# Kapil Misra & Anr v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-22
- **Case number:** Writ -C No. 3944 of 2024
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-misra-anr-v-state-of-u-p-anr-51011
- **Pages:** 25

## Headnote

A. Civil Law - Constitution of India,1950 -
Article 300-A - UP Urban Planning and
Development
Act,
1973
-
Planned
development - Public interest versus
Individual's right - Preference to one of
them or strike balance between them -
Court's liability - Held, on one hand is
right of an individual to make the most
profitable use of his property, is a right
which is protected under article 300A of
the Constitution of India, and on the other
hand is the claim of the development
authority for a planned development and
also to prevent a haphazard development
and accordingly the competing rights have
to be interpreted in relation to each other.
The courts must make an endeavour to
strike a balance between public interest
on
one
hand
and
protection
of
constitutional rights of an individual to
hold property on the other. (Para 34)
B. Constitution of India,1950 - Article
300-A - Right to property - Scope - Right
to get map sanctioned - Enforceability -
Held, right to property includes right to
construct on the property owned by a
person
subject
to
the
applicable
regulations made in this regard - To enjoy
property is a right which is protected
under article 300-A of the constitution of
India, and denial of sanction of map, is
depriving an individual of his right of
property, and the same can be done only
with the sanction of law. (Para 37)
C. UP Industrial Area Development Act,
1976 - Section 6(f) - Deed of Exchange -
Nature - Transfer through the deed of
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
323
exchange executed by NOIDA - Validity -
Held, the NOIDA was competent to
execute and transfer land as per the Act of
1976 in as much as it was within their
competence to transfer either by be of
sale or lease or otherwise plots of land for
industrial,
commercial
or
residential
purposes. (Para 57)
D. UP Urban Planning and Development
Act,
1973
-
UP
Industrial
Area
Development Act, 1976 - Section 6(f) -
Sanction of map - Rejection on the
ground of lack of lease deed - Validity
challenged - Held, once the land has been
transferred by the NOIDA in exercise of
powers under Act of 1976, then the
transferee would be entitled to have a
map sanctioned as per regulations of

## Text

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322 INDIAN LAW REPORTS ALLAHABAD SERIES
acquiescence on the part of
the
respondent
can
be
inferred till the filing of the
appeal, and not for the
period post filing of the
appeal. Nevertheless, this
acquiescence being in the
nature of estoppel bars the
respondent from claiming
violation of the right of fair
representation."
 (emphasis supplied)

8. In light of the above, we do not
find
any
reason
for
the
delay
in
approaching this Court and 11 years is a
sufficiently long length of time for filing
the present writ petition which is highly
time barred and and delayed. Even during
his services after passing of the order of
regularization no grievance was raised by
the petitioner. In any view of the matter, the
petitioner had duly accepted the order of
regularization in 2013 and accordingly he
has
not
challenged
the
order
of
regularization
till
the
date
of
his
superannuation which has clearly fallen out
from the order of 23.11.2013.

9. In the aforesaid facts, this Court
is of the considered opinion that the claim
of the petitioner suffers from unexplained
delay and latches of 11 years, as such, no
interference is required in exercise of its
extraordinary jurisdiction under Article 226
of the Constitution. The writ petition is,
thus, dismissed.
----------
(2024) 11 ILRA 322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.
Writ -C No. 3944 of 2024

Kapil Misra & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sunil
Kumar
Chaudhary,
Abhishek
Khare,
Rajendra Kumar Dubey

