioner was owner of only 34-11-6.75 bighas and for this area the petitioner Society has received compensation from the State. Out of the 292-12-17 pucca bighas land which the petitioner claimed as its own it was found that 118 bighas belong to other tenure holders who had already received compensation from the State. Moreover 65-12-19 bighas was declared to be excess in ceiling laws and hence, it did not belong to the petitioner. The remaining 4-9-12 bighas is also not owned by the petitioner.
30. In Paragraph 18 of the counter-affidavit it is alleged that the respondent acted on the misrepresentation that the petitioner is owner of 292-12-17 pucca bighas of land and on that basis proceeded to allot plots in favour of different persons who were claimed by the petitioner to be its bona fide members. The respondent was misled by the petitioner inasmuch as it was neither the owner of 292-12-17 pucca bighas of land nor 1754 persons were its genuine and bona fide members. In Paragraph 21 it is stated that the respondent demanded relevant information from the Society which was not provided. In Paragraph 23 it is stated that the respondent received widespread complaints and consequently issued various letters from time to time demanding various details about membership etc. Moreover, after the award of the Special Acquisition Officer various facts came to the notice of the respondent that the petitioner committed fraud and misrepresentation and a report was received from the Collector, Ghaziabad dated 24.1.1997 to tin''s effect. Hence, the show cause notice was rightly issued on 8,7.1997. True copy of the report of Dr. Prabhat Kumar, Deputy Executive Officer, NOIDA is Annexure C.A. 1. It is denied that no opportunity of hearing was given to the petitioner.
31. A rejoinder-affidavit has also been filed and we have perused the same. In Paragraph 4 it is alleged that the petitioner Society was a duly registered Society having its Registration No. 2154 by the Deputy Registrar, Co-operative Societies, U.P. dated 10.2.1975 vide registration certificate Annexure-1 to the rejoinder-affidavit. The Society was constituted with the primary object of acquisition of land and development of the same and allotment thereafter to its members for construction of their residential units. In Paragraph 5 it is alleged that after the registration the Society started purchasing land in question in village Chhallera (NOIDA) from the funds contributed from the members of the Society. True copy of the sale-deeds relating to the year 1975 and onwards are Annexure-2 to the rejoinder-affidavit. In Paragraph 6 it is stated that between 1967 to 1976 there were 16 Co-operative Housing Societies including the petitioner Society which were equally placed as all the Housing Societies were constituted with the primary object to provide residential plots /houses to its members. In Paragraph 8 it is stated that initially 37 villages were notified but subsequently additional villages were notified for the constitution of the industrial area of NOIDA.
32. In Paragraph 9 it is stated that the claim of the petitioner Society was rejected by the Supreme Court only on the ground that at that time the petitioners land was acquired and therefore, the question of allotment of alternative sites to the members of the petitioner Society did not arise. True copy of the judgment of the Supreme Court is Annexure-H to the writ petition. It is alleged that the respondent had made applicable the Khodaiji Committee report in the case of other Co-operative Housing Societies as well as the petitioner Society as is evident from the order dated 5.5.1998 which is impugned in the writ petition. In Paragraph 10 it is stated that as per Khodaiji Committee report the respondent has followed the allotment criteria of allotting 40% of the acquired land of each Co-operative Housing Society. The allotment should have been made taking into consideration the Khodaiji Committee report and as per direction of the Supreme Court. The respondent authority had allotted the land to the members of the other similarly situated Co-operative Housing Society to the extent of 40% of the total acquired land as per the direction of the Supreme Court. In the matter of 12th Co-operative Housing Society i.e., UP. Residents Employees Co-operative Housing Building Society the same criteria of allotment of 40% of the total acquired land was further approved by the Supreme Court vide
33. In Paragraph 14 of the rejoinder-affidavit it is alleged that the State Government issued notification u/s 4 of the Land Acquisition Act, published on 27.2.1988 to acquire the land of the petitioner Society for the development of NOIDA, Thereafter the notification u/s 6 was also issued on 14.12.1989 for acquiring the land including that of petitioner Society and other societies. After the said land of the petitioner was acquired in 1989 the petitioner continuously approached the respondent to allot the land to its members as per policy laid down by the respondent as has been applied in respect of other societies similarly situated. For the first time by letter dated 25.4.1994, the NOIDA directed the petitioner Society to furnish certain details and this letter was complied with by the petitioner vide letter dated 30.4.1994. Thereafter on 14.6.1994, the petitioner Society was further directed to furnish more information. In compliance the petitioner furnished photocopies of the sale-deed of 292-12-173/4 bighas of land which was purchased by the Society out of the funds collected from its members which was acquired for the NOIDA by the State Government.
