ivil Appeal No 5502 of 1983
From the Judgment and Order dated 651983 of the Alla habad High Court in CMWP No 6563 of 1980
SS Ray DD Thakur Mrs C Markandeya section Markan deya WA Nomani GS Giri Rao RK Raina and JM Khanna for the Appellants
BD Agarwal Mrs section Ramachandran R Ramachandran HK Puri Mrs section Dikshit and AK Gupta for the Respond ents
The Judgment of the Court was delivered by KN SAIKIA J
Appellant No 1 is a registered Housing Cooperative Society registered under the UP
Co operative Societies Act bearing registration No 2 130 dated 273
1973 hereafter referred to as the society  and appellant Nos 2 3 and 4 are respectively the President Secretary and Treasurer of the Society
The object of the Society is to acquire lands for its members for constructing residen tial houses for them
The members are Central and State Government employees and public sector employees and more than 70 acres of land situated in villages Chhalera Bangar and Suthari were acquired by the Society between January 1973 and September 1975
For development of certain areas in the State of UP into industrial and urban township and for matters connected therewith the UP Industrial Area Development Act 1976 hereafter referred to as the Act  was enacted and thereaf ter the UP Government by a Notification dated 1741976 declared the villages named in the schedule annexed to the Notification to be an Industrial Development Area within the meaning of the Act to be called NOIDA
67 Soon after constituting this Authority a Notification under sections 4 and 17 sub section
1 of section 4 and sub section
4 of section 17 of the Land Acquisition Act was published in the UP Extra Ordinary Gazette dated 3041976 stating that the land in village Chhalera Bangat was needed for the planned indus trial development
The land of the appellant society was included in the Notification
In continuation of Notifica tion dated 3041976 another Notification under section 6 dated 151976 was issued stating that the land mentioned in the schedule ie village Chhalera Bangar was needed for a public purpose and under section 7 of that Act to direct the Collector of Bulandshahar to take order for the acquisition of the said land
A Notification under sub section
1 of section 4 of the Land Acquisition Act was issued on 161976 notifying that the land mentioned in the schedule ie land in Suthari village etc was needed for a public purpose and that the case was of urgency and as such the provisions of sub
section 1 of section 17 of the said Act were applicable to the land Notifica tion under section 6 of that Act was issued on 1691976 notify ing that the land mentioned in the schedule ie Suthari village etc was needed for public purpose and under section 7 of that Act it directed the Collector to take order for acquisition of the said land
The appellant society and the other registered co opera tive societies demanded land in lieu of the land acquired in the NOIDA complex and after several representations and correspondence a subcommittee was constituted under the chairmanship of Sri BJ Khadaiji Commissioner and Secretary Housing and Urban Development Government of Uttar Pradesh to look into the matter
In a meeting held on 19101979 it was decided that sites would be given to various co operative societies nearest to Delhi on the basis of the NOIDA Master Plan which was under consideration
It was also clarified in that meeting that 35 per cent of the area offered to the members of the Society will be plotted area out of the total acquired area of the Society
The Executive Officer NOIDA vide his letter dated 2141980 informed that it was proposed to offer developed plots to the bona fide members of the co operative societies whose lands were acquired
An approximate rate was offered at Rs 130 per square metre in sectors 30 31 34 39 and 40
Certain conditions were also laid down in that letter and one of the conditions was that amount equal to 30 per cent of the price of the area of developed plots computed at Rs 130 per square metre should have to be sent in favour of NOIDA and thereafter tripartite agreement shall have to be made between NOIDA Co operative Societies and individual members after finalisation of lay out plan
68 Alleging that arbitrary action taken by the NOIDA that far was not acceptable to the appellant Society it flied Civil Misc
Writ Petition No 6563 of 1980 on 2971980 challenging the notifications issued under sections 4 and 6 of the Land Acquisition Act
The writ petition was admitted by the Allahabad High Court but stay was refused
The Society insisted on rehabilitation of the members on the original land on the basis of the policy of the Government
The Chief Executive Officer intimated the Society that the authority had finally decided to offer lands in sectors 30 31 36 and 40 and that 20 per cent of the amount had to be deposited but the Society did not deposit the amount by the stipulated time
The Society requested for extension of time but the NOIDA did not extend it and the appellant Society had not been allotted any land
As the writ petition was filed in the year 1980 ie more than three years after publication of the notifications the impugned Notifications had been upheld by a Division Bench of the Allahabad High Court by the impugned Judgment dismissing the writ petition
The appellant Society argued before the High Court that the action of the Authority in not allotting land to the appel lant Society was mala fide and also that action of the Au thority in not extending the time as prayed for was arbi trary and discriminatory