Counsel for the Respondents:
C.S.C., Waseeq Uddin Ahmed

A. Civil Law - Constitution of India,1950 -
Article 300-A - UP Urban Planning and
Development
Act,
1973
-
Planned
development - Public interest versus
Individual's right - Preference to one of
them or strike balance between them -
Court's liability - Held, on one hand is
right of an individual to make the most
profitable use of his property, is a right
which is protected under article 300A of
the Constitution of India, and on the other
hand is the claim of the development
authority for a planned development and
also to prevent a haphazard development
and accordingly the competing rights have
to be interpreted in relation to each other.
The courts must make an endeavour to
strike a balance between public interest
on
one
hand
and
protection
of
constitutional rights of an individual to
hold property on the other. (Para 34)
B. Constitution of India,1950 - Article
300-A - Right to property - Scope - Right
to get map sanctioned - Enforceability -
Held, right to property includes right to
construct on the property owned by a
person
subject
to
the
applicable
regulations made in this regard - To enjoy
property is a right which is protected
under article 300-A of the constitution of
India, and denial of sanction of map, is
depriving an individual of his right of
property, and the same can be done only
with the sanction of law. (Para 37)
C. UP Industrial Area Development Act,
1976 - Section 6(f) - Deed of Exchange -
Nature - Transfer through the deed of
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
323
exchange executed by NOIDA - Validity -
Held, the NOIDA was competent to
execute and transfer land as per the Act of
1976 in as much as it was within their
competence to transfer either by be of
sale or lease or otherwise plots of land for
industrial,
commercial
or
residential
purposes. (Para 57)
D. UP Urban Planning and Development
Act,
1973
-
UP
Industrial
Area
Development Act, 1976 - Section 6(f) -
Sanction of map - Rejection on the
ground of lack of lease deed - Validity
challenged - Held, once the land has been
transferred by the NOIDA in exercise of
powers under Act of 1976, then the
transferee would be entitled to have a
map sanctioned as per regulations of
2010. Merely because the instrument by
which the land has been vested in the
petitioner is not a lease deed, cannot be a
ground for rejection of the application for
sanction of map. (Para 58)
E.
Interpretation
of
statute
-
Expropriatory
legislation
-
Strict
interpretation
-
Application
-
Held,
whenever an interpretation is being made
with regard to the provisions of an
expropriatory legislation it would be
subject to strict interpretation- Indore
Vikas Pradhikaran's case relied upon.
(Para 35)
F. Interpretation of statute - Beneficial
legislation - Purposive construction -
Applicability - The provisions of the
statute must be construed so as to make it
effective and operative and to further the
ends of justice and not to frustrate the
same. The court has the duty to construe
the statute to promote the object of the
statute - Edukanti Kistamma's case relied
upon. (Para 45)
Writ petition allowed. (E-1)
List of Cases cited:
1. T. Vijayalakshmi Vs Town Planning Member;
(2006) 8 SCC 502
2. Indore Vikas Pradhikaran Vs Pure Industrial
Coke & Chemicals Ltd.; (2007) 8 SCC 705
3. T.Vijayalakshmi & ors. Vs Town Planning
Member & anr.; (2006) 8 SCC 502
4. St. of Bombay Vs Bhanji Munji & anr.; (1954)
2 SCC 386
5. Edukanti Kistamma (Dead) through LRs &
ors.Vs S. Venkatareddy (dead) through LRs. &
ors.; (2010) 1 SCC 756
6. Executive Engineer, Southern Electricity
Supply Company of Orissa Limited (Southco)
& anr. Vs Sri Seetaram Rice Mill; (2012) 2
SCC 108
7. Paradise Development Vs Chief Town &
Country planner; 2017 SCC online All 2744

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Jaideep Narain Mathur,
learned Senior Advocate assisted by Sri
Sunil Kumar Chaudhary, Sri Abhishek
Khare
and
Ms.
Aishvarya
Mathur,
Advocate for the petitioners as well as
learned Standing Counsel for the State
respondents and Sri Sanjeev Sen, learned
Senior
Advocate
assisted
by
Sri
Waseequddin Ahmed, learned counsel
appearing
for
New
Okhla
Industrial
Development
Authority
(hereinafter
referred to as "NOIDA").

2. The petitioner has challenged
the
correctness
of
the
order
dated
11/09/2023 passed by the Chief Executive
Officer, "NOIDA" whereby he has declined
to sanction the map submitted by the
petitioner for group housing, as well as the
order dated 10/04/2024 passed by the State
Government in exercise of power under
section 41 (3) of the U.P. Urban Planning
and Development Act, 1973 wherein the
validity of the order dated 11/09/2023 has
been upheld and the revision of the
petitioner has been dismissed.
324 INDIAN LAW REPORTS ALLAHABAD SERIES
3. The brief facts involved in the
present controversy are that the petitioners
were joint owners of land measuring
10,870 sq.mtrs situated at khata No. 7
khasra No. 2, Village Rohillapur, sector
132, NOIDA, District Gautam Buddha
Nagar. The said land was sought to be
acquired by the State Government and
notification under section 4 (1) read with
section 17 (4) of the Land Acquisition Act,
1894 was issued on 13/02/2006 while the
notification under section 6 read with
section 17 (1) of the Act of 1894 was issued
on 12/06/2006. The aforesaid acquisition
proceedings
were
challenged
by
the
petitioners by filing writ petition No.
18009/2008 before this Court at Allahabad
and the aforesaid writ petition which was
allowed by means of judgement and order
dated 10/08/2009 and the notifications
under section 4 and section 6 of the Act of
1894 were quashed.