34. In Paragraph 16 it is stated that the Supreme Court rejected the petitioner''s claim only on the ground that the land of the petitioner Society was not acquired at that time. This land was acquired in 1989 and hence, the petitioner Society approached the respondent for allotment of sites. Hence, the Supreme Court order docs not come in the way of the petitioner''s claim. In Paragraph 17 of the rejoinder-affidavit it is stated that the respondent took more than five months to verify all the documents and after satisfying itself on the various aspects issued allotment order on 12.8.1994 to provide land to the members of the petitioner Society vide Annexure 3 to the rejoinder-affidavit. It is stated that there was no misrepresentation by the petitioner and the sale-deeds filed by it were abundantly clear. The details are given in Paragraph 17 of the rejoinder-affidavit.
35. As regards 65-12-19 bighas of land it is stated that the provisions of Section 167 read with Section 154(2) of the U.P.Z.A. and L.R. Act arc not applicable in the case of the petitioner as the same is applicable to individual tenure holders vide judgment of the Division Bench of this Court in Lokpriya Homing Society v. State of U.P. (Civil Misc. Writ Petition No. 20518 of 1992, decided on 6.5.1997) (Annexure R.A. 54). In this Division Bench decision it has been held that Section 154 applies only to individual tenure holders and not to a Society.
36. In Paragraph 17 of the rejoinder-affidavit it is also stated that the respondent verified the land records through the Tehsildar, NOIDA and again verified the land through the Administrative Officer, NOIDA in respect of the land records submitted by the petitioner. After verifying the sale-deeds furnished by the petitioner Society the Tehsildar, NOIDA submitted his report on 2.12.1994 before the Administrative Officer, NOIDA which is as follows :
37. It is stated in Paragraph 18 of the rejoinder-affidavit that after scrutinizing ail the papers submitted by the petitioner Society and being satisfied about it allotment orders were issued in favour of the individual members of the petitioner Society as per the guidelines framed by the respondent in accordance with the Khodaiji Committee report and there was no misrepresentation. In Paragraph 21 it is submitted that the petitioner submitted each and every detail to the respondent. the genuineness of the members of the petitioner Society has been verified by the Assistant Registrar, Co-operative Society, which is the Competent Authority in respect of the societies.
38. In Paragraph 23 of the rejoinder-affidavit it is stated that in respect of members of the Society a duly attested list of 2144 members was submitted by the petitioner before the respondent and the same was verified by the Committee of three members constituted by it who gave its report dated 18.4.1997 to the Office Superintendent. The relevant part of the report is as follows :-
39. In Paragraphs 27 and 29 of the rejoinder-affidavit it is stated that the Tehsildar, NOIDA has found in his report that the petitioner Society is the owner of the land in question being 292-12-17-3/4 bighas of land on the basis of the sale-deeds submitted by it. Hence, there is no question of misrepresentation in respect of 65 bighas proceedings regarding which are pending before the Competent Court.
40. On the facts of the case we arc of the opinion that this petition deserves to be allowed.
41. It may be noted that the order of the Supreme Court dated 28.10.1987 dismissing the petitioner''s SLP itself states that the question of allotment to the members of the petitioner society did not arise as the land of the Society had not been acquired by that time. In our opinion, this order of the Supreme Court does not come in the way of the petitioner''s claim because admittedly the petitioner''s land was subsequently acquired in 1989.
42. We have carefully perused the impugned order Annexure-R to the writ petition. It has been stated therein that the petitioner made misrepresentation and suppressed material facts. It is alleged therein that it was found that on 234-11-6.75 bighas of the land of the Society had been acquired by the NOIDA and the Society had received compensation only for the said land under the Land Acquisition Act. It is alleged that this fact was suppressed by the petitioner Society and it was misrepresentated to NOIDA that a total of 292-12-17.75 bighas of land of the Society had been so acquired. It is alleged that this was a deliberate falsehood by the petitioner and NOIDA was misled by it in allotting more land to the Society than it was entitled. The District Magistrate, Ghaziabad after enquiry gave details of the actual land of the Society which was acquired for NOIDA. It was known to the Society that 65-12-19 bighas of land has vested in the State Government under the U.P.Z.A. and L.R. Act and the dispute was pending before the Board of Revenue but this fact was suppressed. It was also within the knowledge of the Society that compensation of 118-3-5 bighas of land had been paid to the farmers but this fact was suppressed. By these wrong facts the Society had obtained land from NOIDA in excess.
