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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3265 OF 2013   (@SPECIAL LEAVE PETITION (C) NO. 1343 OF 2009)

NEW OKHLA INDUSTRIAL  DEVELOPMENT AUTHORITY     … APPELLANT

VERSUS

SARVPRIYA SEHKARI AVAS SAMITI LTD. AND ANR.      …RESPONDENTS

WITH

CIVIL APPEAL NO.3266 OF 2013   (@SPECIAL LEAVE PETITION (C) NO. 23967 OF 2011)

NEW OKHLA INDUSTRIAL  DEVELOPMENT AUTHORITY     … APPELLANT

VERSUS

SHIVALIK SEHKARI AVAS SAMITI AND ORS.      …RESPONDENTS

J U D G M E N T  

CHANDRAMAULI KR. PRASAD, J.

New  Okhla  Industrial  Development  Authority,  

hereinafter referred to as “NOIDA”, in these special  

leave  petitions  filed  under  Article  136  of  the  

Constitution of India impugns the order dated 20th of

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June,  2008  passed  by  the  Allahabad  High  Court  in  

Civil  Misc.  Writ  Petition  No.  41065  of  2003  

(Sarvpriya Sahakari Avas Samiti Limited v. State of  

U.P.  through  Special  Secretary  &  Anr.)  and  order  

dated 15th of July, 2010 passed in Civil Misc. Writ  

Petition No. 67362 of 2005 (Shivalik Sahakari Avas  

Samiti  through  Secretary  v.  State  of  U.P.  through  

Principal Secretary & Ors.).  By those orders NOIDA  

has been directed to give benefit of Government Order  

dated  22nd of  October,  2002  to  each  of  the  writ  

petitioners, respondent no. 1 herein i.e. Sarvpriya  

Sahakari Avas Samiti Limited, hereinafter referred to  

as  “Sarvpriya”  and  Shivalik  Sahakari  Avas  Samiti,  

hereinafter referred to as “Shivalik”.

Leave granted.

As  direction  given  in  both  the  appeals  is  

identical and facts are similar, both have been heard  

together and are being disposed  of by this common  

judgment.   

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For the purpose of these appeals we have taken  

the  facts  from  the  appeal  arising  out  of  Special  

Leave  Petition  No.  1343  of  2009.   Sarvpriya  is  a  

registered Housing Cooperative Society and its claim  

is that most of its members are from the Indian Army,  

Border  Security  Force,  Air  Force,  Central  Reserve  

Police  Force,  Delhi  Police  and  other  Government  

Departments.   The  object  of  the  Sarvpriya  is  to  

provide  residential  accommodation  to  its  members.  

It  was  registered  in  the  year  1981.   Sarvpriya  

purchased  land  from  the  land  holders  during  the  

period 1981 to 1985 in the Village Wazidpur within  

Tehsil Dadri in the District of Ghaziabad from the  

funds contributed by its members.  During that period  

neither  Ghaziabad  Development  Authority  nor  NOIDA  

were  in  existence  and,  as  such,  the  layout  plan  

prepared by Sarvpriya was approved on 3rd of December,  

1982 by the Chief Town and Country Planner.  Later,  

an agreement was entered into between Sarvpriya and  

the District Magistrate, Ghaziabad, whereby Sarvpriya  

was allowed to carry out the development activities  

as per the layout plan within a period of two years.  

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While the aforesaid development activities were  

going on, the State Government, in exercise of its  

power  under  Clause  (d)  of  Section  2  of  the  U.P.  

Industrial  Area  Development  Act,  1976  declared  an  

area  of  748  acres  of  land  in  Village  Wazidpur  as  

industrial development area, which was to form part  

of the New Okhla Industrial  Development Area.  It  

included land belonging to Sarvpriya.  But, it seems  

that despite the aforesaid area having been declared  

as  an  industrial  development  area,  Sarvpriya  

continued to carry on the activities of colonization  

and illegal plotting.  Accordingly, by notice dated  

21st of September, 1994, NOIDA called upon Sarvpriya  

to  remove  the  unauthorized  construction  within  a  

stipulated time.  Sarvpriya replied to the aforesaid  

notice inter alia stating that it had developed the  

land and asserted its right for further development  

on  the  basis  of  the  sanction  order  and  terms  of  

agreement  between  it  and  the  District  Magistrate.  

Sarvpriya  also  chose  to  challenge  the  aforesaid  

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notice in a writ petition filed before the High Court  

but the challenge has ultimately failed.   

