# Shivalik Sahkari Avas Samiti v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 211
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-12-23
- **Case number:** Civil Misc. Writ Petition No. 51175 of 2004
- **Bench:** R.P. Misra, A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivalik-sahkari-avas-samiti-v-state-of-u-p-and-others-40356
- **Pages:** 5

## Headnote

Land Acquisition Act S.-48- read with
U.P. Industrial Area Development Act
1976 read with U.P. Urban Planning
Development Act 1973-Exclusion from
acquisition-can be made only when the
Possession not taken -instructions issued
in the shape of G.O. or execution
instruction-without taking recourse of
section 48-can not sustained.

Held: Para 12 & 13

Further the impugned order in the
present case has also not taken into
account as to whether the government
order dated 22.10.2002 is a direction
issued by the State Government as
contemplated under section 12 of the
1976 Act read with section 41 of the U.P.
Urban Planning and Development Act or
not.

The provisions under which, exemption
of a land acquired under the Land
Acquisition Act can be granted, is section
48 of the Land Acquisition Act. The land
can
be
excluded
from
acquisition
proceeding by taking resort to the
notification in the official Gazette under
section 48 which provides that such an
exemption can be made where the
possession of the land has not been
taken over. In view of the aforesaid
position, no instructions issued by the
State Government either in the shape of
a
government
order
or
any
other
executive instructions can be pressed
into service for exempting the land
without taking recourse to section 48.
Case law discussed:
(1988) 1 SCC-63

## Text

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Shivalik Sahkari Avas Samiti V. State of U.P. and others
211
 property after four years and is therefore
a clog on the equity of redemption.

9. In view of the above discussion,
the question is answered in favour of the
plaintiff-respondent and it is found that
the condition in the mortgage deed that if
the security money is not paid within 4
years the document would be treated as
sale is void. The appeal therefore lacks
merit and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2004

BEFORE
THE HON'BLE R.P. MISRA, J.
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 51175 of 2004

Shivalik Sahkari Avas Samiti

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rakesh Pandey

Counsel for the Respondents:
Sri Anurag Khanna
S.C.

Land Acquisition Act S.-48- read with
U.P. Industrial Area Development Act
1976 read with U.P. Urban Planning
Development Act 1973-Exclusion from
acquisition-can be made only when the
Possession not taken -instructions issued
in the shape of G.O. or execution
instruction-without taking recourse of
section 48-can not sustained.

Held: Para 12 & 13

Further the impugned order in the
present case has also not taken into
account as to whether the government
order dated 22.10.2002 is a direction
issued by the State Government as
contemplated under section 12 of the
1976 Act read with section 41 of the U.P.
Urban Planning and Development Act or
not.

The provisions under which, exemption
of a land acquired under the Land
Acquisition Act can be granted, is section
48 of the Land Acquisition Act. The land
can
be
excluded
from
acquisition
proceeding by taking resort to the
notification in the official Gazette under
section 48 which provides that such an
exemption can be made where the
possession of the land has not been
taken over. In view of the aforesaid
position, no instructions issued by the
State Government either in the shape of
a
government
order
or
any
other
executive instructions can be pressed
into service for exempting the land
without taking recourse to section 48.
Case law discussed:
(1988) 1 SCC-63

(Delivered by Hon'ble R.P. Misra, J.)

1. The present writ petition has been
filed questioning the legality of the order
dated 11.10.2004. Annexure-11 to the
writ petition, on the ground that the
reasons
given
for
rejecting
the
representation suffer from manifest error
of law inasmuch as the respondent-State
Government has failed to take into
consideration the provisions of Sections 6
and 12 of the U.P. Industrial Area
Development Act, 1976 and Section 41 of
the
U.P.
Urban
Planning
and
Development Act, 1973.

2. We have heard Sri Rakesh
Pandey, learned counsel for the petitioner,
learned Standing Counsel for respondent
nos. 1,2 and 3 and Sri Anurag Khanna,
learned counsel for respondent no 4.
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3. The matter was taken up by us on
2.12.2004 on which date a request was
made by the learned Standing Counsel
for receiving instructions and then the
matter was taken up on 8.12.2004,
10.12.2004
and
finally
heard
on
13.12.2004 with the consent of the
learned counsel for the parties.

4. Having heard the learned counsel
for the parties, we are of the opinion that
the present matter can be disposed of on a
very short question as to whether non
consideration of the relevant provisions as
referred to herein above vitiate the order
or not.

5. Learned counsel for the petitioner
has urged that the representation of the
petitioner was to be considered in the
light of the judgment of this Court dated
23.4.2004 and that the petitioner was
entitled to get the land and constructions
exempted to the extend as indicated in the
government order dated 22.10.2002 and
the decisions rendered by the Apex Court
in this regard.

