JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri Pramod Kumar Srivastava, learned counsel for the petitioner, Sri A.P. Srivastava, learned counsel appearing for respondent Nos. 2, 3 and 4, Sri M.K. Gupta, assisted by Sri Ashish Kumar Singh for respondent No. 5 and learned Standing Counsel. 2. Counter-affidavit and two supplementary counter-affidavits have been filed by the U.P. Avas Evam Vikas Parishad to which rejoinder-affidavit and supplementary rejoinder-affidavits have also been filed by the petitioner. With the consent of learned counsel for the parties, the writ petition is being finally disposed of. 3. Brief facts of the case, as emerge from pleadings of the parties, are; a notification dated 26th June, 1982 under Section 28 of the U.P. Avas Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the 1965 Act) was issued notifying various plots which were proposed to be acquired for a housing scheme including Plot No. 368/1 situate in village Prahlad Garhi, district Ghaziabad. Objections against the proposed acquisition were filed by various tenure holders. The Niyojan Samiti of the U.P.Avas Evam Vikas Parishad held its meetings on 6th, 7th and 8th of April, 1993 and considered various objections. The Niyojan Samiti recommended for exempting portion of various plots including certain plots, which were in the vicinity of Plot No. 368/1, namely, Plot No. 373 area 0.02 acres, Plot No. 374 area 0.03 acre, Plot No. 375 area 0.02 acres and Plot No. 368 area 0.09 acre. A notice under Section 32(1) of the 1965 Act was issued on 28th February, 1987. The award was declared on 27th February, 1989 and possession of certain plots were claimed to be taken by the U.P. Avas Evam Vikas Parishad (hereinafter referred to as the Board) on 8th August, 1989. Plot No. 368/1 was owned by petitioner’s father after whose death name of petitioner’s mother has been recorded in the revenue record. Petitioner’s father late Swarn Singh filed a writ petition being Writ Petition No. 17057 of 1987 challenging the acquisition of Plot No. 368/1 which writ petition was dismissed by this Court vide judgment and order dated 8th September, 1988. In the years 1992, 1994 and 1995, the Board took decisions to exempt plots belonging to Daya Nand and others which was noted in the letter dated 10th February, 1995 issued by the Prabhari Adhikari (Bhumi) of the Board. The petitioner’s father died in the year 1991. In the years 1992, 1994 and 1995, the Board took decisions to exempt plots belonging to Daya Nand and others which was noted in the letter dated 10th February, 1995 issued by the Prabhari Adhikari (Bhumi) of the Board. The petitioner’s father died in the year 1991. Petitioner’s mother made a reference for enhancement of the compensation being Land Acquisition Reference Case No. 64 of 2000, which is said to be pending. Petitioner’s mother made an application on 16th February, 2005 addressed to the Chairman of the Board praying that Plot No. 368/1 be exempted from acquisition. It was stated in the application that the land of agriculturists of adjoining area has already been exempted by the Board. Copy of the letter dated 10th February, 1995 was enclosed alongwith the application dated 16th February, 2005. The petitioner filed a writ petition being Writ Petition No. 71083 of 2005 which writ petition was disposed of on 18th November, 2005 directing the Chairman of the Board to decide the representation dated 16th February, 2005 in accordance with law within a period of four months and for a period of four months parties were directed to maintain status quo. After the order of this Court dated 18th November, 2005 a contempt petition being Contempt Petition No. 1867 of 2006 was filed by the petitioner stating that inspite of the judgment and order dated 18th November, 2005, no decision has yet been taken. The contempt petition was disposed of on 4th May, 2006 directing the Chairman to decide the claim and intimate the petitioner the order so passed. The Chairman of the Board by letter dated 26th June, 2006 forwarded the decision dated 13th March, 2006 issued by the Housing Commissioner by which order petitioner’s representation dated 16th February, 1995 was rejected. The petitioner filed this writ petition in this Court on 28th November, 2006 praying for following relief : “It is, therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to allow this writ petition and to issue a writ, order or direction : (a) in the nature of certiorari quashing the order dated 13.3.2006 and 26.6.2006 passed by the respondent No. 3 and communicated by the respondent No. 2 respectively [Annexure 8 to the writ petition]. (b) in the nature of mandamus directing the respondents to exempt the Plot No. 368/I situated in village Prahlad Garhi, District Ghaziabad on payment of such charges as have been levied against similarly situated persons. (B-1) to declare the notice dated 26.6.1982 under Section 28 and notice dated 19.2.1982 under Section 32 of the Act as illegal and inoperative. (B-2) a writ order or direction in the nature of certiorari quash the auction sale held in favour of respondent No. 5.” 