Sarvpriya  thereafter  wrote  to  the  State  

Government to either permit it to develop residential  

plots  or  to  allot  a  suitable  developed  plot.  

Sarvpriya also resorted to a proceeding before the  

Monopoly Restrictive Trade Practices Commission but  

the  same  was  dismissed.   While  the  request  of  

Sarvpriya for allotment of a suitable developed plot  

was pending, in response to a notice dated 24th of  

July, 1999, Sarvpriya by its representation dated 28th  

of July, 1999 requested to settle the dispute outside  

the court by either allowing it to retain the present  

site  or  to  allot  a  suitable  alternative  developed  

piece of land to enable its members to raise housing  

colony for their residence.  It seems that thereafter  

Sarvpriya  wrote  to  NOIDA,  from  time  to  time,  for  

allotment of a suitable alternative developed piece  

of plot relying on the recommendation of a Committee  

known as Khodaiji Committee as also the order of the  

State Government in the Department of Housing dated  

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22nd of October, 2002.  When all these did not yield  

any result, it filed CMWP No.45613 of 2002 (Sarvpriya  

Sahakari  Avas  Samiti  Ltd.  v.  Chairman,  NOIDA  

Authority) and the High Court by its order dated 25th  

of October, 2002 directed  NOIDA to dispose of its  

representation within a stipulated time.  The NOIDA  

by  its  order  dated  4th of  July,  2003  rejected  

Sarvpriya’s  representation  and,  while  doing  so,  

observed that it had purchased the land in the year  

1981-1982  and  on  the  recommendation  of  Khodaiji  

Committee lands were allotted to societies which were  

in  existence  till  the  year  1976  in  the  area  and,  

accordingly, it was observed that the recommendation  

made  by  the  Khodaiji  Committee  shall  not  be  

applicable to Sarvpriya.   

Being  unsuccessful  in  persuading  the  NOIDA  to  

provide it alternative suitable plot, it filed a writ  

petition, which has given rise to the impugned order,  

for quashing the order dated 4th of July, 2003 and  

further for the issuance of a writ in the nature of  

mandamus commanding NOIDA to allot 40% of the land  

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acquired from Sarvpriya to it in Sector Nos. 134-135  

or in any nearby sector of NOIDA.   

NOIDA contested the claim of Sarvpriya inter alia  

stating that the benefit of Government Order dated  

22nd of October, 2002 applies to Avas Vikas Parishad  

and  Development  Authority  constituted  under  the  

provisions  of  U.P.  Urban  Planning  and  Development  

Act, 1973.  It was further pointed out that the NOIDA  

has  been  constituted  under  the  provisions  of  U.P.  

Industrial Area Development Act, 1976 and, hence the  

Government Order referred to above shall not enure to  

the benefit of Sarvpriya.  The submission of NOIDA  

did  not  find  favour  and  the  High  Court  by  the  

impugned order in the case of Sarvpriya quashed the  

order dated 4th of July, 2003 and remitted the matter  

back to NOIDA with direction to give the benefit of  

the Government Order dated 22nd of October, 2002 to  

Sarvpriya within a stipulated time.  While doing so,  

the High Court observed as follows:

“…….The  further  explanation  of  the  respondents are that Khodaiji Committee,  

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which  is  constituted  for  the  purpose,  submitted the report that the benefit of  re-allotment  or  fresh  allotment  of  the  land to such societies will be available  to  the  societies  which  were  registered  before 1976.  The argument is that benefit  of  Khodaiji  Committee  report,  which  is  otherwise  available  to  the       Co- operative  Housing  Societies,  cannot  be  given  to  the  petitioner-society  only  because  the  petitioner-society  is  not  registered  before  1976.   We  have  gone  through the report of Khodaiji Committee  and we do not find any such observation as  is  attributed  by  the  respondent  to  the  aforesaid report.  The report simply talks  about the Co-operative Housing Societies  irrespective of the year of registration.  The petitioner’s society is definitely a  registered  Housing       Co-operative  Society.  Therefore, the denial of benefit  of  Khodaiji  Committee  report  to  the  petitioner  is  wholly  arbitrary  and  discriminatory in as much as the benefit  of this report have been extended by the  respondent to other Housing Co-operative  Societies……”  

Shivalik  claims  to  have  been  registered  as  

Housing Cooperative Society on 24th March, 1982.  It  

asserts that it had purchased the land by registered  

sale deeds between the years 1990 to 1996 in Village  

Chhajarsi  within  Tehsil  Dadri  in  the  District  Of  

Gautam Budh Nagar.