4. The petitioner filed another writ
petition being writ C No. 47873 of 2010
alleging that despite setting aside of the land
acquisition proceedings, the NOIDA had
started
illegal
encroachment
over
the
petitioner's
land.
In
the
aforesaid
circumstances, a prayer was made by the
petitioner that in case the removal of the
encroachment over the aforesaid land is not
possible then the NOIDA may consider
allotment of alternative land in lieu of
petitioner's
land. Considering
the
rival
contentions, this Court by means of judgement
and order dated 26/11/2010 had disposed of
the said petition with a direction to the NOIDA
to decide the representations of the petitioner
dated 26/06/2010 and 16/07/2010 and pass
speaking orders within a period of 6 weeks
from the date of receipt of the order.

5. It is in pursuance of the
directions of this Court, a decision was
taken by the NOIDA in its 171th Board
Meeting and resolved to execute a
registered "deed of exchange" by means of
which the petitioners would transfer the
ownership of their land of sector 132 to
NOIDA and in lieu of the same NOIDA
will transfer their ownership of its acquired
land of the same size to the petitioner
situated at village Sadarpur Sector 45
NOIDA, District Gautam Buddha Nagar.

6. Accordingly, a deed of exchange
was executed between the petitioner and
NOIDA on 26/03/2011 and from the said
date the parties became absolute owners of
the land given to them by way of deed of
exchange with absolute rights to enjoy the
said property.

7. The controversy in the present
case has arisen when an application was
given by the petitioner for sanction of the
map on 05/04/2021 in accordance with
New Okhla Industrial Development Area
Building Regulations, 2010 (hereinafter
referred to as "Regulations of 2010") to the
Chief Executive Officer NOIDA along with
requisite fees. It was further submitted that
all the necessary documents along with a
copy of the deed of exchange was filed. On
28/07/2021 the opposite party No. 2
informed the petitioners that the Proforma
submitted along with the application by the
petitioner was incomplete and also that
they have not submitted the copies of the
plan. Accordingly, the petitioner submitted
the plan on 09/08/2021.

8. Despite competing of the
formalities, the opposite party No. 2 did not
sanction the map, and, therefore, a writ
petition was filed by the petitioner being
writ petition No. 13466 of 2022 which was
disposed of by means of an order dated
11/05/2022 directing the opposite party No.
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
325
2 to pass appropriate orders on the
application for sanction of map within a
period of 45 days. Subsequently due to
non-compliance of the order of the court
contempt petitioners filed, which led to
passing of the order dated 11/09/2023
refusing to grant the building permit to the
petitioner. Aggrieved by the order dated
11/09/2023 the petitioner preferred a
revision under section 41 (3) Of the Uttar
Pradesh Urban Planning and Development
Act Read with Section 12 of the Uttar
Pradesh Industrial Area Development Act,
1976 and rejected his revision by means of
order dated 10/04/2024. The orders dated
11/09/2023 and 10/04/2024 have been
impugned by the petitioner present writ
petition.

9. While rejecting the application
of the petitioner 3 grounds were cited,
namely:-

(i) the land is initially
acquired by the NOIDA, and is
subsequently
allotted
for
the
particular
use,
which
is
also
mentioned in the lease deed, and
thereafter the map is sanction as per
the building bye laws of 2010, and
all the documents as mentioned in
the rules have to be submitted by
the applicant.
(ii)
The
NOIDA
after
acquisition of land, proceeds to
develop the said land and it is only
after lease deed is executed the
building plan is sanctioned and the
purpose of submission of lease
deed is that it can be verified that
the plan has been submitted by the
authorised allottee.
(iii) The applicant, namely
Kapil Mishra has not submitted the
lease deed but a deed of exchange
which
is
not
an
authorised
document according to the building
Regulations 2010 and therefore his
papers
are
not
complete
and
consequently his application for
sanction
of
building
plan
is
rejected.

10. The State Government while
passing
the
order
dated
10/04/2024
rejecting the revision of the petitioner and
held that in the rules of 2010, in chapter 2
clause 5 (i) provides for submission of
documents as per the form given in
appendix 1 including possession certificate,
lease deed and transfer date. It was held
that it is imperative that a lease deed be
submitted along with the application for
sanction of map along with a transfer
memorandum as provided in the Appendix
I, which have not been provided by the
petitioner and accordingly his revision was
rejected.