6. In reply to the submissions of the
learned counsel for the petitioner, Sri
Anurag Khanna, learned counsel for the
respondent has urged that the impugned
order clearly records that the petitioner is
not entitled to any such benefit inasmuch
as the benefit is not available to the
petitioner in view of Khodaiji Committee
report as the petitioner's society was
constituted in the year 1982. Learned
counsel for the respondent has further
urged that the State Government has,
while disposing of the representation,
taken a decision to the effect that the
government order dated 22.10.2002 is not
applicable
inasmuch
as
the
said
government order applies only with
regard to the development authority
constituted under the U.P. Urban Planning
Development Act, 1973 and not to the
Industrial Development Authority under
the 1976 Act. He, therefore, submits that
no ground for interference is made out
with the impugned order. Sri Khanna has
placed reliance on the decision of the
Apex
Court
rendered
in
Kendriya
Karamchari Sahkari Grih Nirman Samiti
Ltd.
and
another Vs. New
Okhla
Industrial Development Authority and
others reported in (1988) 1 SCC. 63 with
particular reference to paragraph 12 of the
said decision.

7. Upon having examined the rival
contentions, we find it necessary to quote
sections 6 and 12 of the U.P. Industrial
Area Development Act 1976 herein
under:-

"6.Functions of the Authority-
(1) The object of the Authority shall
bed to secure the planned development of
the industrial development areas.
(2)
Without
prejudice
to
the
generality of the objects of the Authority,
the Authority shall perform the following
functions-
(a) to acquire land in the industrial
development area, by agreement or
through proceedings under the Land
Acquisition Act, 1894 for the purpose
of this Act;
(b) to prepare a plan for the development
of the industrial development area;
(c) to demarcate and develop sites for
industrial,
commercial
and
residential purposes according to the
plan;
(d) to
provide
infra-structure
for
industrial, commercial and residential
purposes;
(e) to provide amenities;
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Shivalik Sahkari Avas Samiti V. State of U.P. and others
213
(f) to allocate and transfer either by way
of sale or lease or otherwise plots of
land for industrial, commercial or
residential purposes;
(g) to regulate the erection of buildings
and setting up of industries; and
(h) to lay down the purpose for which a
particular site or plot of land shall be
used,
namely
for
industrial
or
commercial or residential purpose or
any other specified purpose in such
area.

"12.
Applications
of
certain
provisions of President's Act XI of
1973- The provisions of Chapter VII and
sections 30, 32,40,41, 42, 43, 44, 45, 46,
47, 49, 50, 51, 53 and 58 of the Uttar
Pradesh
Urban
Planning
and
Development Act, 1973, as re-enacted
and modified by the Uttar Pradesh
President's
Act
(Re-enactment
with
Modifications) Act, 1974, shall mutatis
mutandis apply to the Authority with
adaptation that-

(a) any reference to the aforesaid Act
shall be deemed to be a reference to
this Act;
(b) Any reference to the Authority
constituted under the aforesaid Act
shall be deemed to be a reference to
the Authority constituted under this
Act; and
(c) any reference to the Vice-Chairman
of the Authority shall be deemed to
be a reference to the Chief Executive
Officer of the Authority."

8. A perusal of Section 6(2) (c) and
(d) would indicate that the industrial area
constituted under 1976 Act has the
authority
to
secure
the
planned
development of an area for " industrial,
commercial and Residential" purpose. A
perusal of Section 12 indicates the
application of Section 41 of the U.P.
Urban Planning and Development Act,
1973 which is quoted herein below: -

"41. Control by State Government-
(1) The [Authority, the Chairman or
the Vice-Chairman] shall carry out such
directions as may be issued to it from time
to time by the State Government for the
efficient administration of this Act.
(2) If in, or in connection with, the
exercise of its powers and discharge of its
function by the [Authority, the Chairman
or the Vice-Chairman] under this Act any
dispute arises between the [ Authority, the
Chairman or the Vice-Chairman] and the
State Government the decision of the
State Government on such dispute shall
be final.
(3) The State Government may, at
any time, either in its own motion or on
application made to it in this behalf, call
for the records of any case disposed of or
order passed by the [Authority, or the
Chairman] for the purpose of satisfying
itself as to the legality or property of any
order passed or direction issued and may
pass such order or issue such direction in
relation thereto as it may think fit.
Provided that the State Government
shall not pass an order prejudicial to any
person without affording such person a
reasonable opportunity of being heard.
[(4) Every order of the State
Government made in exercise of the
powers conferred by this Act shall be
final and shall not be called in question in
any court.]"

9. A perusal of the aforesaid sections
and a conjoint reading thereof clearly
indicates that the State Government has
power to control such authorities and has
also power to issue directions.
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INDIAN LAW REPORTS ALLAHABAD SERIES
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The question, therefore, is as to
whether the government order dated
22.10.2002 is applicable to the respondent
no. 4- authority or not in the light of the
aforesaid provisions.

