Allahabad High Court
Surendra Singh Tyagi vs State Of U.P. Thru. Secr. Dept. Of Urban ... on 29 August, 2025
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:151789-DB
Reserved on 21.08.2025
Delivered on 29.08.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 21229 of 2010
In Chamber
HON'BLE MAHESH CHANDRA TRIPATHI, J.
HON'BLE KSHITIJ SHAILENDRA, J.
(Delivered by Kshitij Shailendra, J.)
1. Heard Shri Rakesh Pande, learned Senior Counsel, assisted by Shri Harsh Kumar Thapa and Shri Sameer Srivastava, for the petitioner, Shri Om Prakash, holding brief of Shri Manu Vardhan, learned Standing Counsel for the State-respondent nos. 1 and 3 and Shri Amit Saxena, learned Senior Counsel, assisted by Shri Kaushalendra Nath Singh, for NOIDA.
2. The writ petition has been filed challenging an order dated 06.01.2010, whereby the allotment of a residential plot made in the year 2000 in favour of the petitioner?s son, which was later on transferred in favour of the petitioner in the year 2000 itself, has been cancelled by the Office Superintendent of NOIDA.
BRIEF FACTS
3. In the year 1997, New Okhla Industrial Development Authority (in short ?NOIDA?) floated a scheme inviting applications from eligible candidates for the purposes of allotment of residential plots. The petitioner?s son, who was running a canteen under his sole proprietorship in the name and style of M/s Top Foods under an allotment letter dated 30.01.1997 issued by Government of India, Ministry of Commerce, Noida Export Processing Zone (for short ?NEPZ?), applied for allotment under the said scheme. He was found eligible and, after holding due process, an allotment letter dated 01.01.1999 was issued in his favour allotting a residential plot measuring 200 square meters under the said scheme subject to financial terms stipulated in the letter. On 30.03.2000, the allotment was transferred by NOIDA from petitioner?s son to the petitioner and there is no dispute about the said fact.
4. After a period of 11 years from initial allotment and 10 years from transfer, the order impugned has been passed on the ground that the petitioner?s son was not eligible for the allotment and, consequently, the initial allotment as well as the transfer made in favour of the petitioner has been cancelled. For a ready reference, the order impugned is reproduced herein under:-
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5. An interim order dated 20.04.2010 was passed in this petition staying operation of the order impugned dated 06.01.2010. The interim order was extended until further orders by a subsequent order dated 02.07.2010 and is operative as on today.
SUBMISSIONS ON BEHALF OF THE PETITIONER
6. Shri Rakesh Pande, learned Senior Counsel, submits that the order impugned is based upon a letter dated 14.06.2004 issued by the Noida Special Economic Zone (NSEZ), Department of Commerce and, taking note of the same, the allotment has been cancelled by observing that the petitioner?s son was not eligible as per the terms and conditions governing the Scheme. He submits that by the letter dated 14.06.2004, although NSEZ informed the NOIDA that the allotment had been made in favour of M/s Top Foods, Canteen/Restaurant in NSEZ on lease basis for a period of five years, the order impugned assigns a strange reasoning that the canteen was not allotted on lease basis but on rent and, consequently, the petitioner?s son, who was running a canteen, has been held to be ineligible and, that too, after a period of 11 years from the date of allotment.