11. It has been submitted by Sri
Jaideep Narain Mathur learned Senior
Advocate for the petitioner that the
application of the petitioner for sanction of
the map has been rejected by the NOIDA
on the ground that as per clause 5 of
regulations, 2010 read with checklist 1-B of
the Appendix it is necessary that a lease
deed has to be filed along with the
application for sanction of map as per the
list of documents required under Check
List 1-B, and the petitioner having filed
only a deed of exchange and not the lease
deed as prescribed, the application was
rejected. It was submitted that the land was
transferred to the petitioner by exercising
the power given under section 6 (f) of the
Act, 1976 wherein NOIDA is vested with
the power to transfer land not only by
selling or executing a lease deed but also it
has the power to transfer the land even
326 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise, and hence respondent No. 2
while exercising its power as per the said
provision has passed the order dated
28/01/2011 for execution of deed of
exchange which is a transfer deed in the
eyes of law especially in view of the
provisions contained in section 118-120 of
The Transfer of Property Act in the case of
the petitioner was fully covered under
checklist 1-B (i) of appendix 1 and hence
the
respondents
have
illegally
and
arbitrarily rejected the application of the
petitioner.

12. With regard to the dispute
pertaining to the nature of the land, it was
submitted that the respondents themselves
admitted in the order dated 11/09/2023 and
10/04/2024 that the plot in question is
situated in sector 45 NOIDA, and is a
residential area as per the master plan
which was acquired and owned by NOIDA
and has been transferred in favour of
petitioner by a registered deed of exchange
in compliance of the orders passed by this
court, and therefore such a deed of
exchange would qualify to be treated as a
transfer deed as per the provisions of
Transfer of Property Act, 1882.

13. It was further submitted that
the term lease defined under section 105 of
The Transfer of Property Act, 1882 and the
exchange is defined under section 118 of
The Transfer of Property Act, 1882 both
deal with the transfer of right of ownership
and both the sections refer to the word
"transfer" which creates the right of
ownership of the property transferred from
one party to the other with only difference
that under lease, deed limited to the extent
defined in the lease deed which is not so in
the case of exchange. In Exchange, the
rights are transferred absolutely. In this
regard
it
was
submitted
that
any
interpretation taken to exclude the deed of
exchange demonstrating title was clearly
illegal and arbitrary and contrary to the
statutory provisions.

14. It was also submitted that the
action of the respondents is contrary to the
doctrine of "promissory estoppel" and
legitimate
expectation.
The
right
to
property under Article 300A of the
Constitution of India having been elevated
to the status of human rights is inherent in
every individual and thus has to be
acknowledged and by no means be belittled
by
adopting
unconcerned
nonchalant,
malafide and discriminatory action by the
respondents
which
is
a
state
instrumentality. It was further submitted
that section 19 of the Act of 1976 confers
power of the Authority to make regulations
with previous approval of the State
Government, but the regulations cannot be
read in a manner so as to deprive the
petitioner of the lawful use of the land on
ground that they are not referable to any
provision of the UP Industrial Area
Development Act, 1976.

15. It was finally submitted that
the respondents have acted in the most
illegal
and
arbitrary
manner,
and
interpreted the provisions of The U.P.
Industrial Area Development Act, 1976 and
the
regulations
made
thereunder
erroneously,
thereby
depriving
the
petitioner of his valuable right protected
under Article 300A of the Constitution of
India and merely because the checklist does
not include a deed of exchange the
respondents have illegally and arbitrarily
rejected the application of the petitioner. It
was submitted that the petitioner is a
solitary case for such a rejection of the
map, and accordingly in this regard the
respondents have adversely discriminated
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
327
the petitioner and the action is clearly
violative of article 14 of the Constitution of
India.

16. Sri Sanjiv Sen, learned Senior
Advocate appearing on behalf of NOIDA
has vehemently opposed the writ petition. It
has been submitted that the previous land
was held by the petitioner in village
Rohillapur on which agricultural activity
was being carried out, and similar land at
Sardarpur was given to the petitioner by
NOIDA in exchange for land originally
held by them. It was contended that the
petitioner could not have been sanctioned
map for any building on their original land
situated at village Rohillapur because the
same was a private land, and also because it
was unplanned and undeveloped, and it had
to be acquired by the NOIDA first,
subsequent to which a development would
have to be sanctioned, and therefore for the
same reason, no sanction can be granted to
the land subsequently allotted to him in
Sardarpur.

17. With regard to the argument of
the petitioner that Village-Sardarpur falls
within sector 45 where the predominant
land use is marked as residential, it was
submitted by the respondents that land use
is designated for a parcel of land only once
it is acquired by NOIDA and development
is planned on it. It was further submitted
that the land currently owned by the
petitioner
is
raw,
unplanned,
underdeveloped and no land use has been
designated to it and therefore cannot be
said to be residential in nature.

18. Much emphasis was laid by the
respondents on the interpretation of 'The
U.P Industrial Area Development Act,
1976'
And
the
'NOIDA
Building
Regulations' to canvass the issue that the
transfer of land in favour of the petitioner
by means of a deed of exchange would not
be sufficient in itself to sanction the map, in
as much as the mandatory requirement
would be a lease deed executed by the
NOIDA , and only thereafter, the map can
be sanctioned.

