1. Heard Sri Nikhil Agrawal learned counsel for the petitioner, Sri Ajay Kumar Mishra learned Advocate General and Sri M.C. Chaturvedi learned Senior Counsel assisted by Sri Sudhanshu Srivastava and Sri Bharat Pratap Singh learned Additional Chief Standing Counsels for the State respondents and Sri Nipun Singh learned counsel appearing for the respondent-Avas Evam Vikas Parishad.
2. The present petition is directed against the order dated 21.6.2022 passed by the Chief Secretary, Government of U.P., insofar as it relates to the conclusion drawn in the Condition nos. (ii) and (iii) of the order impugned. The consequential letter dated 15.9.2022 issued by the Manager Property, on behalf of the Commissioner (Housing), U.P. Avas Evam Vikas Parishad, Ghaziabad is subject matter of challenge in the connected Writ-C No. 29931 of 2022 (M/S Gaursons India Ltd. vs. State Of U.P. And 3 Others).
3. The brief facts of the case relevant to address the controversy before us are:-
4. On a Writ Petition No. 19311 of 2020 (M/s Gaursons India Pvt. Ltd. vs. State of U.P. and 3 others) filed by the petitioner herein, pursuant to the judgment and order dated 16.12.2020 passed therein, the order impugned has been passed by the Chief Secretary, Government of U.P.
5. From a reading of the order impugned, it transpires that certain plots belonging to M/s Mohan Meakins Ltd. and M/s National Cereals Products Ltd. (hereinafter referred to as ‘the tenure holder firms’) for a total area of 19-5-10 Bigha (12.047 acres), were acquired for the scheme namely Vasundhara Yojna, Ghaziabad by U.P. Avas Evam Vikas Parishad under Sections 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. A Writ Petition No. 17372 of 1987 was filed by the tenure holders to challenge the acquisition. The acquisition notifications were quashed by the judgment and order dated 18.3.1993 passed by this Court. In SLP No. 22015 of 1994, a compromise had been arrived between the parties and an order dated 20.3.1995 was passed by the Apex Court incorporating the terms of the compromise. In compliance whereof, the exchange deed dated 24.9.2004 was executed between Avas Evam Vikas Parishad and the tenure holder firms. In clause (4) of the said exchange deed, a condition was put that the land adjusted under exchange would be utilized by the tenure holder firms for construction of water purification plant and related purposes, whereas the remaining land would be kept vacant. It is undisputed that the said exchange deed was executed between the tenure holder firms and Avas Evam Vikas Parishad, in lieu of acquisition of 12.047 acres of the land of the tenure holders by Avas Evam Vikas Parishad, which was quashed by the High Court. It may be noted that the Apex Court did not enter into the merits of the judgment under challenge because of the compromise.
6. The lands given in the aforesaid exchange deed were sold by the tenure holder firms in favour of the petitioner herein namely M/s Gaursons India Pvt. Ltd. vide sale deed dated 1.8.2005.
7. A dispute arose in the year 2005 with regard to allotment of Khasra No. 958 and 1454 to the tenure holder firms under the exchange deed dated 24.9.2004. It has come into light that the said plots were resumed by the District Magistrate, Ghaziabad by order dated 21.3.1994 for Hinden Bird Sanctuary.
8. It may be noted, at this juncture, that the nature of Khasra No. 948 as shown in the revenue records was ‘Lake’ whereas Khasra No. 1454 was a ‘Banjar’ land. The revision filed by Avas Evam Vikas Parishad against the resumption order of the District Magistrate dated 21.3.1994 was dismissed by the Commissioner, Meerut vide order dated 30.3.2009.
9. In the meantime, a writ petition was filed by the petitioner herein namely Writ Petition No. 31871 of 2006, with the relief to issue direction to the Avas Vikas Parishad to provide alternative land. By the interim order dated 13.6.2006, the Parishad was directed to decide the representation filed by the petitioner. On rejection of the representation vide order dated 27.7.2006, the petitioner herein filed Writ Petition No. 25091 of 2008, wherein it was noted that the dispute was between two departments of the State Government, which are instrumentalities of State. No third party or individual shall be made scapegoat who has invested huge sum and has purchased the land-in-question under a bonafide belief. It even by mistake or for any other reason, any Government Authority has allotted a disputed land to any person and it is ultimately detected, the land should be adjusted to some other place, as far as possible.