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In the case of Shivalik, the High Court directed  

to consider its claim observing that the Government  

Order dated 22nd of October, 2002 shall be applicable  

to NOIDA.  While doing so, it observed as follows:

“A  perusal  of  Section  12  aforesaid  shows that Section 41 has been adopted in  toto  and  adoption  of  Section  is  by  incorporation.  Clause (c) of Section 12  clarifies that in a reference to the Vice- Chairman of the authority shall be deemed  to be a reference to the Chief Executive  officer of the authority (created under  the  U.P.  Area  Development  Act).   The  impugned Government Order dated 22.10.2002  has been issued after the enforcement of  both the above Acts.  The Government Order  has been addressed to the Vice-Chairman of  the  Development  Authorities  U.P.   That  will  mean  that  the  reference  is  itself  also  addressed  to  the  Chief  Executive  Officer  of  the  New  Okhla  Industrial  Development Authority by virtue of clause  (c) of Section 12 of U.P. Industrial Area  Development Act, 1976.  Thus it is beyond  doubt  that  the  Government  Order  is  applicable  to  the  New  Okhla  Industrial  Development  Authority.   The  Government  Order in which various reasons have been  given  for  holding  that  the  Government  Order  is  not  applicable  to  New  Okhla  Industrial  Development  Authority  is  contrary to the provisions of clause (c)  of Section 12 of the U.P. Industrial Area  Development  Act,  1976.   Therefore,  the  order  dated  14/8/2005  is  quashed.   The  Government Order dated 22.10.2002 is held  to  be  applicable  on  the  New  Okhla  Industrial Development Authority, created  

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under the U.P. Industrial Area Development  Act if it is subsisting……..”   

  (underlining ours)

As regards claim of Sarvpriya and Shivalik that  

Government  Order  dated  22nd of  October,  2002  shall  

also  govern  their  case,  the  plea  of  the  State  

Government is that there are two kinds of authorities  

which are constituted under two different enactments,  

namely, the U.P. Urban Planning and Development Act,  

1973 and the U.P. Industrial Area Development Act,  

1976.   According  to  the  State  Government,  the  

authorities constituted under U.P. Urban Planning and  

Development  Act  function  under  the  overall  

administrative control of the Department of Housing  

and Urban Planning whereas the Industrial Development  

Authorities like NOIDA are constituted under the U.P.  

Industrial  Area  Development  and  it  is  not  within  

administrative control of the Department of Housing  

and  Urban  Development.  In  fact,  the  Industrial  

Development Department of the State Government is its  

administrative department.

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Mr. L.N. Rao, Senior Advocate appearing on behalf  

of  the  appellant  submits  that  neither  Khodaiji  

Committee’s recommendation nor the order of the State  

Government dated 22nd of October, 2002 govern the case  

of Sarvpriya and Shivalik and, therefore, the order  

passed by the High Court is vulnerable.  Mr. A.K.  

Ganguli, Senior Advocate, Mr. Jitendra Mohan Sharma,  

Advocate  representing  Sarvpriya  and  Shivalik  

respectively, however, contend that the functions of  

the  Development  Authority  and  the  Industrial  

Development  Authority  being  the  same,  the  

notification  of  the  State  Government  in  the  

Department  of  Housing  dated  22nd of  October,  2002  

shall also apply to NOIDA and the High Court did not  

commit any illegality by directing for consideration  

of their case in the light of the aforesaid order.  

They also submit that there is no justification to  

deny  the  benefit  of  Khodaiji  Committee’s  

recommendation  to  both  the  societies.   Mr.  S.R.  

Singh,  Senior  Advocate  appearing  on  behalf  of  the  

State  of  U.P.  is  emphatic  that  neither  Khodaiji  

Committee’s recommendation nor the Government Order  

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dated  22nd of  October,  2002  issued  by  the  Housing  

Department shall have any bearing for deciding the  

claim of both the societies.   

In  view  of  the  rival  submissions,  the  first  

question  falling  for  our  determination  is  as  to  

whether  the  Khodaiji  Committee’s  Report  covers  the  

case  of  the  two  societies  herein.   It  seems  that  

various  cooperative  housing  societies  which  had  

purchased land falling in the industrial development  

area  of  NOIDA  represented  for  allotment  of  land.  