19. It was submitted that as per
section 6 of the Act of 1976 the object of
the authorities to secure the planned
development of the industry development
area for which purposes the NOIDA has to
firstly acquire the land as per section
6(2)(a) of the said Act, and subsequently to
prepare a plan for planned development of
the industrial development area which
involves demarcating parcels of land to be
developed in accordance with the plan, and
therefore it was submitted that sanction of
building plans over land on which no
planning has taken place cannot be granted.

20. It was further submitted that
according to section 9 of Act of 1976 no
person can erect any building in the
industry developing area in contravention
of any building regulation. The entire area
of land acquired by NOIDA so far stands at
12460 ha, while the master plan for 2031
envisages
the
acquisition
of
entire
developable land of 15280 ha, therefore the
remaining 2820 ha of land is yet to be
acquired. It was stated that the petitioners
land is not part of 2820 ha and is therefore
not eligible to be developed at this point of
time. It was lastly submitted that the nature
of petitioner's land was that of a private
land and as such map cannot be sanctioned
on a private land by the NOIDA authorities.
Reliance was placed upon the judgement of
this court in the case of Paradise developer
vs Chief Town & Country planner and
others reported in 2017 SCC online ALL
2744
328 INDIAN LAW REPORTS ALLAHABAD SERIES
21. Rebutting the contention of the
petitioner it was contended that the
petitioner is not a "transferee" under the
Act of 1976. As per section 2 (f) of the act
of 1976 has been defined as follows:-

'Transferee'
means
a
person (including a firm or other
body
of
individuals
whether
incorporated or not to whom any
land or building is transferred in
any manner whatsoever, under this
act and includes his successors and
assigns,

22. It was submitted that the
functions of the authority as provided in
section 6 will also clearly indicate that the
object of the authorities is to secure
planned development of the industrial
development area for which purpose the
authority can transfer land as per subclause
(f) which is as follows :-

"6(2)(f) to allocate and
transfer either by way of sale or
lease or otherwise plot of land for
industrial
commercial
or
residential purposes"

23. Apart from the above it was
submitted that as per section 7 of the act of
1976 provides specific power to transfer
the land in the following terms:-

"7. 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"

24. Considering the aforesaid
provisions of the Act of 1976 it was
submitted that the plain reading of section 7
implies that NOIDA can sell, lease or
otherwise transfer by auction, allotment or
otherwise any land or building belonging to
the authority. Thus, NOIDA cannot transfer
land which it does not own. The exchange,
which was entered into, in the present case,
was in accordance with the powers
conferred upon the NOIDA under section 7
as NOIDA transferred the land which
belonged to it in village Sardarpur. It was
emphasised that after the exchange, the
land is in exclusive ownership of the
petitioners.

25. It was further submitted that
the words "transfer" or "transferee" have to
be read in terms of the Act of 1976, as
referring to transfer of secondary rights by
an allottee/Lessee of NOIDA to third party,
with the prior approval of NOIDA through
tripartite agreement to which NOIDA is a
party.
Therefore,
according
to
the
respondents transfer can only have a
limited connotation for the purposes of the
Act of 1976, and hence no private
development can be sanctioned in NOIDA.

26. Lastly, it was submitted that
NOIDA does not levy property tax on land
falling within NOIDA and the NOIDA is
wholly dependent upon lease rentals, lease
premium,
transfer
charges
(where
applicable)
and
other
charges
levied
through the terms of its lease deed for
allotted properties, for revenue to maintain
civil services and amenities. This model of
revenue collection necessitates that all of
the development in NOIDA be carried out
under the aegis of NOIDA on the land
owned by NOIDA. In case the petitioner is
permitted to develop the land as prayed by
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
329
him
then
exchequer
would
suffer
substantial loss.

27. We have heard the rival
submissions at length. The dispute in the
present case relates to the right of the
petitioner to get the map sanctioned
pertaining to the land which was given to
the petitioner situated at village Sardarpur
in exchange of the land purchase by the
petitioner in village Rohillapur.

28. The facts in the present case
are not in dispute, inasmuch as the
petitioner was the owner of the land
situated at village-Rohillapur which was
sought to be acquired by the State
Government and given to NOIDA for
development.
The
said
acquisition
proceedings were set aside, and the
ownership of the land came to be vested in
the petitioner alone. Despite acquisition
proceedings having been set aside, it seems
that detrimental activities are carried on by
the NOIDA contrary to the judgement of
the High Court, and therefore another writ
petition was filed by the petitioner in this
regard being writ petition No. 47873 of
2010, and noticing that the said land was in
fact been utilised by the NOIDA authorities
for development option has been given to
them to give an equivalent land to the
petitioner and accordingly decide the
representation in this regard.