10. It was further noted therein that it was an admitted case of the Parishad that at the instance of the Parishad, the proceedings have been undertaken and the matter was pending before the State Government. A High level Committee has been constituted to consider and resolve the dispute.
11. The writ petition was, thus, disposed of vide judgment and order dated 8.11.2012 directing the petitioner to make a representation to the State Government ventilating its grievances and further the State Government was directed to decide the matter. The order under challenge therein was quashed for that reason.
12. In various meeting before the State Government, on a proposal given by Avas Evam Vikas Parishad, the exchange of the acquired land situated in Vasundhara Yojna Ghaziabad of 12.047 acres belonging to the original tenure holders, was agreed with another plot in Siddharth Vihar Yojna, Ghaziabad of the Avas Evam Vikas Parishad. It was resolved principally in the Board Meeting of the Parishad that the said plot would be allotted/given to the petitioner in exchange on payment of requisite fee including conversion charges. An exchange deed dated 25.1.2016 was executed between Avas Evam Vikas Parishad and the petitioner herein namely M/s Gaursons India Ltd and the land use exchange fee of Rs. 32,45,36,105/- was deposited by the petitioner with the Avas Evam Vikas Parishad.
13. It appears that on a Public Interest Litigation namely PIL No. 54096 of 2010 filed in relation to Khasra No. 948 and 1454, initially allotted to the tenure holder firms namely M/s National Cereals Products Ltd. and Mohan Meakins Ltd., it was noted by this Court that the land identified as Khasra No. 948 and 1454 which were resumed for a Bird Sanctuary were acquired by Avas Evam Vikas Parishad for a Housing project and in turn, were allotted to private persons. It was, thus, observed that once the land of Gram Sabha had been resumed for the purpose of establishing a Bird Sanctuary, it could not have been exchanged/ultimately sold to private builder. The action of the State in keeping silence in the matter for more than 7 years was considered alarming. The Chief Secretary, Government of U.P. was directed to summon the original record, both in the matter of resumption of the land of Gram Sabha and its exchange with the tenure holder firms and sale in turn to the petitioner herein. He was also required to examine the nature of the land in question prior to its resumption as well as the purpose for which the State had resumed the Gram Sabha land in exercise of power under Section 117(6) of the U.P.Z.A.&L.R. Act and further as to how such land could be exchanged and handed over to private builders. The Chief Secretary was directed to fix responsibility of all the officers including that of the Collector, Ghaziabad and Officers of U.P. Avas Evam Vikas Parishad, U.P. involved in the episode and initiate suitable action both criminal as well as civil, if required.
14. It is further reflected from the order impugned that an enquiry was initiated by the Chief Secretary by constituting a three member committee by order dated 25.7.2017 passed in compliance of the order of this Court in the PIL. The District Magistrate, Ghaziabad was directed to initiate proceeding to cancel the resumption order in view of the report of the forest department. By the order dated 10.9.2017 in continuance of the letter dated 9.9.2017 of the Principal Secretary, Revenue, the resumption order dated 21.3.1994 of 11 Gatas (total area 77-2-0) (including Khasra No. 948 and 1454) of village Arthala for Bird Sanctuary was cancelled. The name of Avas Evam Vikas Parishad had been restored in the revenue records and the plot no. 948 has been entered as ‘Lake’ in the special column of the revenue record, giving responsibility to the Avas Evam Vikas Parishad to maintain the same as it is.
