JUDGMENT : 1. Heard Sri Anurag Khanna, learned Senior Advocate assisted by Sri Tarun Agrawal, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Senior Advocate and Additional Advocate General assisted by Sri M.N.Singh, learned counsel for the respondent/ Development Authority. 2. By means of present writ petition under Article 226 of the Constitution of India, the petitioner has come up with prayer for a writ of certiorari for quashing of the order dated 26.5.2009 whereby Ghaziabad Development Authority (for short "Authority") has determined the lease of the petitioner for the reason that petitioner did not abide by the terms and conditions of the lease as the land use for which lease was granted, was not performed. 3. Briefly stated facts of the case are that respondent authority executed the lease deed on 29.12.1999 in respect of the land earmarked as "green belt", in favour of the petitioner to develop the amusement park over the leased land. However, when the petitioner did not perform as per terms of the lease, the authority came to determine the same under the order impugned. 4. Assailing the order impugned, learned Senior Advocate, Sri Khanna has argued that order having been passed in violation of the provision contained under Section 18(4) of the U.P. Urban Planning and Development Act, 1973 (for short "Act No. 11 of 1973"), the order impugned is liable to be rendered unsustainable and deserves to be quashed. 5. Relying upon the proviso to sub section 4 of Section 18 of the Act No. 11 of 1973, it has been argued that authority before passing any order determining the lease under sub-section 4 of Section 18 whereby lessor is meant to re-enter the land forfeiting the lease, it is mandatory to issue a show cause notice of such a proposed action. However, in the present case, as he submits, it is quite reflective from various documents that have been brought on record in the form of notice alongwith counter affidavit issued to the petitioner on 12th March, 2005, 20th May, 2005, 6.10.2005 and 23rd March, 2007, that all are referable to a proposed action under Section 27 of the Act No. 11 of 1973 and cannot be construed as a notice contemplated under the proviso prior to the exercise of power under sub section 4 of Section 18 of the Act No. 11 of 1973. 6. 6. Sri Khanna submits that these notices only question the construction/development activity as an unauthorized one without sanction of approval by the authority and are meant for the proposed demolition exercise, whereas under the proviso to sub section 4 of Section 18 of Act No. 11 of 1973, show cause notice will be in respect of the proposed action of determination of lease and cancellation thereof. 7. Sri Khanna has further drawn our attention to the contents of paragraphs 14 and 15 of the counter affidavit to demonstrate that ultimate action in question has been taken only on the basis of these notices as the petitioner had failed to reply the same. He, therefore, submits that the averments as have come to be made amount to complete admission on the part of the respondent authority that they never issued any notice under the proviso to sub section 4 of Section 18 of Act No. 11 of 1973. 8. Learned Senior Advocate has argued that the order passed cancelling the lease and entire proceeding preceding the order of cancellation undertaken by the respondent authority, where de hors the procedure prescribed and so the said order is liable to be held bad and unsustainable. 9. Per contra, learned Senior Advocate Sri M.C. Chaturvedi appearing for contesting respondent, Development Authority has sought to justify the order for the reasons assigned therein. However, alternatively, he has argued that if non issuance of the notice is the only reason that makes the order liable to go, this plea being technical, the matter can be remitted to the authority and the order impugned can be taken to be notice as contemplated under the proviso to sub section 4 of section 18 of Act No. 11 of 1973. He has sought to urge that no pleadings even raised regarding merit of the order nor, any averment has come up to demonstrate that petitioners complied with terms and condition of the lease as stipulated thereunder and thus, he submits that the matter can be revisited before the authority and decision afresh can be directed to be taken. 10. He has sought to urge that no pleadings even raised regarding merit of the order nor, any averment has come up to demonstrate that petitioners complied with terms and condition of the lease as stipulated thereunder and thus, he submits that the matter can be revisited before the authority and decision afresh can be directed to be taken. 10. Having heard learned counsel for the parties and their respective arguments raised across the bar and having perused the record, we are needed to test the order impugned in the light of the provision contained under sub section 4 of Section 18 of the Act, 1973, as we find that in the counter affidavit, respondents have authority has admitted that notices were the same notices as have been appended, to have preceded the order impugned. We proceed to examine the notice filed as CA-1,2 and 3 in the first instance to find as to whether these notices can be termed as the ones contemplated under the proviso to sub section 4 of section 18 of the Act No. 11 of 1973. 11. A bare perusal of the notice as per contents, undoubtedly notices revealed it to be in respect of the some development activity as alleged to have been undertaken by the petitioner without there being any sanction for the same of the authority and so notices are meant for an explanation to be submitted by the petitioner of the proposed action under Section 27 read with section 28 of Act No. 11 of 1973. For better appreciation, Sections 27 and 28 of the Act, 1973 are reproduced as under: 27. For better appreciation, Sections 27 and 28 of the Act, 1973 are reproduced as under: 27. "Order of demolition of building -(1) where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted in relation to the development area, then without prejudice to the provisions of Section 26 (the Vice Chairman or any officer of the authority empowered by him In that behalf may make an order directing that such development shall be removed by demolition, felling or otherwise by the owner thereof or by the person at whose instance the development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons therefore, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, (the Vice Chairman or such officer) may remove or cause to be removed the development and the expenses of such removal as certified by (the Vice Chairman or such officer) shall be recoverable from the owner or the person at whose instance the development was commended or was being carried out or was completed as arrears of land revenue and no suit shall lie in the Civil Court for recovery of such expenses. Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made. (2) Any person aggrieved by an order under Sub-section (1) may appeal to the 4(Chairman) against that order within thirty days from the date thereof and the 5[Chairman) may after hearing the parties to the appeal either allow or dismiss the appeal or may reverse or vary any part of the order. (3)The 6[Chairman) may stay the execution of an order against which an appeal has been filed before it under Sub-section(2). (3)The 6[Chairman) may stay the execution of an order against which an appeal has been filed before it under Sub-section(2). The decision of the 7(Chairman) on the appeal and, subject only to such decision, the order under Sub-section (1), shall be final and shall not be questioned in any Court. The provisions of this section shall be in addition to, and not in or derogation of, any other provision relating to demolition of buildings of contained in any other law for the time being In force. 28. Power to stop development-(I) Where any development in a development area has been commenced or continued in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in Section 14 or In contravention of any conditions subject to which such permission, approval or sanction has been granted, then, without prejudice to the provisions of Sections 26 and 27, the Vice Chairman of the Authority or any officer of the Authority empowered by him in that behalf may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly. Where such development is not discontinued in pursuance of the order under Sub-section (1), the Vice-Chairman or the said officer of the Authority may require any police officer to remove the person by whom the development has been commenced and all his assistants and workmen from the place of development within such time as may be specified in the requisition, and such police officer shall comply with the requisition accordingly. After the requisition under Sub-section (2) has been complied with the Vice-Chairman of the Authority may depute by a written order a police officer or an officer or employee of the Authority to watch the place in order to ensure that the development is not continued. Any person failing to comply with an order under Sub-section (1) shall be punishable with fine which may extend to two hundred rupees, for every day during which the non-compliance continues after the service of the order. No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development under Section 27 or the discontinuance of the development under this section. No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development under Section 27 or the discontinuance of the development under this section. The provisions of this section shall be in addition to and not in derogation of, any other provision relating to stoppage of building operations contained in any other law for the time being in force. (Emphasis added) 12. From a bare reading of the aforesaid provisions, the legislative intents is quite apparent that a person is to undertake every development activity in an area within the territorial limits of the Authority with the prior approval of such authority or else shall face the action of demolition. The development activity therefore, always has to be in tune with the development plan and, therefore, illegal development activity and constructions to that extent are meant to be arrested at the earliest and we find that such a proceeding has nothing to do with the right of a person to the property. 13. Now Development of land has to take place in accord with the develop scheme as per zonal development plan as may be developed and prescribed by the Development Authority and a consequential Master Plan with the approval of the State Government (vide sections 8,910, 11 and 12 of the Act No. 11 of 1973). Section 14 that has an effect of consequential action in case of violation of the plan, under Section 27 of the Act, is reproduced hereunder: 14. Development of land In the developed area.- (1) After the declaration of any area as development area under Section 3, no development of -land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government)-unless permission for such development has been obtained in writing from the [Vice-Chairman) in accordance with the provision of this Act. (2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such-development is also in accordance, with such plans. (2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such-development is also in accordance, with such plans. (3) Notwithstanding anything contained In Sub-sections (1) and (2), the following provisions shall apply in relation-to development of land by any department of any State Government or the Central Government or any local authority- when any such department or local authority intends to carry out any development of land it shall inform the (Vice Chairman] in writing of its intention to do so -giving full, particulars thereof, including any plans and documents, at least 30 days before undertaking such development; in the case of a department of any State Government or the Central Government, if the (Vice-Chairman) has no objections it should inform such department of the same within three weeks from the date of receipt by it under Clause (a) of the department's intention, and if the Vice-Chairman does' not make any objection within the said period the department shall be free to carry out the proposed development; where the C 4[Vice-Chairman) raises any objection to the proposed development on the ground that the development is not conformity with any Master Plan or Zonal