29. The NOIDA authorities in their
171st board meeting held on 25/02/2011
resolved to execute a registered deed of
exchange by which the petitioners were to
transfer the ownership of the land of sector
132 NOIDA (Rohillapur) and in lieu of the
same, the NOIDA were to transfer the
ownership of the acquired land of the same
size situated at village Sardarpur, Sector 45
NOIDA. In light of the said board
resolution, a deed of exchange was
executed on 26/03/2011.

30. The petitioners submitted an
application for sanctioning of map on
05/04/2021 which was rejected on the
ground that the said application did not
include the lease deed which is an essential
document as per the list 1-B of Appendix 1
of the Regulations of 2010. The revision
before the State Government was also
rejected
by
means
of
order
dated
10/04/2024.
It
is
the
case
of
the
respondents that in the present case after
execution of a deed of exchange in favour
of the petitioners, the status of the land of
the petitioners is akin to a private holding
on which no map can be sanctioned.

31. Accordingly, the question for
this Court for consideration is as to whether
the map of the petitioner was wrongly
rejected, or whether he fulfilled all the
conditions
prescribed
under
the
U.P
Industrial Area Development Act, 1976 and
regulations framed so that his map can be
sanctioned.

32. To consider the aforesaid
question, it has also to be considered
whether the ownership documents as
provided for in checklist 1-B of appendix 1
of the regulation of 2010 would include a
deed of transfer, or in absence of lease deed
the
NOIDA
would
be
within
its
competence to reject the application for
sanction of map.

33. NOIDA is an industrial
development authority constituted by the
State Government of Uttar Pradesh in
exercise of its powers under Section 3 of
U.P. Act No. 6 of 1976. Authority under
this Act can be constituted for any
industrial development area and such areas
330 INDIAN LAW REPORTS ALLAHABAD SERIES
would be those which have been declared
as such by notification by the State
Government. The object of the industrial
development
authority,
as
is
evident
from Section 6 of the Act, is to secure
planned development of the industrial
development areas. Its functions include
providing
infrastructure
for
industrial,
commercial or residential purposes as also
to allocate and transfer either by way of
sale or lease or otherwise, plots of land for
the aforesaid purposes.

34.

To
consider
the
rival
contentions it is necessary to bear in mind
that on one hand is right of an individual to
make the most profitable use of his
property, is a right which is protected under
article 300A of the Constitution of India,
and on the other hand is the claim of the
development authority for a planned
development and also to prevent a
haphazard development and accordingly
the competing rights have to be interpreted
in relation to each other. The courts must
make an endeavour to strike a balance
between public interest on one hand and
protection of constitutional rights of an
individual to hold property on the other.
The aspect of balancing of both the rights
was duly considered by the Supreme Court
in the case of T. Vijayalakshmi v. Town
Planning Member, (2006) 8 SCC 502
when it was observed as under:

"15. The law in this behalf
is explicit. Right of a person to
construct residential houses in the
residential area is a valuable right.
The said right can only be
regulated in terms of a regulatory
statute but unless there exists a
clear provision the same cannot be
taken away. It is also a trite law
that the building plans are required
to be dealt with in terms of the
existing law. Determination of such
a question cannot be postponed far
less taken away. Doctrine of
legitimate expectation in a case of
this nature would have a role to
play."

35. Undoubtedly, where in any
area the Act of 1976 comes into operation
and notification ensues bringing the said
area within the development area, the right
of the owner to use the property stands
restricted, and would be subject to the
provisions of the Act of 1976 along with
New Okhla Industrial Development Area
Building Regulations, 2010. Whenever an
interpretation is being made with regard to
the
provisions
of
an
expropriatory
legislation it would be subject to strict
interpretation. This aspect of the matter was
dealt at length of the Supreme Court in the
case of Indore Vikas Pradhikaran v. Pure
Industrial Coke & Chemicals Ltd., (2007)
8 SCC 705:

Interpretation of the Act

57. The
Act
being
regulatory in nature as by reason
thereof the right of an owner of
property to use and develop stands
restricted,
requires
strict
construction. An owner of land
ordinarily would be entitled to use
or develop the same for any
purpose unless there exists certain
regulation in a statute or statutory
rules. Regulations contained in
such statute must be interpreted in
such a manner so as to least
interfere with the right to property
of
the
owner
of
such
land.
Restrictions are made in larger
public interest. Such restrictions,
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
331
indisputably must be reasonable
ones.
(See Balram
Kumawat v. Union of India [(2003)
7 SCC 628] ; Krishi Utpadan
Mandi Samiti v. Pilibhit Pantnagar
Beej Ltd. [(2004) 1 SCC 391]
and Union of India v. West Coast
Paper Mills Ltd. [(2004) 2 SCC
747]
) The
statutory
scheme
contemplates that a person and
owner of land should not ordinarily
be deprived from the user thereof
by
way
of
reservation
or
designation.
58. Expropriatory
legislation, as is well-known, must
be given a strict construction.
59. In Hindustan Petroleum
Corpn.
Ltd. v. Darius
Shapur
Chenai [(2005)
7
SCC
627]
construing Section 5-A of the Land
Acquisition
Act,
this
Court
observed: (SCC pp. 634-35, para
6-7)
"6. It is not in dispute that
Section 5-A of the Act confers a
valuable right in favour of a person
whose lands are sought to be
acquired. Having regard to the
provisions contained in Article 300A of the Constitution, the State in
exercise of its power of 'eminent
domain' may interfere with the
right of property of a person by
acquiring the same but the same
must be for a public purpose and
reasonable compensation therefor
must be paid.
7.
Indisputably,
the
definition of public purpose is of
wide amplitude and takes within its
sweep the acquisition of land for a
corporation owned or controlled by
the State, as envisaged under subclause (iv) of Clause (f) of Section
3 of the Act. But the same would
not mean that the State is the sole
judge therefor and no judicial
review
shall
lie.
(See Jilubhai
Nanbhai
Khachar v. State
of
Gujarat [1995 Supp (1) SCC 596]
.)"
It was further stated: (SCC
p. 640, para 29)
"29.
The
Act
is
an
expropriatory
legislation.
This
Court in State of M.P. v. Vishnu
Prasad Sharma [AIR 1966 SC
1593] observed that in such a case
the provisions of the statute should
be strictly construed as it deprives
a person of his land without
consent.
[See
also Khub
Chand v. State of Rajasthan [AIR
1967 SC 1074] and CCE v. Orient
Fabrics (P) Ltd. [(2004) 1 SCC
597] ]There cannot, therefore, be
any doubt that in a case of this
nature due application of mind on
the part of the statutory authority
was imperative."
In State
of
Rajasthan v. Basant
Nahata [(2005) 12 SCC 77 : JT
(2005) 8 SC 171] it was opined:
(SCC p. 102, para 59)
"In
absence
of
any
substantive provisions contained in
a parliamentary or legislative act,
he
cannot
be
refrained
from
dealing with his property in any
manner he likes. Such statutory
interdict would be opposed to one's
right of property as envisaged
under
Article
300-A
of
the
Constitution."