15. The three members Committee which had been constituted by the Government Order dated 27.7.2017 to make enquiry into the matter of allotment of land to the tenure holder firms namely M/s National Cereals Products Ltd. and M/s Mohan Meakins Ltd., had submitted its report. Pursuant thereto, the Principal Secretary, Avas Evam Shahri Niyojan Anubhag-2 had taken a decision communicated in his letter dated 13.9.2017, noticing therein that the exchange deed dated 24.9.2004 between Avas Evam Vikas Parishad and tenure holder firms for exchange of 12.047 acres of land, was with the condition to use the allotted land for water purification plant. The said fact was also noted by the Apex Court in its order dated 20.3.1995 passed on the compromise between the parties. The land allotted in exchange was illegally sold in favour of the petitioner herein namely M/s Gaursons India Pvt. Ltd. in order to obtain illegal benefits out of the exchanged land in violation of the order of the Apex Court. The doubt has, thus, been cast on the legality of the sale deed dated 1.8.2005 executed by the tenure holders in favour of the petitioner herein. The direction was issued to initiate enquiry about the guilty firms and their representatives and lodge first information report against them.
16. The order dated 25.7.2017 passed by the Chief Secretary had, thus, been complied with in the following manner:-
(i) By the order dated 10.9.2017, the District Magistrate, Ghaziabad had cancelled the resumption order dated 21.3.1994;
(ii) The acquired land had been entered in the name of Avas Evam Vikas Parishad in the revenue records. The land in Khasra No. 948 of village Arthala had been entered as land of ‘Lake (Jheel)’ in the revenue records. The direction was issued to lodge first information report against the guilty firms and their representatives;
(iii) The constructions being raised M/s Gaursons India Ltd on the spot were stopped with the consequential order passed by the Avas Evam Vikas Parishad;
17. The Public Interest Litigation No. 54096 of 2010 was disposed of with the order dated 9.1.2018 noticing that the Government had withdrawn resumption of Gata numbers mentioned in the prayer clause therein which were no more reserved for Arthala Bird Sanctuary.
18. Further in compliance of the judgment and order dated 16.12.2020 passed by this Court in Writ Petition No. 19311 of 2020 filed by the petitioner herein, a meeting was held on 16.12.2021 wherein the contents of the sale deed dated 1.8.2005 were noted wherein the aforesaid lands allotted to the original tenure holders in exchange, sold in favour of the petitioner herein, has been mentioned as “Avasiya”.
19. Reiterating the above noted facts, it was further noted in the order impugned that in the subsequent exchange deed executed in favour of the petitioner herein namely M/s Gaursons India Ltd. by the Avas Evam Vikas Parishad, alternative land in Siddharth Vihar Avasiya Yojna was allotted to the petitioners. After getting a map sanctioned, 2476 houses and 450 EWS/LIG houses have been constructed. M/s Gaursons India Ltd sold the houses to home buyers and third party rights have been created.
20. Taking note of the said situation, in order to maintain a win-win situation for every party, it was decided that:-
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21. The learned counsel for the petitioner herein argued that the order impugned dated 21.6.2022 has been passed by the Chief Secretary, Government of U.P. on extraneous consideration, while considering the letters dated 22.9.2020 and 6.10.2020 submitted by the petitioner herein through Avas Evam Vikas Parishad, to take a decision for allotment of 450 EWS and LIG houses constructed by the petitioner over the exchanged land, as per the sanctioned map by the Avas Evam Vikas Parishad. The prayers made by the petitioner in the aforesaid letters, as noted in the order impugned, were as under:-
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22. The order dated 16.12.2020 was passed by this Court in Writ Petition No. 19311 of 2020 filed by the petitioner wherein relief was sought to direct the Chief Secretary, Government of U.P. to take a decision on the representation of the petitioner dated 6.10.2020, which contained a prayer for providing the procedure for allotment of 450 EWS and LIG flats of the Siddharth Vihar Projects, which was constructed by the petitioner.