4. The Board subsequent to filing of the writ petition proceeded to hold auction sale of the plots which were acquired which auction was fixed for 15th December, 2007. The petitioner filed a writ petition being Writ Petition No. 61270 of 2007 (Harijinder Singh v. State of U.P. and others) challenging the advertisement published by the Board for settlement of the land in question by way of auction. The said writ petition was dismissed on 12th December, 2007 by a Division Bench of this Court noticing the fact that since petitioner’s earlier writ petition challenging the order rejecting the application for exemption of the land is still pending in which no interim order has been granted, it is open for the petitioner to seek interim protection as he may be advised in the pending writ petition. The petitioner filed Special Leave to Appeal (Civil) No. 24761 of 2007 against the judgment and order dated 12th December, 2007 which was disposed of by the Apex Court on 9th November, 2009. It is useful to quote the order of the Apex Court dated 9th November, 2009 which is as under : “According to the impugned judgment petitioner herein had approached the Allahabad High Court by filing writ petition No. 65428 of 2006 challenging the order of the State Government rejecting his application for exemption of the land from acquisition, which is pending. We request the Division Bench of the High Court to take up the pending writ petition and decide the matter by 31st December, 2009. We make it clear that the High Court will decide the said writ petition uninfluenced by the observations made in the impugned judgment. We further clarify that till the hearing and final disposal of the said writ petition No. 65428/06, proceedings concerning sale confirmation in the connected matter shall not proceed. The special leave petition is disposed of.” 5. We make it clear that the High Court will decide the said writ petition uninfluenced by the observations made in the impugned judgment. We further clarify that till the hearing and final disposal of the said writ petition No. 65428/06, proceedings concerning sale confirmation in the connected matter shall not proceed. The special leave petition is disposed of.” 5. An impleadment application was filed by the petitioner to implead respondent No. 5 in whose favour one of the commercial plots was auctioned which impleadment application was allowed by this Court on 8th March, 2010. This writ petition was placed before this Bench, the Bench presided over by one of us (Justice Ashok Bhushan) under nomination of Hon’ble the Chief Justice dated 27th July, 2011 and thereafter the matter has been heard and is being decided. 6. Learned counsel for the petitioner, challenging the order dated 13th March, 2006 passed by the Housing Commissioner, contended that this Court vide its judgment and order dated 18th November, 2005 directed the Chairman of the Board to decide the representation but the representation has been rejected by the Housing Commissioner which order is not in accordance with the order of this Court and is liable to be set-aside on this ground alone. He further contended that over Plot No. 368/1 there was abadi of the petitioner and although plots adjoining to Plot No. 368/1 have been exempted by the Board but the petitioner’s representation has been rejected. It is submitted that Plot Nos. 373, 374, 375 and 368 were exempted, which were adjoining plots, but petitioner’s prayer for exemption has been refused, which is discriminatory, arbitrary and violative of Article 14 of the Constitution of India. It is submitted that petitioner is still in possession of Plot No. 368/1 and the possession was never taken from the petitioner. The petitioner is running a business of “Thinner” in the plot in question and the petitioner is entitled for exemption of the plot as similar relief has already been granted to adjoining plot holders. The petitioner has placed reliance on a judgment of the Apex Court in the case of Hari Ram and another v. State of Haryana and others, 2010(3) SCC 621 . The learned counsel for the petitioner further submits that actual possession has not been taken from the petitioners at any point of time and the petitioner continues in possession. The petitioner has placed reliance on a judgment of the Apex Court in the case of Hari Ram and another v. State of Haryana and others, 2010(3) SCC 621 . The learned counsel for the petitioner further submits that actual possession has not been taken from the petitioners at any point of time and the petitioner continues in possession. It is further submitted that as per the law laid down by the Apex Court in the case of Balwant Narayan Bhagde v. M.D. Bhagwat and others, AIR 1975 SC 1767 , the actual physical possession was required to be taken which has never been taken and petitioner continues in possession. 