43. It may be noted that the impugned order states that the Khodaiji Committee report, which was accepted by the respondent, is applicable to the petitioner Society also. Thus, there is no dispute that the Khodaiji Committee Report (as modified) and the decision of the NOIDA to allot 40% land to the members of the Co-operative Housing Societies including petitioner is applicable to the petitioner Society also.
44. The only question is whether there was any misrepresentation by the petitioner.
45. It is well-settled that mutation neither confers nor discharges any rights vide Nirain Singh v. Lai Rudra Pratap Narain Singh AIR 1926 PC 100 ;
46. In
47. In view of the above discussion it is evident that mutation is not material. The petitioner Society had filed registered sale-deed in respect of land measuring 292-12-17.75 bighas prior to the cut-off date. It is the registered sale-deed and not the mutation which confers title. Hence, in our opinion, the petitioner has to be treated like other housing societies which were given benefit of the Khodaiji Committee Report in allotting 40% acquired land. By denying the petitioner''s claim there is discrimination against the petitioner and violation of Article 14 of the Constitution.
48. It was urged by the learned Counsel for the respondent that whether there was misrepresentation or not is a disputed question of fact and hence this Court should not exercise its jurisdiction under Article 226 of the Constitution in this case. We do not agree. It has been held by the Supreme Court in
"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner''s right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law."
49. Similarly, in
50. It may be mentioned that before making the allotment the authorities verified the facts and examined the sale-deeds. The Tehsildar and Administrative Officer of NOIDA submitted reports (as already mentioned above) and verified that the Society had purchased 292-12-17.75 bighas land, As regards withdrawal of compensation by the farmers, it may be mentioned that this is the matter between the petitioner and those farmers. We cannot understand what NOIDA has to do with it. After making sale-deeds by registered documents, the farmers did not retain any title to the land and it seems that they illegally withdrew the compensation for the land which they did not own.
51. It may be mentioned that merely because compensation has been granted to the farmers (from whom the petitioner purchased the land) by the Land Acquisition Officer, this does not mean that the petitioner did not own the land. Under the Land Acquisition. Act, the Collector has no power to adjudicate upon the title of the land. That matter has to be decided by a separate civil suit vide
52. A person may be a person interested and claim apportionment of compensation though he may not have title over the land, e.g., a tenant, sub-tenant, occupiers, etc. A person may be interested even though he has no title to the land. The Land Acquisition Act refers to a ''person interested'' and not owner of the land. As held by the Full Bench of this Court in Hussaini Begam v. Hussaini Begam ILR (1985) All. 573, even a person who has an agreement to sell in his favour prior to the notification u/s 4 of the Land Acquisition Act may be a person interested and claim compensation. The tenants by will, mortgagees, occupiers etc. may be persons interested depending on the facts and circumstances of the case. The Collector who is the authority under the Land Acquisition Act cannot determine title. Merely because compensation had been withdrawn by someone else it cannot be said that the petitioner is not the owner of the land. Hence, even if compensation had been withdrawn by the farmers who sold the land to the petitioner Society, this was a matter between those farmers and the petitioner and the petitioner has right to recover compensation paid to such farmers by filing a suit or taking other legal action. This, however, will not deprive the petitioner''s members from getting allotment of the land by NOIDA. It appears that fraud was committed by the farmers who fraudulently withdrew the compensation after executing the registered sale-deeds in favour of the petitioner Society. The petitioner being a bonafide purchaser through registered sale-deeds cannot in our opinion be deprived of the right of allotment.
53. Moreover, in the instant case, the Board of Revenue has restrained the respondents, from dispossessing the petitioner Society from the said allotment and the matter is subjudice. In Lokpriya Housing Society v. State of U.P. (Writ Petition No. 20518 of 1992, decided on 6.5.1997), a Division Bench of this Court examined the question of application of Section 167 read with Section 154(2) of the U.P. Zamindari Abolition and Land Reforms Act, 1951 and held that these provisions applied to individual tenure holders and not to societies, vide Annexure R.A.-4 to the rejoinder-affidavit. The Court placed reliance upon its earlier Division Bench judgment of this Court in Kasturi Sanyukt Sahkah Samiti Ltd. v. State of U.P. and Ors. (Writ Petition No. 7111 of 1988, decided on 16.3.1989) and held that Section 154 applies only to the land held by individual tenure holders and not to the land belonging to a society.