23. It was argued that the dispute relating to allotment of Khasra No. 948, which was a ‘Lake’ in favour of M/s National Cereals Products Ltd and M/s Mohan Meakins Ltd in lieu of acquisition of their land, had been brought to its logical end with the execution of the exchange deed dated 25.1.2016 by Avas Evam Vikas Parishad in favour of the transferee, i.e. the petitioner herein. The aspersion cast on the legality of the sale deed dated 1.8.2005 executed in favour of the petitioner herein by the tenure holder firms is wholly uncalled for. The Chief Secretary, while passing the order impugned, had travelled beyond the extent of the exchange deed dated 25.1.2016, which is a registered deed, in respect of Plot No. 8/BS-01, admeasuring 12.047 Acres situated in Siddharth Vihar Project, Sector-8, Ghaziabad. The constructions were raised by the petitioner over the said plot after getting the map sanctioned from the Avas Evam Vikas Parishad, Conversion charges to the tune of Rs. 32 Crores and odd had been paid for conversion of the land use for housing purposes. The registered exchange deed dated 25.1.2016 between the parties is a valid document which determines the right, title and interest of the parties namely the Avas Evam Vikas Parishad viz-a-viz the petitioner with respect to the land subject matter of the deed. No exception can be taken to the exchange deed dated 25.1.2016 which decides the terms and conditions of the settlement between the petitioner and Avas Evam Vikas Parishad. The discussion with regard to misrepresentation on the part of the petitioner or the vendors namely M/s National Cereals Products Ltd. and M/s Mohan Meakins Ltd., are wholly extraneous in nature.
24. Learned Advocate General appearing on behalf of the State respondents as also U.P. Avas Evam Vikas Parishad, by placing various documents before us submitted that it was a case where connivance of the officers of U.P. Avas Evam Vikas Parishad and State machinery cannot be ruled out. However, the fact remains that the original exchange deed dated 24.9.2004 executed between Avas Evas Vikas Parishad in favour of M/s National Cereals Products Ltd. and M/s Mohan Meakins Ltd. was with regard to Khasra No. 948 and 1454 situated in Village Arthala, District Ghaziabad with the specific condition that the said lands shall be used for construction of water purification plant and shall be kept vacant. The allottees namely M/s National Cereals Products Ltd. and M/s Mohan Meakins Ltd., had illegally sold the same in favour of the petitioner herein namely M/s Gaursons India Pvt. Ltd making a false statement in the sale deed dated 1.8.2005 about the nature of the said land being for housing purposes.
25. It was argued that as in the initial exchange deed dated 24.9.2004, there was a condition to use the allotted land for water purification plant, the petitioner could not have utilized the land allotted under the exchange deed dated 25.1.2016 for the purposes other than that mentioned in the original exchange deed dated 24.9.2004. As a result of it, the order passed by the Chief Secretary dated 21.6.2022 cannot faulted with.
26. We find inherent fallacy in the above arguments of the State and Avas Evam Vikas Parishad. The terms and conditions of the original exchange deed dated 24.9.2004 cannot be pressed into service to decide the obligation of the petitioner with reference to the land which is subject matter of the exchange deed dated 25.1.2016.
27. We may record, at the outset, that the Avas Evam Vikas Parishad had committed illegality in offering the lands in Khasra No. 948 and 1454 of Village Arthala to the original tenure holders, in exchange of their lands which were acquired under the notifications dated 26.6.1982 and 19.2.1987 issued under Sections 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 and the the acquisition of which was set aside by this Court vide judgment and order dated 18.3.1993. In the challenge before the Apex Court in Special Leave Petition (C) No. 22015 of 1994 filed by Avas Evam Vikas Parishad, a compromise had been arrived between the parties. The terms of the agreement entered into between the parties, on the basis of which SLP was decided by the Apex Court, are noted in the judgment and order dated 20.3.1995, which is relevant to be extracted hereinunder:-
“Leave granted.
The parties have compromised the matter and filed the copy of compromise as part of the record. The terms and conditions of the agreement entered into between them are:
1. That U.P. Housing and Development Board, Ghaziabad is carrying out a scheme known as Vasundhra Scheme and the land for this scheme was notified for acquisition under Section 28 of the U.P. Housing and Development Board Act on 16.6.1982 and under Section 32 of Uttar Pradesh Housing and Development Board Act on 28.2.1987. After taking the permission from the Government under Section 7 and 17 of the Land Acquisition Act on 14.5.1987 the Land Acquisition officer gave award for this scheme on 27.2.1989.