It was submitted by the respond ents that offer to give developed plots to the appellant Society was only as a concession and not as a legal right the Authority was not bound to extend the time
The appel lant Society also challenged the price fixed by the authori ty and the appellant s counsel had not been able to show that anybody was offered developed plots for a price less than Rs 130
The High Court held that appellant Society had no legal right to get a particular land and that the Society did not avail of the concession granted by the authority
Hence this appeal by Special Leave from the impugned Judgment and Order dated 651983 of the Allahabad High Court passed in Civil Misc
Writ Petition No 6563 of 1980
While granting Special Leave on 3051983 there was an order of ex parte stay of dispossession pending notice but the execution proceedings were allowed to go on
On 193
1984 in CMP No 16786 of 1983 it was ordered that Mr Markandeya Advocate on behalf of the petitioners would make a representation to the respondent New Okhla Industrial Development Authority NOIDA for the allotment of a suit able site and the representation would be considered on its own merits and a decision taken thereon by the respondent within two months from the date of that order
On 3041984 Mr GL Sanghi appearing for NOIDA had made a statement before the Court that 69 NOIDA undertook that in the event of this appeal being allowed NOIDA would give to the appellants such areas as this Court might specify from sectors 40 and 41 at prices to be determined in accordance with the Judgment of this Court
Undertaking given by Mr GL Sanghi was limited to NOIDA giving areas from sectors 40 and 41 to the appellants and to those persons who were eligible members of the Society on 1st May 1976
These orders were said to be without preju dice to the rights and contentions of both the parties in this appeal
On 85
1985 the order dated 3041984 was modified by this Court directing that NOIDA would give to the appellants such areas as this CoUrt might specify from sectors 40 41 as also from sector 42 at price to be determined in accord ance with the Judgment of this Court
If any of the peti tioners could not be accommodated in any of these sectors the NOIDA would give them sites or areas which were contigu ous to sectors 40 41 and 42
On 1811990 this appeal was delinked from the group of NOIDA cases
By Judgment and Order dated 1321990 the main Writ Petition No 975 of 1986 Hiralal Chawla  Anr
vs State of UP  Ors reported in 1990 1 Judgments Today SC 194 was disposed of stating the total number of persons entitled to allotment and sizes of the plots to be allotted and direct ing that the sites be developed by NOIDA within a period of nine months beginning from 1st of March 1990 and allot them by charging the agreed price at the rate of Rs 1000 per square metre and paying 12 per cent interest on the amount deposited till the actual allotment and that the interest would be adjusted against the price payable on the allotted land
The dates for payment of the 1st 2nd and 3rd instal ments were also agreed
It was observed that the Town Plan ning in NOIDA was said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh was a member
It was accordingly directed that all the norms laid down by NOIDA in the matter of development shall be strictly followed
Supervision of this operation should be by NOIDA and the appellants would co operate with NOIDA in that regard
When this appeal was heard on 541990 there was a consensus that justice would be done to the parties if this appeal is also disposed of on similar terms as in Hiralal Chawla  Anr
vs State of UP  Ors
 supra
However the parties were allowed to file
written submissions
Written submissions were accordingly filed by the res 70 pondents in reply thereto by the appellants and for the intervener
Taking into consideration the earlier interim orders the consensus arrived at the hearing and the written submis sions it is ordered in line with Hiralal supra that the interim orders dated 30583 19384 30484 and 8585 will merge in this Order
The impugned Judgment of the High Court is set aside and it is ordered A That the total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May 1976 not exceeding 600 six hundred
B The total area to be allotted to the members of the Society will be 288 acres in the form of developed plots
This amounts to 40 of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January 1973 and September 1975
C The allotment shall be made in Sectors 40 41 and 42 and if sufficient number of plots are not available in these Sectors then from the adjacent Sectors
D The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May 1990 and ending on 31st January 1991 by which date the plots shall be allotted to the entitled members of the Society
E The NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs 1000 per square metre
F Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs 1000 per square metre
Balance amount if any shall have to be paid by every eligible member of the Society as on 1576 not exceeding 600 in all within three months from now in three equal monthly instal ments
The 1st instalment will be paid on or before May 31 1990 the 2nd instalment to be paid on or before June 30 1990 and the 3rd instalment to be paid on or before July 31 1990