Development Plan prepared or intended to be prepared by it, or on any other ground, such department or the local authority, as the case be, shall- (i) either make necessary modifications in the proposal development to meet the objections raised by the 5[Vice-Chairman] or (ii) submit the proposals for development together with the objections raised by the [Vice-Chairman] to the State Government for decision under Clause (d) the State Government, on receipt of proposals for development together with the objections of the 2[Vice-Chairman) may either approve the proposals with or without modifications or direct the department or the local authority, as the case may be, to make such modification as proposed by the Government and the decision of the State Government shall he final: the development of any land begun by any such department or subject to the provisions of Section 59 by any such local authority before the declaration referred to in Sub-section (1) may be completed by that department or local authority with compliance with the requirement of Sub-sections (1) and (2). (Emphasis added) 14. (Emphasis added) 14. So the scheme of Act No. 11 of 1973 in the light of the above provision is that development of an area has to take place as per zonal and Master Plan floated with the approval of the State Government and any constructions thereof invites action under Sections 27 and 28 of the Act No. 11 of 1973. 15. Now Section 17 of the Act, provides for compulsory acquisition of land by the Authority and its disposal as per the plan. Section 18 that deals with the disposal of the acquired land under the Act, is reproduced hereunder in its entirety: 18. Disposal of land by the Authority or the local Authority concerned.- (1) Subject to any directions given by the State Government in this behalf, the Authority or, as the case may be, the local Authority concerned may dispose of any land acquired by the State Government and transferred to it, without undertaking or carrying out any development thereon; or any such land after undertaking or carrying out such development as it thinks fit. to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing the development of the development area according to plan. (2) Nothing in this Act shall be construed as enabling the Authority or the local Authority concerned to dispose of land by way of gift, (***) but subject thereto, references in this Act, to the disposal of land shall be construed as references to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement, right or privilege or otherwise. 2(3) Notwithstanding, anything contained in Sub-section (2), the Authority or the local Authority concerned may create a mortgage or charge over such land (including any building thereon) in favour of the Life Insurance Corporation of India. the Housing and Urban Development Corporation, or a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 or any other financial institution approved by general or special order in this behalf by the State Government. the Housing and Urban Development Corporation, or a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 or any other financial institution approved by general or special order in this behalf by the State Government. 1[(4) Where vacant land has been disposed of under this section by way of lease for making constructions within the time with right of forfeiture of the lease and re-entry upon failure to make constructions within such time, and the lessee fails without sufficient reason, to make the constructions or a substantial portion thereof, within the stipulated time or such extended time as the lessor may grant, the 2[lessor may subject to the provisions of Subsection (4-A) forfeit] the lease and re-enter upon the land: Provided that no forfeiture and re-entry shall be made unless the lessee has been allowed reasonable opportunity to show cause against the proposed action. 3[(4-A) Where a lessee fails to make construction within the stipulated time, and the extended time, if any, under Sub-section (4) so that the total period from the date of lease exceeds five years, a charge at the rate of two per cent of the prevailing market value of the concerned land shall be realised every year from him by the lessor and if from the date of imposition of the said charge a further period of five years elapses the lease shall stand forfeited and the lessor shallre-enter upon the land :) 4[Provided that where the period of five years has expired before the commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997, or where the period of five years expires within one year after such commencement, the charge shall be realizable after a period of one year from the date of such commencement.] (5) Upon such forfeiture and re-entry, the premium paid by the lessee for such land shall be refunded without any interest, after deducting- (a) the amount, if any, due to the lessor under that lease, and (b) a sum equivalent to 5 per cent of the premium, for administrative expenses. (6) Any person aggrieved by an order under Sub-section (4) may, within 30 days from the date of knowledge thereof, prefer an appeal to the District Judge whose decision shall be final. (6) Any person aggrieved by an order under Sub-section (4) may, within 30 days from the date of knowledge thereof, prefer an appeal to the District Judge whose decision shall be final. (7) The land so re-entered upon after forfeiture of lease may be disposed of in accordance with the provisions of Sub-sections (1) and (2)]. (Emphasis added) 16. Sub Section 1 thus provides for transfer of land on such terms and conditions as the Authority may consider expediant for securing development under the development area but of course, according to the plan Sub Section (2) provides for various modes of transfer/disposal of land and lease is one such mode prescribed for. And Sub Section (4) empowers forfeiture of lease and re-entry for violation of terms of lease. 