7. Learned counsel for the Board, refuting the submissions of learned counsel for the petitioner, contended that portion of petitioner’s plot measuring 364.16 square meters has already been exempted by the Niyojan Samiti, hence the petitioner’s case for exemption has already been considered and partly allowed and there is no occasion to consider the prayer of the petitioner any further for exemption. It is submitted that in adjoining plots to the petitioner’s plot only small area on which abadi was existing, has been exempted, hence the petitioner cannot claim discrimination. It is submitted that petitioner’s plot is situate on 100 feet wide road and is a valuable plot for commercial utility of the Board, hence decision has been taken not to exempt the petitioner’s plot from the scheme. It is further submitted that Chairman under the 1965 Act has no jurisdiction or authority to decide such representations. Petitioner’s mother has already filed a Land Acquisition Reference No. 64 of 2000 for enhancement of compensation and a notice dated 7th December, 2004 was served on the petitioner’s mother for demolition of unauthorised constructions raised over the land of the Board which notice was challenged by the petitioner’s mother by means of a writ petition being Writ Petition No. 3055 of 2005 which was dismissed on 24th January, 2005 with the observation that petitioner of that writ petition may file objection against the show-cause notice. The Housing Commissioner has considered the representation of the petitioner and passed an order on 13th March, 2006 and the land of the petitioner was not considered fit for exemption. Referring to the report of the Niyojan Samiti dated 9th November, 1993, it is stated that no exemption was granted to the petitioner’s land. The Housing Commissioner has considered the representation of the petitioner and passed an order on 13th March, 2006 and the land of the petitioner was not considered fit for exemption. Referring to the report of the Niyojan Samiti dated 9th November, 1993, it is stated that no exemption was granted to the petitioner’s land. The exemption of land was granted by the Niyojan Samiti in favour of other tenure holders i.e. adjoining neighbourers of the petitioner. The writ petition filed by the petitioner’s father being Writ Petition No. 17057 of 1987 having been dismissed on 8th September, 1988, the acquisition proceedings have become final. 8. Sri M.K. Gupta, learned counsel appearing for respondent No. 5, submitted that the land in question was earmarked for community centre. The Board has full jurisdiction and authority to auction the plots in favour of respondent No. 5 which includes plot of the petitioner as well as other tenure holders. He further objected the locus of the petitioner to file this writ petition. He submits that the land in question, according to petitioner’s case, was recorded in the name of petitioner’s mother, hence the petitioner has no locus to challenge the order passed by the Housing Commissioner on the representation submitted by the petitioner’s mother. 9. Learned counsel for the petitioner, in rejoinder, reiterated his submissions. It is further contended that authority competent having not decided the representation, the order dated 13th March, 2006 deserves to be set-aside. It is submitted that the Board in its counter-affidavit has not raised any objection regarding locus of the petitioner to file the writ petition, hence it is not open for the respondent No. 5, who has not even filed any counter-affidavit, to raise any objection regarding locus that too at the time of hearing. It is further submitted that petitioner’s mother is an old lady who has authorised the petitioner to take all legal proceedings. Alongwith the brief arguments submitted on behalf of the petitioner a xerox copy of the special power of attorney dated 13th November, 2005 by Mrs. Gurdev Kaur has been enclosed. It is further submitted that petitioner’s mother is an old lady who has authorised the petitioner to take all legal proceedings. Alongwith the brief arguments submitted on behalf of the petitioner a xerox copy of the special power of attorney dated 13th November, 2005 by Mrs. Gurdev Kaur has been enclosed. It is further submitted by learned counsel for the petitioner that earlier petition filed by the petitioner being Writ Petition No. 71083 of 2005 having been disposed of by this Court directing for deciding the representation dated 16th February, 2005, it is not open for the respondents, at this stage, to raise any objection regarding locus of the petitioner. 10. We have considered the submissions of learned counsel for the parties and have perused the record. 11. Before we proceed to consider the respective submissions of learned counsel for the parties, it is necessary to first consider the objection raised by learned counsel for respondent No. 5 regarding locus of the petitioner to file this writ petition. 12. In the writ petition although a counter-affidavit and two supplementary counter-affidavits have been filed by the Board but in none of the affidavits any objection regarding locus of the petitioner has been taken, rather in the supplementary counter-affidavit dated 3rd September, 2011 sworn by Sri S.K. Srivastava, Executive Engineer of the Board it has been mentioned in paragraph 4 that Gobern Singh was the original owner of the land and after his death property came in the name of Swarn Singh. Paragraph 4 of the supplementary counter-affidavit dated 3rd September, 2011 is as under : “4. That it would not be out of place to mention here that Govern Singh was original owner of the land Khasra No. 368 and after his death the property came in the name of his son Swarn Singyh, and the petitioner inherited the property after the death of Swarn Singh. The objection filed for exemption of the land was duly considered by the Niyojan Samiti and 364.16 sq. mtrs land from Khasra No. 368 was already exempted.” 