7. It is further contended that the Scheme itself provides that the applicants/ industrial unit/ commercial establishments/ institutions or their Director/ Partner/ Trustee etc. shall be eligible provided they do not own and have not been allotted in full or in part on lease hold or free hold or hire purchase tenancy agreement basis any residential plot or house or flat in NOIDA Complex. It is, therefore, contended that since the allotment was made after due verification of the facts including the status of M/s Top Foods as an allottee on lease rent basis made in the year 1997, which tenancy was subsisting on the date of allotment, there is no reasonable justification to hold after 11 years that the petitioner?s son was not eligible.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
8. Per contra, Shri Amit Saxena, learned Senior Counsel, submits that the Scheme was meant for those who were having valid tenancy/ lease agreements and not for such petty businessmen who were having rented accommodations within the area. Further submission is that the petitioner, in paragraph no 6 of the writ petition itself, has relied upon Clause No. II(A) mentioned in the Scheme which is applicable for industrial unit and the canteen run by the petitioner?s son or by the petitioner does not fall within the ambit of an ?industrial unit? and, therefore, the petitioner?s son was not eligible. It is further submitted that, initially, the petitioner?s son applied as a commercial establishment but, later on, stated that he had wrongly marked the said category and requested for change of category from commercial establishment to industrial category and, once a canteen does not fall within the ambit of an industrial unit and the petitioner?s son himself pressed his eligibility based upon Clause No. II(A), no error has been committed by the Authority in cancelling the allotment. It is also contended that, as per letter dated 14.06.2004 issued by NSEZ, the lease period was to expire on 26.05.2007 and, therefore, in absence of any subsisting lease after 2007, the petitioner would not be entitled to claim any relief.
DISCUSSION AND FINDINGS
9. Having heard learned counsel for the parties, first of all, we deem it appropriate to reproduce relevant eligibility stipulations contained in the Scheme. The same are reproduced herein under:-
?1. ELIGIBILITY:
1. GENERAL ELIGIBILITY CONDITIONS COMMON TO ALL CATEGORIES:
(a) The applicant should be competent to contract.
(b) Only such applicants / industrial units / commercial establishments / institutions or their Director/ Partner/ Trustee and Tenure-holder/ Co-tenure holder from the land acquired categories shall be eligible where the Applicant / Industrial unit / Commercial establishment / Institution any of its past/present Director(s) / Partner(s) / Proprietor / Trustee(s) / any of Tenure-holder/co-tenure holder(s) / their spouse / dependent children do not own and have not been allotted in full or in part on lease hold or free hold or hire purchase tenancy agreement basis any residential plot or house or flat (excluding EWS/LIG/DS-I/DS-II/TS-I/TS-II/ Udaigiri-1/ Udaigiri-II houses/flats allotted in favour of industrial unit / Institution) in NOIDA Complex. Husband and wife and their dependent children will not be separately eligible for allotment of plot and for this purpose they shall be treated as a single person and they can make only one application.
II. SPECIAL ELIGIBILITY CONDITIONS APPLICABLE TO SPECIFIC CATEGORIES:
(A) INDUSTRIAL UNIT:
(a) Bonafide Industrial unit fullfilling the following conditions will be eligible:
(i) The unit has taken physical possession of industrial plot / shed after legal documentation and has been declared functional on or before 31.12.97 and is functioning till date.
(ii) The unit has cleared all the dues till 31.12.97 including lease rent as on the date of application.
(b) In case application is being made by Prop./ Partner/Director of the industrial unit, the following conditions shall be fulfilled.
(i) Industrial unit of the applicant fullfilling all condition as laid down at (a) above.
(ii) Applicants name as Prop. / Partner / Director of the industrial unit should have been taken on record by the industrial department of Noida on or before 31.12.97 and the applicant has obtained a certificate to this effect.
(iii) The eligibility for allotment of residential plot shall be for one plot only either in the name of the unit or its bonafide Director / Partner / Sole Proprietor, irrespective of number of premises in the possession of unit.
INDUSTRIAL UNIT ON RENTED PREMISES:
Industrial unit functioning in rented premises with the permission from Industries department, NOIDA fullfilling the following conditions will also be eligible.
(i) The industrial unit is functioning in the approved industrial area.
(ii) The industrial unit functioning in rented premises shall have obtained renting permission from NOIDA on or before 31/12/97.
(iii) The industrial unit functioning in rented premises has obtained on lease an industrial plot/shed and has taken possession of the same after execution of legal documents on or before 31/12/97.
(iv) The industrial unit should have cleared all the dues upto 31.12.97 including lease rent of the leased plot/shed on the date application.
(B) ELIGIBLE BONAFIDE COMMERCIAL ESTABLISHMENT
(i) The commercial establishment should have taken physical possession of commercial establishment after execution of legal documents and is declared functional by commercial department of NOIDA on or before 31/12/97.