2. That the above scheme consists of the land of National Cereals Products Limited, Mohan Nagar, Ghaziabad description of which is given at Schedule I, i.e. land measuring 19-5-10 bigha (12.047 acres) in village Arthala.
3. The total land measuring 19-5-10 bigha (12.047 acres) of National Cereals Product Limited will be adjusted in the Scheme with the condition that said land will be used for the construction related with water refining purposes and the rest of the land will be kept open.
4. If the Board will deem proper it will take over the said land of the firm adjusting the same in the one corner of the layout plan according to the convenience of both parties. During this transaction no payment will be made to the firm nor the firm will be entitled to charge any expenses from the Board.
5. For that exchange of the above land an exchange deed will be executed between the first and the second parties. During the exchange of the land no party will pay any value or the compensation for the same. Any stamp fees if payable in the reconstruction during the exchange of the land the same will be shared by both parties on equal basis.
6. The firm will pay the taxes prescribed by the Board and other local authorities for this area.
7. The expenses for preparation of this agreement and registration fess and stamp fees incurred will be shared by both the parties on equal basis. Two copies of this agreement will be prepared – one copy will remain with first party and the second copy will remain with the second party.
The appeal is disposed of in terms of the compromise.
No costs.”
28. The exchange deed dated 24.9.2004 was, thereafter, executed between the Avas Evam Vikas Parishad and M/s National Cereals Products Ltd. as also M/s Mohan Meakins Ltd. As per the above noted terms of the agreement, in case Board deemed it proper to take over the land of the tenure holder firms, total area of 19-5-10 Bigha (12.047 acres) of the acquired land would be adjusted in the layout plan at one corner, according to the convenience of both parties. M/s National Cereals Products Ltd. and M/s Mohan Meakins Ltd, Ghaziabad were entitled to use the adjusted land for the construction related with water refining purpose (water purification plant) and the rest of the land was to be kept open. It was agreed that an exchange deed will be executed for exchange of the above land between the parties and the tenure holder firms will not be entitled to any compensation etc. nor raise any dispute relating to claim for compensation.
29. Relevant clauses ‘3’ to ‘6’ of the Exchange deed dated 24.9.2004 are to be extracted hereunder:-
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30. From clause (5) of the exchange deed, it is evident that the land in Khasra No. 948 (3.238 acres) and Khasra No. 1454 (8.809 acres), total 12.047 acres were allotted to the tenure holder firms in exchange of their acquired lands which were utilized by Avas Evam Vikas Parishad in its scheme. It is undisputed that the land in Khasra 948 was a ‘Lake’ (a water body) whereas Khasra No. 1454 was ‘Banjar’ land. In any case, both the lands in Khasra Nos. 948 and 1454 could not have been allotted in exchange to the tenure holder firms in terms and conditions of the agreement entered into between them before the Apex Court, conditions of which have been extracted above.
31. Clauses (2) and (3) of the terms and conditions of the agreement arrived between the parties before the Apex Court indicate that the Apex Court had permitted adjustment of the land admeasuring 12.047 acres in village Arthala belonging to tenure holder firms in Gata Nos. 757, 768, 769, 770, 751/2, 755, 763, 764, 765, 766, 767, 757M (total 18-13-0) and 526, 528 (total 0-12-10), total area 19-5-10 (12.047 acres), with the condition that the said land will be used for the constructions related with water refining purposes and rest of the land will be kept open. The said condition was with respect to the acquired lands of the tenure holder firms.
32. It appears that in terms of the Clauses (4) and (5) of the agreement arrived between the parties before the Apex Court, the exchange deed dated 24.9.2004 was executed and the condition no. (3) of the agreement was incorporated therein looking to the nature of the lands given in exchange.
33. Be that as it may, the alternative land was provided to the tenure holder firms namely M/s National Cereals Products Ltd. and Mohan Meakins Ltd., in lieu of their acquired lands by Avas Evam Vikas Parishad, acquisition of which was quashed by this Court and had not been interfered with by the Apex Court.