13. From the above stand taken by the Board, it is clear that the Board never raised any objection regarding locus of the petitioner to file this writ petition, rather the right of the petitioner has been accepted in the land. mtrs land from Khasra No. 368 was already exempted.” 13. From the above stand taken by the Board, it is clear that the Board never raised any objection regarding locus of the petitioner to file this writ petition, rather the right of the petitioner has been accepted in the land. The Board having not raised any objection regarding locus of the petitioner, we do not deem it fit to entertain the objection raised by respondent No. 5 who claims to be subsequent auction purchaser. 14. The petitioner although in the writ petition has prayed that notice dated 26th June, 1982 issued under Section 28 of the 1965 Act and notice issued under Section 32 of the 1965 Act be declared illegal, void and inoperative, the said prayer is liable to be rejected in view of the fact that petitioner’s father had earlier filed Writ Petition No. 17057 of 1987 challenging the acquisition proceedings which writ petition was dismissed by this Court on 8th September, 1988. The said fact has been stated by the petitioner himself in paragraph 6 of the writ petition. Thus challenge to the acquisition raised by the petitioner’s father having already been rejected, the prayer of the petitioner challenging the aforesaid notices cannot be accepted. 15. The first submission of learned counsel for the petitioner is that the order impugned dated 13th March, 2006 passed by the Housing Commissioner deserves to be quashed on the ground that this Court had directed the Chairman of the Board to consider the representation by its judgment and order dated 18th November, 2005 and the Chairman having not decided the issue, the decision by the Housing Commissioner is meaningless. 16. Sri A.P. Srivastava, learned counsel for the Board, in reply to the above submission, contended that Chairman of the Board has no authority or jurisdiction to decide any claim for exemption and the Housing Commissioner being an authority to take decision regarding scheme has rightly rejected the representation. Sri Srivastava, however, could not explain as to when this Court directed the Chairman of the Board to decide representation, how come the Housing Commissioner decided the representation. 17. It is useful to look into the direction of this Court dated 18th November, 2005, which was to the following effect : “Heard learned counsel for the parties. Sri Srivastava, however, could not explain as to when this Court directed the Chairman of the Board to decide representation, how come the Housing Commissioner decided the representation. 17. It is useful to look into the direction of this Court dated 18th November, 2005, which was to the following effect : “Heard learned counsel for the parties. In the facts and circumstances of the case, the respondent No. 2 is directed to decide the representation dated 16.2.2005 (Annexure 5 to the writ petition) in accordance with law within a period of 4 months from the date of filing of a certified copy of this order. For a period of 4 months from today, parties shall maintain status-quo. With these directions, the writ petition is disposed of.” 18. The provisions of the 1965 Act, which are relevant in this context, are necessary to be looked into. Under Section 3 of the 1965 Act, the State Government is empowered to establish a Board by gazette notification which is a body corporate. Section 3(5) provides for constitution of the Board. Section 3(5), as existed at the time when this Court passed the order dated 18th November, 2005, was as follows : “3. Constitution of the Board.—(1) ..... (2) ................ ................ (5) The Board shall consist of an Adhyaksha, who shall ordinarily be a non-official, appointed by the State Government, and the following members: (a) six non-official members, appointed by the State Government, of whom one shall be the Mayor of a Municipal Corporation and two shall be members of the State Legislature, one from each House thereof; (b) the Secretary, Finance Department, Government of Uttar Pradesh, ex officio; (c) the Secretary, Housing Department, Government of Uttar Pradesh, ex officio; (d) the Secretary, Local Self-Government Department, Government of Uttar Pradesh, ex officio, unless he has been appointed as Secretary, Housing Department; (e) the Chief Engineer, Town and Village Planning Department, Uttar Pradesh, ex officio; (f) the Chief Engineer, Local Self Government Engineering Department, Uttar Pradesh, ex officio; and (g) the Housing Commissioner, ex officio, unless he has been appointed as Adhyaksha.” 19. It is relevant to note that Section 3(5) of the 1965 Act was amended by U.P. Act No. 11 of 2007 and again by U.P. Act No. 7 of 2010. By U.P. Act No. 11 of 2007, the sub-section (5) of Section 3 was substituted as follows : “3. It is relevant to note that Section 3(5) of the 1965 Act was amended by U.P. Act No. 11 of 2007 and again by U.P. Act No. 7 of 2010. By U.P. Act No. 11 of 2007, the sub-section (5) of Section 3 was substituted as follows : “3. Constitution of the Board.