10. A perusal of the impugned order
indicates that the State Government while
passing the impugned order has not at all
considered the impact of the applicability
of the aforesaid sections. The State
Government has simply recorded its
conclusion that the government order is
not at all applicable without referring to
the aforesaid provisions In view of the
aforesaid situation the impugned order is
vitiated
and,
therefore,
the
matter
deserves to be remitted back to the State
Government for consideration of the
matter afresh in the light of the
observations made herein.

11. The contention of the learned
counsel for the respondent, on the basis of
paragraph 12 of the decision in Kendriya
Karamachari Sahkari case (supra), cannot
be accepted, inasmuch as in the instant
case the government order is not qualified
by the words " as far as may be " as
compared to the government order which
was in question in the aforesaid case
before the Apex Court. Thus, there is a
clear distinction between the government
order which was being considered by the
Apex Court in Kendriya Karamachari
Sahkari case (supra) and the present
government order. Hence the aforesaid
argument of the learned counsel for the
respondent cannot be accepted. It was on
account of the specific use of the words "
as far as may be " that the Apex Court
took a view that the directions contained
in the government order in question
therein were not mandatory.

12. Further the impugned order in
the present case has also not taken into
account as to whether the government
order dated 22.10.2002 is a direction
issued by the State Government as
contemplated under section 12 of the
1976 Act read with section 41 of the U.P.
Urban Planning and Development Act or
not.

13. There is yet another aspect
which has also to be taken into
consideration by the State Government
while taking a decision. The provisions
under which, exemption of a land
acquired under the Land Acquisition Act
can be granted, is section 48 of the Land
Acquisition Act. The land can be
excluded from acquisition proceeding by
taking resort to the notification in the
official Gazette under section 48 which
provides that such an exemption can be
made where the possession of the land has
not been taken over. In view of the
aforesaid position, no instructions issued
by the State Government either in the
shape of a government order or any other
executive instructions can be pressed into
service for exempting the land without
taking recourse to section 48. Further
once a sanctioned plan for planned
development has been finalized the same
amounts to enforcement of statutory
provisions and which cannot be deviated
or modified with the aid of executive
instructions. The aforesaid proposition
needs to be examined by the State
Government while deciding such an issue.

14. A perusal of the facts and
circumstances of the case as well as the
law applicable in the matter, it is clearly
evident that the impugned order does not
take
into
consideration
the
factors
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1All] State of U.P. V. The Presiding Officer, Labour Court II), U.P. Meerut and another
215
 enumerated herein above and in the
absence of any such consideration and
recording of reasons accordingly, the
impugned order cannot be sustained and
is liable to be set aside.

15. Accordingly, we quash the order
dated 11.10.2004 with a direction to the
respondent no. 1 to reconsider the matter
again in the light of the observations
made herein above and also taking into
account
all
such
relevant
matters
pertaining to the applicability of the
government order dated 22.10.2002 in
the case of the petitioner.

16. The writ petition is, accordingly
allowed. The impugned order dated
11.10.2004 is quashed with a direction to
the respondent no. 1 to consider the
matter afresh in the light of the
observations made herein above and in
accordance with law within a period of
three months from the date of presentation
of a certified copy of the order before
him.
Petition allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 9626 of 2001

State of U.P.

 ...Petitioner
Versus
The Presiding Officer, Labour Court (II),
U.P., Meerut and another ...Respondents

Counsel for the Petitioner:
S.C.

Counsel for the Respondents:
Sri Y.K. Sinha
S.C.

U.P. Industrial Dispute Act 1947-Section
6-A-readwith U.P. Industrial Dispute
Rules
1957-Rule-16-Setting
a
sideexparte
award-passed
on
1.10.97Published 1.6.98- became inforceable on
1.7.98-No application filed either before
the Labour Court or before the Civil court
prior 1.7.9-held-Labour Court became
functus office.

Held: Para 7

In the instant case admittedly the order
to proceed ex-parte was passed on
1.10.1997 and the award was published
on 1.6.1998. According to Section 6-A of
the Industrial Disputes Act it became
enforceable on 1.7.1998. Admittedly also
the application to recall the ex-parte
order was not filed and has neither been
challenged before the Labour Court nor
in the writ petition before this Court. The
application for restoration has therefore
been filed after about three months from
the date of enforcement of the award.
The Labour Court became functus officio
on 1.7.1998; hence the application for
recall of the order filed on 26.9.1998 was
not applicable.
Case law discussed:
1983 UPLBEC-56 (FB)
1984 (48) FLR 606

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the petitioner
and Sri Y.K.Sinha for the contesting
respondent.

2. This writ petition has been filed
by the State of U.P. challenging the
validity and correctness of the impugned
ex-parte award dated 13.11.1997 as well
as of the impugned order dated 5.8.2000
passed by the Labour Court dismissing
the application moved by the petitioner
for recall of the aforesaid ex-parte award
which was published on 1.6.1998 and