34. From the order of the Apex Court, it is evident that the acquired land of the tenure holder firms was required to be utilized for the purposes related to water refining plant. The condition in Clause (3) of the Agreement, extracted in the order of the Apex Court was related to the acquired land of the tenure holder firms. In our considered view, the “said land” in Clause (3) of the order of the Apex Court refers to the acquired land, which was to be adjusted at one corner of the scheme, for utilization of the purposes indicated therein.
35. The exchange deed dated 25.1.2016 which was executed between Avas Evam Vikas Parishad and the transferee of the original tenure holders namely the petitioner herein M/s Goursons India Ltd., after several rounds of litigation and talks at the higher levels of the State Government and Avas Evam Vikas Parishad, is a valid agreement arrived between the parties to resolve the dispute arose on account of plot nos. 948 and 1454 given in exchange, which were already resumed by the State for the Bird Sanctuary. Even the land allotted in the exchange deed dated 25.1.2016 was in lieu of the acquired land of the original tenure holder firms of total area 12.047 acres. The exchange deed dated 25.1.2016 categorically records that the exchange was agreed with a housing Plot No. 8/BS-01 area 12.047 Acres in Sector-8 of the Siddharth Vihar Yojna, Ghaziabad, which was a freehold plot and the petitioner herein was free to utilize the said land for housing purposes, to make construction over the same with the permission of the Avas Evam Vikas Parishad. The exchange deed dated 25.1.2016 also records that the land of the tenure holder firms of total 12.047 acres had been utilized by Avas Evam Vikas Parishad in the housing Project in Vasundhara Yojna and third party rights have been created over the same.
36. The land in Gata No. 948 and 1454 of village Arthala, subject matter of exchange deed dated 24.9.2004, were handed over to Avas Evam Vikas Parishad by the Nagar Nigam, Ghaziabad in exchange of the lands of the tenure holder firms in terms of the agreement arrived before this Apex Court. Interestingly, the District Magistrate, Ghaziabad had already resumed 77-2-0 Bigha of land of village Arthala by the notification dated 21.3.1994 under Section 117(6) of the U.P. Zamindari Abolition & Land Reforms Act, for Hinden Bird Sanctuary, which included both plot nos. 948 and 1454 of village Arthala.
37. It is, thus, not understandable as to how and in what circumstances Avas Evam Vikas Parishad had given Plot Nos. 948 and 1454 in exchange to the tenure holders firms under the exchange deed dated 24.9.2004.
38. It is clear that dispute in relation to the exchanged land arose on account of the said illegal act of Avas Evam Vikas Parishad in exchanging the lands of Bird Sanctuary in Gata Nos. 948 and 1454 of village Arthala by allotting them to the tenure holder firms, in lieu of their acquired land.
39. Further transfer of the said land in favour of the petitioner herein M/s Goursons India Ltd. by the tenure holder firms vide registered sale deed dated 1.8.2005 will have no consequence, inasmuch as, the tenure holder firms/vendors of the sale deed were entitled for alternative land in exchange of their acquired land as agreed by the Avas Evam Vikas Parishad before the Apex Court. Whatever dispute arose on account of the filing of the Public Interest Litigation or subsequent decision of the District Magistrate, Ghaziabad to cancel the resumption of Gata Nos. 948 and 1454 has no relevance, in so far as the right of the petitioner herein to retain the possession of the land allotted to it under the exchange deed dated 25.1.2016.
40. It is evident that the exchange deed dated 25.1.2016 was executed by Avas Evam Vikas Parishad in rectification of its previous act of illegal exchange by way of the exchange deed dated 24.9.2004, as the land in Gata No. 948, which was a ‘Lake’, could not have been transferred to the original tenure holders firms in exchange.