—(1) ..... (2)................ ................ (5) The Board shall consist of ,- (a) the Principal Secretary/Secretary to the Government of Uttar Pradesh in Housing and Urban Planning Department - Adhyaksha ex officio; (b) three Upadhyakshas who shall be the non-official members appointed by the State Government; (c) the Principal Secretary/Secretary to the Government of Uttar Pradesh in the Finance Department - ex officio member; (d) The Principal Secretary/Secretary to the Government of Uttar Pradesh in the Urban Development Department - ex officio member; (e) the Principal Secretary/Secretary to the Government of Uttar Pradesh in the Bureau of Public Enterprises Department - ex officio member; (f) the Chief Town and Country Planner Uttar Pradesh - ex officio member; (g) the Director, Central Building Research Institute, Roorkee - ex officio member; (h) the Housing Commissioner, Uttar Pradesh Awas Evam Vikas Parishad - ex officio member; (i) the Chief Engineer, Uttar Pradesh Awas Evam Vikas Parishad - ex officio member; (j) the Finance Controller, Uttar Pradesh Awas Evam Vikas Parishad - ex officio member; (k) the Chief Architect Planner, Uttar Pradesh Awas Evam Vikas Parishad - ex officio member.” Again by U.P. Act No. 7 of 2010 in sub-section (5) of Section 3 of the 1965 Act, following clauses were substituted : “(a) The Minister, Housing and Urban Planning Department, Uttar Pradesh - Adhyaksha-exofficio; (a-1) The Principal Secretary, Secretary to the Government of Uttar Pradesh in Housing and Urban Planning Department-Karyakari Adhyaksha/Sadasya ex-ffocio.” 20. Section 15 of the 1965 Act provides for functions of the Board. Clause (a) to Clause (p) of Section 15(1) specifically enumerate functions of the Board. It is relevant to refer Clause (o), which is to the following effect : “(o) to fulfil any other obligation imposed by or under this Act or any other law for the time being in force; and” 21. Section 18 of the 1965 Act provides for types of housing and improvement schemes. Section 28 provides for notice of housing and improvement schemes. Section 30 provides for objections against the scheme. Section 18 of the 1965 Act provides for types of housing and improvement schemes. Section 28 provides for notice of housing and improvement schemes. Section 30 provides for objections against the scheme. Section 31 provides for abandonment, modification or sanction of scheme and Section 32 provides for commencement of scheme. Section 33 provides for alteration of scheme after commencement. Sections 31, 32 and 33 of the 1965 Act, are quoted below : “31. Abandonment, modification or sanction of scheme.—(1) After considering the objections, if any, received in pursuance of the foregoing provisions and after giving an opportunity of being heard to the objectors, the Board may, so for as may be, within six months from the date of receipt of the last such objection, either abandon the scheme, or, if the estimated cost of the scheme does not exceed twenty lakhs of rupees, sanction it with or without modifications, and if the estimated cost of the scheme exceeds twenty lakhs of rupees, submit it to the State Government for sanction with such modifications, if any, as the Board may suggest. (2) The State Government any sanction with or without modifications, or refuse to sanction, or return for reconsideration, any scheme submitted to it under sub-section (1). (3) If a scheme returned for reconsideration under sub-section (2) is modified by the Board it shall be republished in accordance with Section 28- (a) if the modification affects the boundaries of the area comprised in the scheme or involves acquisition of any land or building not previously proposed to be acquired; or (b) if the modification is in the opinion of the Board of sufficient importance to require republication, and on such republication the procedure prescribed in Sections 29 and 30 shall, so for as may be applicable, be followed as if the republication were an original publication under Section 28. 32. Commencement of scheme.—(1) Whenever the Board or the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette. (2) The notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. 32. Commencement of scheme.—(1) Whenever the Board or the State Government sanctions a housing or improvement scheme, it shall be notified in the Gazette. (2) The notification under sub-section (1) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned. (3) Any person who, or a local authority which had filed objections under Section 30, aggrieved by the decision of the Board sanctioning a housing or improvement scheme may, within thirty days from the date of the notification under sub-section (1), appeal to the State Government whose decisions thereon shall be final. (4) If the State Government cancels or alter the scheme as a result of an appeal filed under sub-section (3), the conciliation or alteration shall be notified in the Gazette. (5) The scheme shall come into force- (a) if sanctioned by the State Government, on the date the notification under sub-section (1); (b) if sanctioned by the Board- (i) where no appeal is preferred under sub-section (3), on the expiry of thirty days from the date of the notification under sub-section (1), and (ii) where an appeal is preferred and the scheme is on appeal maintained with or without alteration, on the date of the decision of the appeals and where more appeals than one are preferred, on the date of the decision of the appeal last decided. 