(ii) The commercial establishment should have cleared all the upto date dues till 31/12/97 including upto date lease rent on the date of application.
(iii) Bonafide functional sub-lessee of commercial establishment who has obtained the premises from the lessee of commercial plot and has acquired sub-lease hold rights through the authority by executing sub-lease agreement on or before 31.12.1997 shall also be eligible.
(iv) In case the application is being made by Prop. /Partner/Director of commercial establishment, the name of such Prop./Partner/ Director should have been taken on record of commercial department of NOIDA on or before 31/12/97 and has obtained a certificate to this effect from commercial department of NOIDA.
(v) Such commercial establishment/ their Prop./Partner/ Director shall not be eligible where the commercial establishment has been obtained through transfer and past owner had already obtained a residential plot.
(vi) The eligibility for allotment of residential plot shall be for one plot only either in the name of establishment or its bonafide Director / Partner / Sole Proprietor irrespective of number of premises in the possession of establishment.?
10. A bare perusal of the afore-quoted stipulations would reveal that the Scheme was meant both for industrial units as well as commercial establishments and does not hold a tenant/allottee as ineligible. Therefore, it has to be seen as to when initial application was moved, either mentioning the canteen as a commercial establishment or the request was subsequently changed to an industrial category, whether this fact alone would hold the petitioner?s son as ineligible.
11. We find from Annexure No. 1 to the writ petition that Government of India, Ministry of Commerce had, by allotment order dated 30.01.1997, made allotment of Industrial Canteen No. II in NEPZ on lease rent after having found the bid offered by the petitioner?s son as the highest. Though initial period of lease was specified as five years on monthly lease rent of Rs. 13,300/-, it was extended for a period of five years by letter dated 24.05.2002. Extension of lease has not been disputed by the respondents but their objection is that mere status of the allottee as a tenant would not hold him eligible, which is the sole ground taken in the order impugned.
12. We may notice the stand taken in paragraph nos. 7, 8 and 12 of the counter affidavit filed by respondent no. 3, i.e. Deputy Commissioner, NSEZ, Department of Commerce, Government of India which is to the effect that the allotment of the Industrial Canteen No. II measuring 330 square meters was made on lease rent basis, initially for a period of five years, which was extended upto 26.05.2007, possession was delivered to the allottee on 27.05.1997 and that the said allotment is valid upto 31.03.2021.
13. In view of the above discussion, we are of the view that the NOIDA has grossly erred in cancelling the allotment on the ground mentioned in the order impugned, i.e. treating a tenant as ineligible for allotment. We find that neither the scheme nor the allotment letter issued by the Government nor the extension letter nor even the letter dated 14.06.2004 issued by NSEZ, as referred to in the order impugned, makes a distinction in between a person who was a lessee and an allottee/tenant on rent. The distinction sought to be carved out by NOIDA in the order impugned, does not find support from any material on record. At the same time, we find that the eligibility as a lessee has to be considered in its entirety as per the stipulations contained in the Scheme.
14. As far as other submissions made by Shri Saxena that the lease has expired in the year 2007 or any other submission so as to justify passing of the order impugned, we are not inclined to accept the same as it is well settled that validity of an order has to be tested on the reasoning assigned therein and it cannot be supplemented by other reasons not borne out from the order itself. Reference in this regard can be made to a judgment of Hon?ble Supreme Court in the case of Mohinder Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others: AIR 1978 SC 851.
15. While we are satisfied that the cancellation of allotment done for the reasons stated in the order impugned is bad and are inclined to set aside the said order, at the same time, we are of the view that since 15 years have passed from the date of cancellation, matter may be examined by the respondent Authority, i.e. NOIDA by passing a fresh order in accordance with law.
16. The writ petition is, accordingly, allowed.
17. The order impugned dated 06.01.2010, contained in Annexure No. 1 to the writ petition, is hereby set aside.
18. The respondent no. 2 is directed to pass a fresh order in the matter in accordance with law after providing opportunity of hearing to the petitioner, within eight weeks.
August 29, 2025
AKShukla/-
