- (1.) AMITAVA Lala, J. This appeal arises out of the order dated 30th May, 2006 passed by the Court below rejecting the application for interim injunction filed by the plaintiff, the appellant herein, in Original Suit No. 273 of 2006 (Kendriya Karamchari Sahkari Greh Nirman Samiti Ltd. v. New Okhla Industrial Development Authority ).
(2.) BY consent of the parties, the appeal has been heard on the informal papers, however, upon exchange of affidavits. The plaintiff appellant alleged to be a Co-operative Housing Society (here-in after in short called as 'society') registered in the year 1975 under the U. P Co-operative Societies Act, 1965. The appellants case is that it has purchased 292 bighas of land situated in Village Chhalera of District Gautam Budh Nagar, commonly known as Noida, U. P. for housing purpose from the funds contributed by its members before acquisition by the State Government for New Okhla Industrial Development Authority (hereinafter in short called as 'noida) established in the year 1976. After acquisition NOIDA wanted to allot the plots to the members of the society in its planned developed sectors. NOIDA directed the society to furnish list of bona fide members and also directed to deposit 40% of the premium. it has been stated by the plaintiff-appellant that in between the year 1994 to 1996 a total sum of Rs. 36 crores has been deposited. According to the plaintiff-appel lant, NOIDA authority issued allotment letters on 23rd February, 1995, 28th February, 1995 and Ist March, 1995. NOIDA also issued letters seeking more information regarding members of the society. Thereafter a show cause notice was issued regarding members as well as title in respect of land of the society. On 5th May, 1998 a notice was issued canceling the allotment. In the notice of cancellation it has been specified by the authority that the plaintiff-appellant society has acquired land only around 34 bighas and not 292 bighas. It has received compensation only in respect of such area of land. In further, an area of about 65 bighas land vested with the State. So Paras 118 bighas land is concerned, compensation was received by the farmers regarding which dispute between farmers and soci ety is going on. However, the plaintiff-appellant filed a case in M. R. T. P. Commission. Subsequently, on legal notice a writ petition, being Civil Misc. Writ Petition No. 39842 of 2001 (Kendriya Karmchari Sehkari Grih Nirman Samiti Ltd. v. New Okhla Industrial Development Authority) was filed, which was allowed by a Division Bench of this Court on 5th August, 2003. Against said order of this Court, Special Leave Petition No. 18449 of 2003 (New Okhla Industrial Development Authority\/. Kendriya Karmchari Sehkari Grih Nirman Samiti Ltd.) was filed, which was allowed by the Supreme Court by judgment dated 24th April, 2006 and the order of the High Court was set aside. Ultimately, the plaintiff-appellant filed the present suit, being Original Suit No. 273 of 2006 (Kendriya Karamchari Sahkari Greh Nirman Samiti Ltd. v. New Okhla Industrial Development Authority) and made an interim application for injunction under Order 39 Rules 1 and 2 read with Section 151 of CPC therein, to which NOIDA filed its objection and the appellant filed its rejoinder. Specific defence was taken by NOIDA in the Court below that the suit by the plaintiff-appellant is not maintainable. Material facts regarding membership were concealed. Allotment order was obtained by misrepresentation and fraud giving false membership. NOIDA authority made an inquiry and submitted report, from which it appears that the plaintiff appellant is not entitled to 292 bighas of land nor has membership of 1754 members as on 27th February, 1988. The enquiry report reveals that only 34 bighas of land was acquired by the plaintiff-appellant society and its membership is only 546. Therefore, several notices ' were given to prove the membership. When no reply was given by the society, the allotment was cancelled. Suitis barred by Sections 9 and 11 of the Code of Civil Procedure, 1908 (hereinafter in short called as 'cpc' ). The compensation claimed by the society is time barred. There is no possession of members of the society on any plot. The authority possesses power to cancel wrongful allotment.
(3.) ULTIMATELY, the Court below found so in respect of membership and area of land. Further, the Court below held that by such allotment letter/s no legal right can be created in respect of the land. The legal right can only be created upon execution of the appropriate lease deed. General order of allotment neither creates any lien nor is a concluded contract. Element of fraud cannot be avoided. Claim of ownership over 292 bighas of land is prima facie illegal and not proved. The case regarding 65 bighas of land is still pending in the Board of Revenue. In respect of 118 bighas of land compensation has been given by the Land Acquisition Officer to the farmers. The allotted land is not identifiable. As per Section 19 of the Indian Contract Act, since the fraud has been detected, the authority is fully empowered to cancel the allotment of land. Element of prima facie case is relevant in respect of discretionary remedy. Question of public interest cannot be avoided. No case of balance of convenience is available. Therefore, such interlocutory application was rejected by the Court below by order dated 30th May, 2006, which is impugned in this appeal. The reliefs sought in the suit are to be seen in this context which are as follows: "a. That through the decree of declaration it be declared that order dated 5. 5. 1998 passed by defendant Authority cancelling the allotment of plots in favour of the plaintiffs by allotment letter dated 12. 8. 1 994 is null and void and ineffective. The plaintiff society is the lawful allottee of the said land. B. That through the decree of prohibitory injunction the defendant or any-one else acting for or on behalf of the defendant may kindly be restrained from allotting the land allotted to the plaintiff society by allotment letter dated 12. 8. 1994 in favour of anyone else and also be restrained from for executing transfer documents of the said land in favour of anyone else and also from handing physical possession thereof to someone else. C. That through the decree of mandatory injunction the defendant may kindly be directed to deliver possession of the land allotted in favour of plaintiff by allotment letter dated 12. 8. 1 994 and to execute necessary transfer docu ments in favour of the members of the plaintiff society. D. Cost of the suit. E. Any other relief. ";