G It shall be the obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest
H It is stated by the parties that a Review Application in Hiralal Chawla s case is pending
As agreed by the parties in case that Review is allowed the parties herein shall be at liberty to apply for review of this judgment to similar extent
I Each allottee shall furnish an affidavit to the effect that neither heshe or spouse 71 nor dependent children owns any other plot or house or flat within NOIDA
Town Planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed
Supervision of this operation of course shall be by NOIDA but we hope and trust that the Society would coop erate with NOIDA in this regard
The appeal is disposed of with these directions without any orders as to costs
GN Appeal disposed of


Summary:
The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiffappellant in respect of the said properties was void
Pending the suit a Receiv er was appointed by Justice AN Sen
While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or  transferring   any of the properties
The property in dispute is a building at Alipore Calcutta which comprised of four fiats
Grindlays Bank Ltd respondent No 1 had taken all the four flats on lease for 10 years from 1st June 1958
After the expiry of the period of lease Grindlays continued to be the tenant
On 1st April 1978 Grindlays surrendered a portion of the tenancy namely two fiats ie fiats Nos 1 and 2 in favour of Tatas
The Receiver let out these two fiats to Ms Tata Finlay Ltd with effect from February 1979
Questioning the action of the Receiver an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy that he had virtually created two new tenancies after terminating the original tenancy of Grindlays and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily
The learned Single Judge was not inclined to order summary eviction as prayed for
An appeal was filed before the Division Bench
The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court
Before this Court it was contended on behalf of the appellant that i the Receiver had only such powers as were expressly granted by the Court ii transfer included lease and therefore the Receiver by creating a new lease ie tenancy had violated the injunction order passed by Justice AN Sen iii after the expiry of the stipulated period of lease in favour of Grindlays the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed and the monthly tenancy therefore was a new tenancy iv protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er v the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence and vi the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years the Receiver had created a new lease in violation of Chapter 21 Rule 5a of the Original Side Rules
In reply it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act
On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968 rela tionship between Grindlays and the Trust continued to be of landlord and tenant that at all material times they re tained the tenancy in respect of flats Nos 3 and 4 and were governed by the Tenancy Act that the surrender of flats Nos 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos 3 and 4 and hence there was no trans fer and no violation of the injunction
Dismissing the appeal as against respondent No 1 and allowing it against respondent No 2 this Court HELD 1 In the Transfer of Property Act the word trans fer  is 963 defined with reference to the word convey 
Similarly the term transfer  as used in Section 11 or Section 88 of the Bengal Tenancy Act included a lease as a lease is a trans fer of an interest in immovable property
A lease there fore comes within the meaning of the word transfer  968A B Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose  Ors XXIII Vol
Indian Cases 925 referred to
2 Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy
Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy
972C D Konijeti Venkayya  Anr
vs Thammana Peda Venkata Subba rao  Anr
AIR 1957 AP 619 and NM Ponniah Nadar vs Smt
Kamalakshmi Ammal AIR 1989 SC 467 referred to
3 The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years
It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5a of the Original Side Rules
Merely because there was change in the character of a tenancy namely that it had become a monthly tenancy it did not amount to a new tenancy
972G H Utility Articles Manufacturing Co vs Raja Bahadur Motilal Bombay Mills Ltd  referred to
4 A clear injuction order was passed by Justice AN Sen specifically restraining the Receiver from creating any new tenancy
But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos 3 and 4 inasmuch as it was an old tenancy though in a modification form
The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act
974G H 975A C Damadilal  Ors
vs Parshram  Ors 1976 Supp
SCR 645 and Biswabani P Ltd vs Santosh Kumar Dutta   referred to
Ashrafi Devi  Anr
vs Satyapal Gupta  Ors Suit No 966 58 dated 9th Sept 1977
Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar  Ors  distinguished
964 5 In the case of Tatas it was a new tenancy
Such a lease came within the meaning of transfer  and in view of the injunction order passed by Justice AN Sen creation of such a new tenancy was legally barred
Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted
978C Kanhaiyalal vs Dr DR Banaji  at p 729 Smt
Ashrafi Devi  Anr
vs Satyapal Gupta  Ors supra and Armugha Gounder vs Ardhanari Mudalier supra referred to