NOIDA  in  its  15th Meeting  held  on  19th June,  1977  

resolved to constitute a sub-Committee to negotiate  

with the representatives of the various cooperative  

housing  societies.   Mr.  B.J.  Khodaiji,  the  then  

Commissioner  and  Secretary,  Housing  and  Urban  

Development  Department  of  the  State  Government  

besides  other  officers  constituted  the  said  

Committee.  The report of the Khodaiji Committee has  

been placed before us.  From the report, it appears  

that  sub-Committee  held  several  meetings  and  made  

various recommendations including the following, with  

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which we are concerned in the present appeals.  The  

recommendations so made read as follows:

“2. Only one plot per member should be  given  to  members  of  these  sixteen  Cooperative Housing Societies.

3. Only  those  members  of  Cooperative  Housing Societies will be entitled to get  plots in NOIDA who were bonafide members  as  on  1.5.1976  which  shall  be  duly  certified by a competent Authority in this  respect i.e. Dy. Registrar,        Co- operative  Housing  Societies,  Meerut  Division.”

From the aforesaid it is evident that the  

Committee made recommendation for allotment of one  

plot per member to the members of sixteen specified  

cooperative housing societies and, while doing so,  

it further observed that only those members shall  

be entitled to get plots who were bonafide members  

as on 1st of May, 1976.  Both the societies with  

which we are concerned in the present appeals do  

not  find  place  in  the  recommendation  of  the  

Khodaiji  Committee  and  further,  it  is  not  their  

case that they were even existing on 1st of May,  

1976. It seems that the attention of the High Court  

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was not drawn to the aforesaid paragraphs of the  

Report of  the  Khodaiji Committee  and, therefore,  

the High Court fell into error in observing that  

the  “report  simply  talks  about  the  Cooperative  

Housing  Societies  irrespective  of  the  year  of  

registration”.  The passage from Khodaiji Committee  

Report quoted above makes it abundantly clear that  

“only  those  members  of  Cooperative  Housing  

Societies will be entitled to get plots in NOIDA  

who were bonafide members as on 1.5.1976”.  If the  

society  did  not  exist  on  that  date  there  is  no  

question of their being members of the society on  

the date specified.  In that view of the matter,  

there is no escape from the conclusion that the  

recommendation  of  Khodaiji  Committee  shall  not  

enure to the benefit of the two societies.  Hence,  

we are of the opinion that the High Court erred in  

holding  that  the  denial  of  benefit  of  Khodaiji  

Committee’s  Report to  Sarvpriya  is  arbitrary  and  

discriminatory.  We, thus, have no option but to  

disapprove  this  line  of  reasoning  of  the  High  

Court.

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Now we proceed to consider the second question  

required  to  be  answered  in  these  appeals  i.e.  

whether  NOIDA  is  bound  by  the  Government  Order  

dated  22nd of  October,  2002.   To  answer  this  

question  it  shall  be  appropriate  to  examine  the  

scheme  of  Uttar  Pradesh  Urban  Planning  and  

Development Act, 1973 (President’s Act No. 11 of  

1973) and Uttar Pradesh Industrial Area Development  

Act, 1976 (U.P. Act No. 6 of 1976).  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  

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  

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residential  purposes  as  also  to  allocate  and  

transfer  either  by  way  of  sale  or  lease  or  

otherwise,  plots  of  land  for  the  aforesaid  

purposes.   President’s  Act  No.  11  of  1973  is  

another  Act  aimed  to  provide  for  the  planned  

development  of  certain  areas  of  the  State  and  

Section 3 and 4 thereof confer power on the State  

Government to declare an area to be developed as a  

development  area  and  constitute  development  

authority for that area.  Section 41 of this Act  

vests  power  on  the  State  Government  to  issue  

direction for “efficient administration of the Act”  

and casts duty upon the development authority, its  

Chairman  or  the  Vice-Chairman  to  carry  out  such  

direction.  It reads as follows:

“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  functions  by  the  Authority,  the  Chairman or the Vice-Chairman under this  Act  any  dispute  arises  between  the  Authority,  the  Chairman  or  the  Vice-

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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 on 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 Chairman for  the purpose of satisfying itself as to the  legality or propriety 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.”

Section 12 of U.P. Act No. 6 of 1976 provides for  

application  of  certain  provisions  of  President’s  

Act No. 11 of 1973, including Section 41 and same  

reads as follows:

“12.Applications of certain provisions of  President’s Act XI of 1973.- The provision  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  

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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.”