33. 33. Alteration of scheme after commencement.—(1) At any time after a housing or improvement scheme has come into force and before it has been fully executed, the Board may for reasons to be recorded alter or cancel it: Provided that- (a) if any alteration is likely to increase the estimated cost of executing a scheme by more than ten percent or if any altered scheme is estimated to cost more than twenty lakhs of rupees, the alteration shall not be made without the previous sanction of the Government; (b) before making any alteration which involves acquisition, otherwise than by agreement, of building not proposed to be acquired in the original scheme, or owing to which any land not previously liable under the scheme to payment of betterment fee becomes liable to such payment, the Board shall serve a notice, in such form, on such persons or classes of persons and in such manner, as may be prescribed, of classes of persons and in such manner, as may be prescribed, of the proposed alteration, and consider the objections, if any, received in pursuance of the notice within thirty days from the service of the notice or within such further time as the Board may, for sufficient cause, allow, and give an opportunity of being heard to the objectors; (c) no scheme estimated to cost over twenty lakhs of rupees shall be altered or cancelled without the previous sanction of the State Government. (2) any alteration or cancellation of a scheme under sub-section (1) shall be notified in the Gazatte and have effect from the date of such notification, so however, that any such modification shall be without prejudice to the validity of anything previously done under the original scheme.” 22. Section 49 of the 1965 Act empowers the State Government to call for the records of the Board and to modify or annul any scheme. Section 55 provides for power to acquire land. Under Section 55 any land or any interest therein required by the Board for any of the purposes of the Act, may be acquired under the provisions of the Land Acquisition Act, 1984 as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule of the 1965 Act. 23. Under Section 55 any land or any interest therein required by the Board for any of the purposes of the Act, may be acquired under the provisions of the Land Acquisition Act, 1984 as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule of the 1965 Act. 23. From the scheme of the 1965 Act, as noticed above, it is clear that after the scheme has commenced, it can be altered by the Board subject to conditions mentioned therein. The State Government has been specifically conferred with the power to call for and examine the records of the Board relating to any housing or improvement scheme which is proposed to be or has been framed by the Board or which is being executed by it and modify, annul or remit for reconsideration to the Board. Thus after the commencement of the scheme, it is only the Board and the State Government which have been statutorily empowered to amend or modify any scheme. 24. In the present case the notification under Section 32 has already been issued on 28th February, 1987 from which date the scheme has commenced. Thus the representation dated 16th February, 2005 submitted for exemption of Plot No. 368/1 could have only been considered by the Board. This Court on 18th November, 2008 directed the Chairman of the Board to consider the representation dated 16th February, 2005. The order has to mean that the Chairman was to take appropriate steps for consideration and the appropriate steps for consideration of the scheme can be no other than placing the matter for consideration of the Board as per Section 33 of the 1965 Act. It is true that Chairman himself could not have taken any decision regarding exemption of the land since no such power is vested in the Chairman under the scheme of the1965 Act. It is useful to note that direction issued by this Court to the respondent No. 2, who was the Chairman, was to the following effect : “The respondent No. 2 is directed to decide representation dated 16th February, 2005 (Annexure-5 to the writ petition) in accordance with law....” 25. The aforesaid order has to mean that Chairman was to take steps that the representation be decided in accordance with law. The aforesaid order has to mean that Chairman was to take steps that the representation be decided in accordance with law. The decision on the representation in accordance with law has to be decision on the representation by the Board. 