In State
of
U.P. v. Manohar [(2005)
2
SCC
126] a Constitution Bench of this
332 INDIAN LAW REPORTS ALLAHABAD SERIES
Court held: (SCC p. 129, paras 78)
"7. Ours is a constitutional
democracy and the rights available
to the citizens are declared by the
Constitution.
Although
Article
19(1)(f) was deleted by the Fortyfourth
Amendment
to
the
Constitution, Article 300-A has
been placed in the Constitution,
which reads as follows:
'300-A. Persons not to be
deprived of property save by
authority of law.-No person shall
be deprived of his property save by
authority of law.'
8. This is a case where we
find utter lack of legal authority for
deprivation of the respondent's
property by the appellants who are
State authorities."
In Jilubhai
Nanbhai
Khachar v. State of Gujarat [1995
Supp (1) SCC 596] the law is stated
in the following terms: (SCC p.
622, para 34)
"34. The right of eminent
domain is the right of the sovereign
State, through its regular agencies,
to reassert, either temporarily or
permanently, its dominion over any
portion of the soil of the State
including private property without
its owner's consent on account of
public exigency and for the public
good. Eminent domain is the
highest and most exact idea of
property
remaining
in
the
Government, or in the aggregate
body of the people in their
sovereign capacity. It gives the
right to resume possession of the
property in the manner directed by
the Constitution and the laws of the
State, whenever the public interest
requires
it.
The
term
'expropriation'
is
practically
synonymous with the term 'eminent
domain'."
It was further observed:
(SCC p. 627, para 48)
"48. The word 'property'
used in Article 300-A must be
understood in the context in which
the sovereign power of eminent
domain is exercised by the State
and property expropriated. No
abstract principles could be laid.
Each case must be considered in
the light of its own facts and
setting. The phrase 'deprivation of
the property of a person' must
equally be considered in the fact
situation of a case. Deprivation
connotes different concepts. Article
300-A
gets
attracted
to
an
acquisition or taking possession of
private property, by necessary
implication for public purpose, in
accordance with the law made by
Parliament or a State Legislature,
a rule or a statutory order having
force of law. It is inherent in every
sovereign State by exercising its
power of
eminent
domain
to
expropriate
private
property
without owner's consent. Prima
facie, State would be the judge to
decide whether a purpose is a
public purpose. But it is not the
sole judge. This will be subject to
judicial review and it is the duty of
the court to determine whether a
particular purpose is a public
purpose or not. Public interest has
always been considered to be an
essential
ingredient
of
public
purpose. But every public purpose
does not fall under Article 300-A
nor every exercise of eminent
11 All. Kapil Misra & Anr. Vs. State of U.P. & Anr.
333
domain an acquisition or taking
possession under Article 300-A.
Generally speaking preservation of
public health or prevention of
damage to life and property are
considered to be public purposes.
Yet deprivation of property for any
such purpose would not amount to
acquisition or possession taken
under Article 300-A. It would be by
exercise of the police power of the
State. In other words, Article 300-A
only limits the powers of the State
that no person shall be deprived of
his property save by authority of
law. There has to be no deprivation
without any sanction of law.
Deprivation by any other mode is
not acquisition or taking possession
under Article 300-A. In other
words, if there is no law, there is no
deprivation. Acquisition of mines,
minerals
and
quarries
is
deprivation under Article 300-A."
Rajendra Babu, J. (as the
learned Chief Justice then was)
in Sri
Krishnapur
Mutt v. N.
Vijayendra Shetty [(1992) 3 Kar LJ
326] observed: (Kar LJ p. 329,
para 8)
"8.
The
restrictions
imposed in the planning law though
in public interest should be strictly
interpreted because they make an
inroad into the rights of a private
person to carry on his business by
construction of a suitable building
for the purpose and incidentally
may affect his fundamental right if
too widely interpreted."
60. The question has also
been addressed by a decision of the
Division Bench of this Court in Pt.
Chet
Ram
Vashist v. Municipal
Corpn. of Delhi [(1995) 1 SCC 47]
, wherein R.M. Sahai, J., speaking
for the Bench opined: (SCC p. 54,
para 6)
"6. Reserving any site for
any street, open space, park,
school, etc. in a layout plan is
normally a public purpose as it is
inherent in such reservation that it
shall be used by the public in
general.
The
effect
of
such
reservation is that the owner ceases
to be a legal owner of the land in
dispute and he holds the land for
the benefit of the society or the
public in general. It may result in
creating an obligation in nature of
trust and may preclude the owner
from transferring or selling his
interest in it. It may be true as held
by the High Court that the interest
which is left in the owner is a
residuary interest which may be
nothing more than a right to hold
this land in trust for the specific
purpose specified by the coloniser
in the sanctioned layout plan. But
the question is, does it entitle the
Corporation to claim that the land
so specified should be transferred
to the authority free of cost. That is
not made out from any provision in
the Act or on any principle of law.
The Corporation by virtue of the
land specified as open space may
get a right as a custodian of public
interest to manage it in the interest
of the society in general. But the
right to manage as a local body is
not the same thing as to claim
transfer of the property to itself.
The effect of transfer of the
property is that the transferor
ceases to be owner of it and the
ownership stands transferred to the
person in whose favour it is
334 INDIAN LAW REPORTS ALLAHABAD SERIES
transferred. The resolution of the
Committee to transfer land in the
colony for park and school was an
order for transfer without there
being any sanction for the same in
law."

36. In the present case, the
petitioner claims that his application for
sanction of a building map has been
wrongfully rejected by the respondent
authority. The reason for rejection is that
the petitioner is not entitled for being
sanctioned the said map as per the
regulations of 2010, and specially that he
could not produce the lease deed which
according to the respondents is mandatory
condition for sanctioning of the map. There
is no dispute that the petitioner is the owner
of the property, the same having been
transferred in his favour by the respondents
by means of a deed of exchange executed
between them on 26/03/2011. By the said
deed of exchange the petitioners became
the absolute owners of the property. The
property which is transferred to the
petitioner was previously acquired by the
State Government for the NOIDA, and as
the original land of the petitioner was
utilised by the NOIDA for its development
purposes.

37. Right to property includes right
to construct on the property owned by him
subject to the applicable regulations made
in this regard. In T.Vijayalakshmi and
others vs. Town Planning Member and
another (2006) 8 SCC 502 it was held by
the Apex Court that the right to property
would include right to construct a building.
Such a right, however, can be restricted by
legislation, which must stand test of
reasonableness. The right to property has
also been included as human right and is
part of right to development, which is in
turn has been held to be right to life
guaranteed
under Article
21 of
the
Constitution of India.