54. Hence, in view of the above, we are of the firm opinion that the respondent was not justified in not considering the said area of 65-12-19 bighas. Undoubtedly, in this case a revision is still pending before the Board of Revenue, but in view of the aforesaid two Division Bench decisions of this Court, we cannot see what useful purpose the revision will serve. After all, the Board of Revenue is an authority subordinate to this Court under Article 227 of the Constitution and it is bound by the decisions of this Court.
55. As regards the contention about genuineness of the membership of the petitioner, in our opinion, this point cannot be raised at such a belated stage particularly when the membership has already been verified by the Competent Authority under the U.P. Co-operative Societies Act. These appear to be just lame excuses mentioned in the impugned order to enable NOIDA to avoid its obligations. The respondent accepted 40% of the amount from the individual members and further instalments totalling over Rs. 36 crores and it cannot be permitted to now raise such kinds of frivolous objection at this late stage.
56. Moreover, this objection of genuineness of the members has not been raised in the impugned order. As held by the Supreme Court in
57. In our opinion, the NOIDA acted in a highly arbitrary mariner and has discriminated against the petitioner since, other societies were given the benefit claimed by the petitioner. 11 Societies mentioned in the writ petition were granted the benefit of the Khodaiji Committee report which was accepted by NOIDA with some modifications and so was the 12th Society viz.,
58. The doctrine of promissory estoppel, first propounded in our country in Union of India v. Anglo Afghan Agencies AIR 1968 SC 718 and subsequently followed in a series of decisions e.g.
59. The doctrine of promissory estoppel squarely applied in this case, as the petitioner Society and its. members had acted on the representation of the respondent and made deposits and were issued allotment orders. They had deposited Rs. 36 crores and instalments. Suddenly they have been left in the lurch by the impugned order.
60. In H.C. Venkataswami v. Bangalore Development Authority 2001 (9) SCC 2004, the Supreme Court observed, that "it was neither fair nor just on the part of the Bangalore Development Authority to have gone back on their decision which was taken with an open mind".
61. This decision squarely applies to the facts of the present case. As stated in Paragraph 43 of the writ petition, the respondent authority after having carefully scrutinized and verified the sale-deeds and other papers submitted by the petitioner relating to title to 292 bighas issued a letter to it dated 12.8.1994 for allotment of land to the members of the petitioner. On receiving this letter petitioner communicated it to its members and gave it wide publicity. 1754 of petitioner''s members deposited 40% of the cost of the land within the time limit. NOIDA accepted over Rs. 36 crores from the petitioner Society, being satisfied about the genuineness of the members and the sale-deeds and issued allotment letters to 1754 members of the petitioner. In these circumstances NOIDA cannot now be allowed to arbitrarily back out from its solemn undertaking, both because of the principle of promissory estopppel and fairness in action by the authorities.
62. In
63. In Pawan Alloys and Casting Pvt. Ltd. v. U.P.S.E.B. 1997 (7) SCC 259, the Supreme Court observed :
"If a Statutory Authority or an Executive Authority of the State functioning on behalf of the State in exercise of its legally permissible powers has held out any promise to a party, who relying on the same has changed its position not necessarily to its detriment and if this promise does not offend any provision of law or does not fetter any legislative or quasi-legislative power inhering in the promisor, then on the principle of promissory estoppel the promisor can be pinned down to the promise offered by it by way of representation containing such promise for the benefit of the promisee."
64. In
"The above survey of cases shows that the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way."
65. In our opinion, the doctrine of legitimate expectation is also applicable in this case as NOIDA had given legitimate expectation to the petitioner Society that they will be allotted land.
66. In
67. Since a sum of Rs. 36 crores was deposited by 1996 by the members of the petitioner Society through the petitioner or directly with the NOIDA, it is obvious that the NOIDA must have earned interest on that amount. Hence, we direct NOIDA to explain to the representatives of the petitioner as to where it had deposited/invested this Rs. 36 crores and how much interest was earned on this amount and the interest must be returned to the petitioner within two months from today and the petitioner shall handover the interest to its members in accordance with their deposits. Alternatively, instead of returning the amount of interest to the petitioner, the NOIDA may adjust this amount of interest towards the next instalments.
68. Since it was the NOIDA to blame for the inordinate delay in the matter we direct that the possession of the developed plots shall be handed over to the members of the petitioner Society latest within three months from today, but the instalments may be deposited by the petitioner or its members as per the original schedule assuming that the schedule commences from today.
69. For the reasons given above, the petition is allowed. The impugned order dated 5.5.1998 (Annexure-R) is quashed. The respondent is directed to allot the land in question to the members of the petitioner Society in Sector 42 and 43 of NOIDA forthwith.