26. In the present case, the order impugned has been passed by the Housing Commissioner, who under the scheme of the 1965 Act, has no jurisdiction to exempt any land from the scheme after its commencement under Section 32. Although there is provision for delegation of power under Section 12 of the 1965 Act by the Board but there is nothing on the record to come to a conclusion that Housing Commissioner was delegated the power by the Board to exempt any land from its scheme which has already commenced. We are thus fully satisfied that Housing Commissioner had no jurisdiction to decide the representation for exemption of Plot No. 368/1 and the order rejecting the representation deserves to be set-aside on this ground alone. 27. The submission, which has been pressed by the learned counsel for the petitioner is that although the land of tenure holders adjoining to the petitioner’s land have been exempted from acquisition but petitioner’s land has not been exempted, which is discriminatory and arbitrary. In this context it is necessary to refer to the materials brought on the record and the pleadings made on behalf of the Board. In the order of the Housing Commissioner dated 13th March, 2006 reference to the proceedings of the Board dated 19th November, 1994, 10th February, 1995 and 17th June, 2005 have been made in which proceedings decisions regarding exemption of land were taken but the said proceedings have not been brought on the record. In the supplementary affidavit dated 26th July, 2010 filed by the petitioner reference has been made to the letter dated 26th November, 1997 issued by the Executive Engineer of the Board addressed to Daya Nand and Soraj and others of village Prahlad Garhi. In the said letter it has been mentioned that land of Plots No. 360, 361, 366, 364, 365, 369, 370, 373, 374, 375, 376, 380, 381, 383, 384 and 386M, total area 13 bigha, 13 biswa and 5 biswansi have been exempted by resolution dated 1.10.1992. In the said letter it has been mentioned that land of Plots No. 360, 361, 366, 364, 365, 369, 370, 373, 374, 375, 376, 380, 381, 383, 384 and 386M, total area 13 bigha, 13 biswa and 5 biswansi have been exempted by resolution dated 1.10.1992. Reply to the supplementary affidavit has been filed by filing supplementary counter-affidavit sworn by Nagesh Chandra, Executive Engineer of the Board dated 26th September, 2010 in which issuance of the letter dated 26th November, 1997 and exemption of the land as mentioned therein has not been denied. It has been stated that plots shown in yellow colour in the map submitted by the petitioner had been exempted by the Niyojan Samiti itself on hearing of the objections of the land holders and since the petitioner’s land was considered important for the Board, the same was not exempted. It has further been stated that possession of the land was taken by possession memo which was filed alongwith the supplementary counter-affidavit. The plots, which were exempted from the acquisition as was contained in the letter dated 26th November, 1997 were all adjoining plots to the petitioner’s plot and although it is pleaded in the supplementary counter-affidavit that exemption was granted by the Niyojan Samiti itself but a perusal of the plot numbers as mentioned in the letter dated 26th November, 1997 and perusal of the plot numbers as mentioned in the proceedings of the Niyojan Samiti, which held its meeting on 6th, 7th and 8th of April, 1983, indicate that certain plots, which are mentioned in the letter dated 26th November, 1997, were not mentioned in the proceedings of the Niyojan Samiti and further the area of the plots, which were exempted in the proceedings of the Niyojan Samiti, copy of which has been brought on the record alongwith the supplementary counter-affidavit of the Board dated 13th September, 2011, defers from the area mentioned in the letter dated 26th November, 1997. Further Plot Nos. 366, 364, 369 and 370 were not mentioned in the report of the Niyojan Samiti although the same were mentioned in letter dated 26th November, 1997 and area of the aforesaid plots also defers. Further Plot Nos. 366, 364, 369 and 370 were not mentioned in the report of the Niyojan Samiti although the same were mentioned in letter dated 26th November, 1997 and area of the aforesaid plots also defers. For example, in Plot No. 360 only an area of 0.03 acre was exempted by the Niyojan Samiti whereas in the aforesaid letter the area mentioned is 10 biswa, which is much more than the area mentioned in the report of the Niyojan Samiti. One of the dates of the proceedings of the Board has been mentioned as 1st October, 1992 in the letter dated 26th November, 1997 which proceedings have also not been brought on the record. 28. From the pleadings and the materials brought on the record, it is clear that after the commencement of the scheme under Board’s resolution certain other plots were exempted which were in the vicinity of the petitioner’s plot. In the counter-affidavits and the supplementary counter-affidavits relevant details and proceedings regarding exemption of the land subsequent to commencement of the scheme have not been brought on the record nor relevant facts have been clearly pleaded. The petitioner in paragraph 11 of the writ petition referring to the order dated 10th February, 1995 has specifically pleaded that in the year 1995 the respondents have exempted the adjoining plots of similarly situated persons, namely, Daya Nand and others from acquisition. The said submissions have been replied in the counter-affidavit filed by the Board in paragraph 17 in which only this much has been stated that exemption was granted by the Niyojan Samiti. There is no categorical statement in the counter-affidavit and the supplementary counter-affidavits that no exemption was granted after commencement of the scheme whereas the materials brought on the record clearly indicate that Board also has taken decision for exemption of land subsequent to commencement of the scheme. 