41. The fact remains that the petitioners were allotted a residential plot in a scheme namely Siddharth Vihar Yojna, Ghaziabad in exchange after much deliberations between the State and Avas Evam Vikas Parishad and they have deposited huge sum of money in terms of the exchange deed dated 25.1.2016. The development over the plot in question namely plot no. 8/BS-01, Siddharth Vihar Yojna, Ghaziabad (Sector-8) has been made by the petitioner after getting the plan construction sanctioned from the Avas Evam Vikas Parishad. The construction of residential units 450 EWS and LIG houses, had been made as per the conditions of the sanctioned plan.
42. The allotment the EWS and LIG flats constructed by the petitioner under the scheme of the Government of India namely “Pradhanmantri Avas Yojna” could only be completed at the level of the State Government. The Principal Secretary (Housing) was required to issue direction to the Avas Evam Vikas Parishad, Ghaziabad to constitute a Committee to undertake the proceedings of allotment and hence the petitioner had approached the Avas Evam Vikas Parishad by moving an application dated 7.2.2018. On such application being filed, certain objections were taken by the Executive Engineer, Avas Evam Vikas Parishad, Ghaziabad about repairs of drains etc. which had been duly removed. The order impugned has been passed with reference to the application for allotment moved by the petitioner before the State Government through Avas Evam Vikas Parishad.
43. We may note that during the scrutiny of the said application, the Chief Secretary, Avas Evam Shahri Niyojan Anubhag-2 has reopened the dispute which had been settled much earlier. It seems that an enquiry was instituted into the execution of the exchange deed dated 25.1.2016 whereunder the plot in question has been allotted to the petitioner.
44. A perusal of the order impugned indicates that taking note of the sequence of events beginning from the judgment of this Court dated 18.3.1993 in Writ Petition No. 17372 of 1987, it was held therein that the transfer of land by the tenure holder firms, given in exchange under the exchange deed dated 24.9.2004, to the petitioner herein vide sale deed dated 1.8.2005, was in contravention of the order of the Apex Court dated 20.3.1995 and it was prima facie a criminal act. This observation in the order impugned is based on the report of a three member Committee dated 13.9.2017, which was constituted under the office order dated 25.7.2017 issued by the Principal Secretary (M), Government of U.P. The said office order was issued on the letter of the State seeking explanation from the Avas Evam Vikas Parishad with regard to the out of court settlement. It may be relevant to note that the Chief Secretary, Government of U.P. had initiated enquiry in view of the decision of this Court in PIL, wherein he was called upon to examine the manner in which the land of Gram Sabha had been given in exchange to private persons.
45. Relevant is to note that the responsibility for illegal exchange of lands in Gata No. 948 which was a ‘Lake’ under the management of Avas Evam Vikas Parishad has not been fixed so as to determine liability of the officers of Avas Evam Vikas Parishad involved in the said episode. It is evident that digressing from the main issue, the entire enquiry was directed against the tenure holders/transferees of the exchange deed dated 24.9.2004.
46. As noted above, the conditions put forth in the exchange deed dated 24.9.2004, for the exchange of Gata No. 948 and 1454 cannot be pressed into service to cast any aspersion on the transfer of land under the exchange deed dated 25.1.2016. The condition with regard to usage of the land given in exchange under the exchange deed dated 24.9.2004 cannot be pressed into service with regard to the land in exchange given to the petitioner under the exchange deed dated 25.1.2016.
47. The undisputed fact of the matter remains that the tenure holder firms namely M/s National Cereals Products Ltd. and Mohan Meakins Ltd. were owners of the plots which were acquired by Avas Evam Vikas Parishad for its housing scheme under the acquisition notifications issued Sections 28 and 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. Once the acquisition notifications were quashed by the this Court and the challenge raised by the tenure holder firms was upheld, they were entitled to claim the possession of the acquired land. In other words, the acquired land of 12.047 acres was required to be restored back to the tenure holder firms. However, on further challenge to the decision of the High Court before the Apex Court by Avas Evam Vikas Parishad, an agreement had been arrived between the parties whereunder the acquired land was allowed to be retained by the Avas Evam Vikas Parishad by making adjustment of the same in its housing scheme known as “Vasundhara Housing Scheme”.
