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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 126 of 19710/21/2011The Regional Plan-2021 approved and notified on 17.9.2005 contains provision for keeping strict control over theland use. Paragraph 17.5.1 which has been referred to by Shri Ravindra Kumar, cannot be read to mean that withregard to land uses in the area the Authority/State Government is free to fix land use, the land uses have to be inaccordance with the Regional Plan and Sub-Regional Plan. Thus, the submission of Shri Ravindra Kumar, thatthe authority is free to determine and change the land uses within the development area cannot be accepted.At this juncture, it is necessary to refer to the judgment of the Apex court in Ghaziabad Development Authority Vs.Delhi Auto & General Finance Private Ltd, (1994) 4 SCC 42.In the aforesaid case, the master plan was prepared by the GDA under the U.P. Urban Planning andDevelopment Act, 1973 in which land uses of the area in question was recreational. The said land uses waschanged by the GDA as 'residential' at the instance of the State Government. Subsequently, within a short span oftime it was again changed as recreational. The respondents Delhi Auto and General Finance Ltd, had submitted aplan which was rejected by the GDA. Writ petitions were filed in the High Court claiming that the rejection wasarbitrary. The High Court allowed the writ petition filed by the respondents. Against the order of the GDA anappeal was filed before the Apex Court. In the above context the provisions of the NCRPB Act, 1985 came up forconsideration before the Apex Court. In the Master Plan which was approved by the NCR Board, the land useswas recreational.The Supreme Court in the aforesaid context stated that the change of land uses from recreational to residentialcannot confer any right. It was further held that each participating State is under obligation to prepare Sub-Regional Plan and is responsible to implement the Sub-Regional Plan. Following was laid down in paragraph 16which is quoted below:"16. The four villages in question in which the lands of Delhi Auto and Maha Maya are situate form part of the U.P.Sub-Region of the National Capital Region. In the Master Plan of 1986 operative till 2001 A.D.(An-nexure I) thelands of Delhi Auto and Maha Maya are included in the area set apart for 'recreational' use only. On this basis theRegional Plan was prepared and approved under the NCR Act on 3.11.1988 and finally published thereunder on23.1.1989 according to which the area in question was set apart for 'recreational' use only. Admittedly no changein this Regional Plan to alter the land use of that area to 'residential' purpose was made any time thereafter inaccordance with the provisions of NCR Act. The overriding effect of the NCR Act by virtue of Section 27 thereinand the prohibition against violation of Regional Plan contained in Section 29 of the Act, totally excludes the landuse of that area for any purpose inconsistent with that shown in the published Regional Plan. Obviously, thepermissible land use according to the published Regional Plan in operation throughout, of the area in question,was only 'recreational' and not residential since no change was ever made in the published Regional Plan of theoriginal land use shown therein as 'recreational'. This being the situation by virtue of the overriding effect of theprovisions of NCR Act, the amendment of land use in the Master Plan under U.P. Act from 'recreational' to'residential' at an intermediate stage, which is the main foundation of the respondents' claim, cannot confer anyenforceable right in them. However, if the first amendment in the Master Plan under the U.P. Act altering the landuse for the area from 'recreational' to 'residential' be valid, so also is the next amendment reverting to the originalland use, i.e., recreational'. Intervening facts relating to the private colonisers described as planningcommitments, investments, and legitimate expectations do not have the effect of inhibiting the exercise ofstatutory power under the U.P. Act which is in consonance with the provisions of the NCR Act, which also hasoverriding effect and lays down the obligation to each participating State to prepare a Sub-Regional Plan toelaborate the Regional Plan at the Sub-Regional level and holds the concerned State responsible for theimplementation of the Sub-Regional Plan. The original land use of the area shown as 'recreational' at the time ofapproval and publication of the Regional Plan under the NCR Act having remained unaltered thereafter, thatalone is sufficient to negative the claim of Delhi Auto and Maha Maya for permission to make an inconsistent landuser within that area."As noticed above, in the Supplementary Affidavit which was filed by the Authority in pursuance of the direction ofthis Court to explain its stand under the 1985, Act in which the fact mentioned was that 2021-Plan has beensubmitted to the Board and certain minor suggestions of the of the Board which do not relate to land use wereincorporated. In this context, it is also useful to refer to the pleading of the Authority in Writ PetitionNo.57032/2009, Manaktala Chemical (Private) Ltd. Vs. State of U.P.& Ors.As noticed above, in the aforesaid writ petition there was a specific pleading that no approval has been obtainedfrom the Board.In paragraph 12 of the counter affidavit filed by the Authority following was observed which is quoted below:
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 127 of 19710/21/2011"12.That the contents of Para 24 of the writ petition are not admitted hence specifically denied. It is submitted thatthe National Capital Regional Planning Board Act, 1985 (hereafter referred to as the Act 1985) does not prohibitthe acquisition before its permission for acquisition. There is no provision in the Act 1985, which requires that ifthe State Government acquires the land prior permission should be taken. Both the Acts 1985 and 1894 operatein different fields. the Act 1894 is not dependant upon the Act 1985. The acquisition proceedings will not bevitiated if prior approval of the Board under the Act 1985 has not been taken before the acquisition. Anydevelopment on the land acquired will have to be done in accordance with law. However The notification hasbeen issued under the Land Acquisition Act, 1894. The National Capital Region Planning Board Act 1985 doesnot prohibit, the acquisition of land. Nor any permission is required for acquisition of land. The National CapitalRegion Planning Board Act 1985 is to give suggestions and observations on the Master Plan, Sub regional plan,which are incorporated by the Greater Noida Authority from time to time according to the Drafted Master Plan. It isfurther clarified, the Section 19 of the Act 1985, clearly shows that is for regarding the observations andsuggestions. The paper clip and relevant documents showing the letters and correspondence with the NationalCapital Region Planning Board is collectively being marked as Annexure CA-2 to this Counter Affidavit."In the aforesaid counter affidavit, the Authority itself has brought on record the letter dated 09/5/2007 of theNational Capital Region Planning Board in context of draft of Greater Noida Master Plan 2021. In the said letterfollowing was directed:"ToMs. Rekha DevyaniGeneral Manager (Planning)Greater Noida Industrial Development Authority,169,Chitvan Estate, Sector Gamma, Greator Noida City, Distt. Gautam Budh Nagar-201308.Madam,Please refer to your letter No.Niyojan/M-I(iv)/2007/479 dated 2.2.2007 regarding the draft Greater Noida MasterPlan 2021. the point wise replies on the observations and suggestions of Planning Committee have beenexamined. It is observed that certain suggestions of NCRPB have not been incorporated which is enclosed.It is requested that the suggestions of NCRPB may be incorporated in the draft Greater Noida Master Plan-2021and revised Plan document may be sent to the Board at the earliest for consideration of Planning Committee.Yours faithfully 9/5/07(Rajeev Malhotra)Chief Regional Planner"The proceeding of 54th meeting of the Planning Committee of NCR Planning Board held on 04/9/2006, wasforwarded to Greater Noida containing several observations and directions of Planning Board. In the counteraffidavit letter dated 02/2/2007 has been brought on record by which a request was made on behalf of the GreaterNoida Authority that observations have been incorporated and on the basis of the amendment as approved on21/12/2006, by the Authority approval of Board be obtained. In none of the pleadings on behalf of the authorityany subsequent event has been referred to or dealt with. The original proceedings which were submitted by theAuthority for our perusal contains the developments which took place subsequent to 09/2/2007, which we havenoticed from the original records submitted by the Authority itself. Following facts emerged from the originalrecords:25/10/2007-Additional Chief Executive Officer of the Greater Noida wrote to the State Government thatamendments have been incorporated in Draft Master Plan 2021 in Board Meeting 21/8/2007 which after approvalbe forwarded to N.C.R.P Board for approval.14/1/2008- Board requested the Greater Noida Authority for finalisation of Master Plan for Phase-II.14/2/2009-N.C.R.P. Board wrote to Greater Noida to send Master Plan for Phase II and updated proposed Landuse plan 2021 be sent to Board.13/5/2009-Board wrote to the Greater Noida that inspite of several reminders, no response has been receivedfrom Greater Noida with regard to Draft Master Plan-2021. (Phase II).
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