29. In view of the above facts, it is necessary that petitioner’s case for exemption of Plot No. 368/1 be considered by the Board afresh and the Board after considering the petitioner’s claim may take appropriate decision. 30. The judgment in Hari Ram’s case (supra) relied by the learned counsel for the petitioner supports the submission of the petitioner that the State Government/competent authority cannot discriminatingly exempt land of certain tenure holders and refuse exemption to others. 30. The judgment in Hari Ram’s case (supra) relied by the learned counsel for the petitioner supports the submission of the petitioner that the State Government/competent authority cannot discriminatingly exempt land of certain tenure holders and refuse exemption to others. It is useful to quote paragraph 24 of the said judgment which is to the following effect : “24. As a matter of fact, lands of more than 40 landowners out of the same acquisition proceedings have been released by the State Government under Section 48 of the Act. Some of the release orders have been passed in respect of landowners who had not challenged the acquisition proceedings and some of them had challenged the acquisition proceedings before the High Court and whose cases were not recommended by Joint Inspection Committee for withdrawal from acquisition and whose writ petitions were dismissed. Some of these landowners had only vacant plots of land and there was no construction at all. In most of these cases, the award has been passed and, thereafter, the State Government has withdrawn from acquisition. It is not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or contrary to law. It is also not their case that the release of land from acquisition in favour of such landowners was wrong action on their part or it was done due to some mistake or a result of fraud or corrupt motive. There is nothing to even remotely suggest that the persons whose lands have been released have derived the benefit illegally. As noticed above, prior to October 26, 2007, the State Government did not have uniform policy concerning withdrawal from acquisition. As regards the guidelines provided in the letter dated June 26, 1991, this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis. What appears from the available material is that for release of the lands under the subject acquisition, no policy has been adhered to. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens’ rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory. More so, it is not even the case of the respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated August 19, 2008, this Court gave an opportunity to the State Government to consider the representations of the appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated October 26, 2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated October 26, 2007 was applied. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the appellants’ lands as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released cannot be countenanced and has to be declared bad in law.” 31. In view of the law as laid down by the Apex Court as above, the respondents are obliged to consider the claim of land holders for exemption uniformly on a rational policy and the respondents cannot take decision regarding exemption of land from acquisition arbitrarily and discriminately. 32. In view of the fact that all relevant materials including proceedings of the Board have not been brought on the record by the respondents, it is not possible for this Court to examine such decision and to decide the claim of the petitioner, hence it is in the interest of justice that the Board be directed to consider the claim of the petitioner for exemption of Plot No. 368/1 from the housing scheme. 33. 33. In view of the aforesaid, the Principal Secretary/Secretary to the Government of Uttar Pradesh in the Housing and Urban Planning Department is directed to take appropriate steps so that the Board may consider the claim of the petitioner for exemption of land as submitted by letter dated 16th February, 2005 (Annexure-5 to the writ petition). Looking to the fact that sufficient time has elapsed, we direct that the aforesaid exercise may be completed expeditiously preferably within a period of four months from the date a certified copy of this order is produced before the Principal Secretary. With regard to auction of plot in question and other plots in favour of respondent No. 5, the protection as granted by the Apex Court vide its order dated 9th November, 2009 shall continue till the decision is taken by the Board and the said auction shall abide by the decision of the Board so taken. 34. The writ petition is disposed of accordingly. 35. Parties shall bear their own costs. ——————