48. The exchange deed dated 24.9.2004 was executed by Avas Evam Vikas Parishad in order to retain the possession of the acquired land, for utilization under the said housing scheme. The order impugned is a result of misreading of the judgment of the Apex Court dated 20.3.1995 and the contents of the exchange deed dated 24.9.2004.
49. Even otherwise, the land in Gata No. 948 which was a ‘Lake’ under the management of the Avas Evam Vikas Parishad could not have been transferred to the tenure holder firms, in exchange of their acquired land which was otherwise suitable for housing purposes. It seems that on account of the said dispute, in various rounds of deliberations, a consensus had been arrived between the rival parties, i.e. the Avas Evam Vikas Parishad and the petitioner, transferee of the land given in the exchange to the original tenure holder firms. Once exchange deed dated 25.1.2016 has been executed, no objection could have been taken about the usage of the land allotted in the said exchange or the purpose for which the land in exchange could be utilized by the petitioner herein.
50. The order passed by the Chief Secretary, Government of U.P., initiating action against the tenure holder firms seems to be an effort to save the officers of the Avas Evam Vikas Parishad from disciplinary action for their illegal act and is in contravention of the order of this Court in PIL matter. No action seems to have been taken against the officers of the State including the Collector, Ghaziabad and officers of the Avas Evam Vikas Parishad, under the directions issued by this Court in the order dated 3.7.2017 passed in PIL No. 54096 of 2010.
51. Be that as it may, the lands in Gata Nos. 948 and 1454 have been restored back to the Avas Evam Vikas Parishad after cancellation of the resumption order dated 21.3.1994. The name of Avas Evam Vikas Parishad has been restored in the revenue records. The land in Gata No. 948, which is a ‘Lake’ is under the management of the Avas Evam Vikas Parishad. In view of the above discussion, the directions issued in the order impugned in clauses (ii) and (iii) of the order dated 21.6.2022 passed by the Chief Secretary, Housing and Urban Planning, Anubhag-2, Government of U.P., Lucknow are wholly uncalled for.
52. No infirmity can be attached to the development of land of the petitioners, given to them in exchange in terms of the exchange deed dated 25.1.2016. There is no violation of the terms and conditions of the exchange deed. There is also no violation of term and condition of the exchange deed dated 24.9.2004 by the tenure holder firms. The usage of the land given in exchange under the exchange deed dated 24.9.2004, as indicated in the sale deed dated 1.8.2005 executed by the original tenure holders in favour of the petitioners, would be of no relevance in so far as the usage of the plot in question namely Plot No. 8/BS-01 situated in Siddharth Vihar Yojna, Ghaziabad (Sector-8), given in exchange to the petitioner by the Avas Evam Vikas Parishad under the exchange deed dated 25.1.2016.
53. The order impugned dated 21.6.2022 passed by the Chief Secretary, Government of U.P., therefore, suffers from apparent illegality and is liable to be set aside.
54. Before parting with this judgment, we deem it fit and proper to direct the Chief Secretary, Government of U.P., Lucknow to initiate enquiry against the officials of the Avas Evam Vikas Parishad who were involved in illegal transfer of Gata Nos. 948 and 1454, which were State land on the date of execution of the exchange deed dated 24.9.2004.
55. While fixing responsibility of illegal action on the guilty officials, the disciplinary action both on the civil and criminal side shall be initiated against them, in compliance of the judgment and order dated 3.7.2017 passed in PIL No. 54096 of 2010.
56. In any case, the petitioner herein cannot be said to be party to any of the illegal act of the officials of the Avas Evam Vikas Parishad in execution of the exchange deed dated 24.9.2004 and cannot be saddled with any kind of penal action. The application moved by the petitioner to take a decision for allotment of 450 EWS and LIG houses constructed by the petitioner as per the sanctioned plan, shall be decided afresh in light of the above observations on receipt of the copy of this order, as expeditiously as possible, preferably within a period of two months from today.
57. Subject to the above observations and directions, the writ petitions are allowed.