17. The import of the proviso is putting a caveat to the main provision in favour of a lease holder. Sub Section 4 of Section 18, from its bare reading, shows that legislative intent of giving right to the lessor of re-entry upon failure of the lessee to make constructions as provided and contemplated under the lease agreement but that too is when found without sufficient reason, meaning thereby for not undertaking any action or performing as per land use under the lease agreement, one must ensure that it was not for any 'sufficient reason' to record. Here comes the element of adjudication because authority has to evaluate the explanation of the lessee qua the charges of violation of the lease and then adjudicate the issue regarding right to re-entry. The natural corollary is unless a show cause notice is given of the proposed action for the forfeiture of the lease deed and reentry of the lessor, offering a 'reasonable opportunity' to explain no action can be undertaken by the authority forfeiting the lease and making re-entry. 18. So in the entire regime of the Act two different actions/coercive measures are contemplated to meet two different contingencies and the consequential effect of the respective actions are also different and there is no overlapping of procedures to make one notice as substitution of the other merely because the authority is one and the same. 18. So in the entire regime of the Act two different actions/coercive measures are contemplated to meet two different contingencies and the consequential effect of the respective actions are also different and there is no overlapping of procedures to make one notice as substitution of the other merely because the authority is one and the same. The contents of the order impugned since clearly indicate that impugned action has been undertaken for not developing the amusement park to house sport activities like recreational one: swimming, golf course, joyride etc, it clearly speaks of an action as contemplated under sub section 4 of Section 18 and, therefore, in our ultimate conclusion that we arrive is that notices appended as C.A. 1,2 and 3 cannot be read and held to be notices under the proviso to sub section 4 of Section 18 of the Act No. 11 of 1973 to justify the consequential order. 19. Applying the above legal principle to case in hand and in view of the facts discussed above, we find that there is no such notice and, therefore, we find merit in the argument of learned Senior Advocate that the order impugned cannot be sustained in law as it being a result of exercise power de hors the procedure prescribed. 20. It is also sought to be urged by learned Senior Advocate Sri M.C. Chaturvedi, appearing for the respondent that the petitioner has the opportunity to explain his position and meet the charges on merits here itself in this petition. He argues that endeavour of the Court while exercising power under Article 226 should be aimed at achieving substantial justice. He submits that since the pleadings are absolutely silent qua the grounds/charges for violation of terms of the lease, it is writ large on the face of it that petitioner does not have any reasonable explanation to offer to sustain the lease rights. 21. Meeting this above argument, suffice it to say that determination of lease for violation of its terms entail a detail fact finding enquiring and at times personal opportunity of hearing may even become necessary. Such matters cannot be decided on mere affidavits. The element of adjudication as we have already referred to above being involved in the exercise of power under Section 18(4), it is always proper to let the competent authority decide the same. Such matters cannot be decided on mere affidavits. The element of adjudication as we have already referred to above being involved in the exercise of power under Section 18(4), it is always proper to let the competent authority decide the same. Once can argue that appeal involves a question of law so the said remedy may be bypassed in a certain case but task of primary authority cannot be bypassed, more so, in case where for lack of notice, a litigant had neither any opportunity to offer explanation nor, had offered any explanation. 22. However, since the lease has come to be determined for violation of the terms and conditions thereof and grounds have been clearly spelt out in the order, we take it that the petitioner now has requisite notice and so what is required at his end is to submit reply. So we find merit in the argument of learned Senior Advocate Sri M.C. Chaturvedi to the extent that matter may be remitted to the authority concerned to revisit the entire issue and decide afresh in accordance with law and that too without being influenced by any finding returned in the order impugned. 23. In view of the above the order impugned 26.05.2009 (Annexure No. 1 to the writ petition) to the extent it determines the lease and cancels the same and findings are returned in support thereof, is hereby quashed, however, contents thereof and reasons assigned therein are directed to be treated as a notice to the petitioner to submit his reply and offer explanation to the alleged violation of terms and conditions of the lease and non performance of the land use for which land in question was leased out to the petitioner. 24. Accordingly, the petitioner is directed to submit reply/explanation within period of four weeks from today and authority shall consider the reply of the petitioner and thereafter shall proceed to pass order afresh. The authority shall conclude the proceedings as directed hereinabove within a further period of eight weeks from the date of submission of reply of the petitioner. 25. 24. Accordingly, the petitioner is directed to submit reply/explanation within period of four weeks from today and authority shall consider the reply of the petitioner and thereafter shall proceed to pass order afresh. The authority shall conclude the proceedings as directed hereinabove within a further period of eight weeks from the date of submission of reply of the petitioner. 25. We may, however, hasten to add and clarify that if any proceeding has been initiated by the authority under Section 27 of the Act No. 11 of 1973, that will be a separate one and it will be open for the authority to bring that to a logical end in the light of provisions prescribed for in that regards under the Act No. 11 of 1973. 26. The writ petition is allowed to the extent indicated hereinabove and subject to the aforesaid observations and directions but, with no order as to cost.