It is relevant here to state that in order to  

come to the conclusion that the order of the State  

Government in the Housing Department dated 22nd of  

October, 2002 would apply to the NOIDA, it has been  

observed that such an order has been passed by the  

Housing Department in exercise of the power under  

Section 41 of the President’s Act No. 11 of 1973  

and in view of its adaption by section 12 of U.P.  

Act No. 6 of 1976, the Government Order shall apply  

to NOIDA.  President’s Act No. 11 of 1973 is an  

earlier Act whereas U.P. Act No. 6 of 1976 is a  

later Act.  As is well known, incorporation of the  

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provisions of the earlier Act into a later Act is a  

legislative  device  adopted  for  the  sake  of  

convenience  and  in  order  to  avoid  verbatim  

reproduction of the provisions of the earlier Act  

into the later Act.  When such a legislation is  

made  by  incorporation,  the  provisions  so  

incorporated become part and parcel of the later  

Act.   In  other  words,  those  provisions  are  

considered  bodily  transposed  into  it.  Its  legal  

effect  is  that  those  sections  which  have  been  

incorporated  in  the  later  Act  had  been  actually  

written in it with pen.  In view of the aforesaid,  

Section 41 of President’s Act No. 11 of 1973 shall  

be deemed to have been incorporated in U.P. Act No.  

6  of  1976  with  adaptation  and  the  authority  

constituted under President’s Act No. 11 of 1973  

shall be deemed to be in reference to an authority  

constituted under U.P. Act No. 6 of 1976 and the  

Vice-Chairman  of  the  authority  under  President’s  

Act No. 11 of 1973 would be the Chief Executive  

Officer of the Authority under the U.P. Act No. 6  

of 1976.  But will that mean that the order of the  

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State  Government  in  exercise  of  the  power  under  

Section 41 of President’s Act No. 11 of 1973 shall  

apply  to  the  Industrial  Development  Authorities  

constituted under Section 6 of U.P. Act No. 6 of  

1976?  In our opinion, the power exercised under  

Section 41 of President’s Act No. 11 of 1973 shall  

not be deemed to be an order under Section 12 of  

the U.P. Act No. 6 of 1976 merely on the ground  

that Section 41 has been included in the Act by  

incorporation  which,  as  observed  earlier,  is  a  

device adopted for the sake of convenience.  The  

order dated 22nd of October, 2002 has been issued by  

the Housing Department of the State Government and  

it has been addressed to Housing Commissioner, U.P.  

Awas  Vikas  Parishad,  Vice-Chairman  of  all  

Development  Authorities  and  Managing  Director  of  

the U.P. Cooperative Awas Sangh but not addressed  

to  the  Industrial  Development  Authorities.   The  

Vice-Chairman of the Development Authorities cannot  

be read to mean the Chief Executive Officer of the  

Industrial Development Authority constituted under  

U.P. Act No. 6 of 1976.  It needs no emphasis that  

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such  an  order  can  be  passed  in  respect  of  the  

Industrial Development Authority in view of Section  

12 of U.P. Act No. 6 of 1976 by such Departments of  

the  State  Government  which  have  administrative  

control over the Industrial Development Authority.  

However, we hasten to add that in case such a power  

is  exercised  by  such  a  Department  of  the  State  

Government  it  shall  have  no  bearing  on  the  

Development  Authorities  constituted  under  the  

President’s Act No. 11 of 1973.  The decision taken  

by  one  administrative  department  concerned  with  

Industrial Development Authority shall not apply to  

the  Development  Authorities  within  administrative  

control  of  another  Department  of  the  State  

Government  or  vice  versa  unless  a  conscious  

decision is taken to apply the same to both the  

categories  of  authorities  in  case  the  rules  of  

executive business of the State so permits.  

In view of what we have observed above there is  

no  doubt  in  our  mind  that  the  Government  Order  

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referred to above shall not be applicable to the  

appellant authority.   

Both the grounds given by the High Court while  

issuing  the  impugned  direction,  in  our  opinion,  

being unsustainable in law, same can not be allowed  

to stand.

In the result, we allow these appeals, set aside  

the impugned judgments and orders of the High Court  

and  dismiss  the  writ  petitions,  but  without  any  

order as to costs.

      ……………………..………………………………..J.  (CHANDRAMAULI KR. PRASAD)

 …….….……….………………………………..J.                   (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI, APRIL 11, 2013  

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