Disposed

M/S Flexi Pack Polyfilms Pvt. Ltd. v. Principal Secretary and 2 Others

Allahabad HC19 Nov 2018WRIC/23544/2017

Case brief

AI extract

What is this about?

The Court set aside a non-speaking revisional order cancelling a plot allotment. It directed the revisional authority to grant the subsequent allottee an opportunity of hearing before deciding the validity of the cancellation and to decide the petitioners representations challenging a new demand for dues.

What did the court decide?

The impugned order is set aside; the revision and challenges to the new demand are remitted for fresh consideration after hearing the petitioner.

M/S Flexi Pack Polyfilms Pvt. Ltd. Vs Principal… — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 36

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Case :- WRIT - C No. - 23544 of 2017

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Petitioner :- M/S Flexi Pack Polyfilms Pvt. Ltd. Respondent :- Principal Secretary And 2 Others Counsel for Petitioner :- Ashish Mishra Counsel for Respondent :- C.S.C.,Anjali Upadhya,B.B.Jauhari,Bhanu Bhushan Jauhari,Uma Nath Pandey

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard Sri Sant Sharan Upadhyay, learned Advocate assisted by Sri Yash Deo Upadhyay, learned counsel for the petitioner and Sri Navin Sinha, learned Senior Advocate assisted by Sri Uma Nath Pandey, learned counsel for the respondent no. 3. Sri B.B. Jauhari, learned Advocate has put in appearance on behalf of the respondent no. 2.

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The present writ petition is directed against the order dated 21.12.2016 passed by the State Government namely the Principal Secretary (Revisional Authority), Industrial Development, Anubhag4, Government of U.P., Lucknow, under Section 41(3) of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "the Act, 1973").

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The said revision was filed by respondent no. 3 assailing the order dated 26.7.2016, whereby the allotment of the plot in question made in his favour was cancelled.

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It appears that certain demand was raised by the respondent/Greater Noida Development Authority vide order dated 1.6.2016. Challenging the validity of the said order, the respondent no. 3 filed a Writ-C No. 30388 of 2016 (Puneet Mehrotra vs. Greater Noida Industrial Development Authority), which was decided on 6.7.2016.

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This Court having noticed the fact that the issue being raised therein were factual controversy, the petitioner/respondent no. 3 herein was having statutory alternative forum for redressal of his grievances relegated him to avail the remedy of filing revision under Section 41(3) of the Act, 1973.

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After the decision of the said writ petition, on the revision filed by the respondent no. 3, comments of the Greater Noida Development Authority had been obtained. The order impugned records that the Development Authority took the stand in the reports submitted before the revisional authority that the respondent no. 3 was a defaulter. As he had not paid the additional compensation demanded as per the directions of this Court in Writ-C No. 37443 of 2011 (Gajraj And Others vs. State Of U.P. and Others). Further, the lease deed penalty was also demanded on account of the delay in making payment of premium by the opposite party/respondent no. 3.

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The respondent no. 1 had allowed the revision on the ground that

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the disputed period of non-payment shall be treated as 'zero' period and the outstanding amount shall be rescheduled in installments.

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It has further been recorded that in the 106th Board meeting of the Greater Noida Development Authority, it had taken a decision to grant "grace period" and to extend the said period uptil 30.11.2016 for payment of premium. There was, therefore, no occasion for the Development Authority to issue notice prior to expiry of the said period.

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The order passed by the respondent no. 1 as noted above is under challenge in the present petition by a person to whom allotment of the plot in question had been made on 12.8.2016, after the public notice/advertisement was issued for allotment of the industrial plots available with the Greater Noida Development Authority.

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The petitioner submits that the order impugned is a non-speaking order. There was complete non-application of mind on the part of the State Government, inasmuch as, the lease deed penalty and the additional amount of compensation payable under the orders of this Court by the respondent no. 3 cannot be rescheduled. Moreover, the decision taken in the 106th Board meeting of the Greater Noida Development Authority has nothing to do with the demands raised by the Greater Noida Development Authority vide order dated 1.6.2016. As a consequence of non-payment on the part of the respondent no. 3, the allotment was cancelled vide order dated 26.7.2016 and further the petitioner having been allotted the plot-in-question pursuant to a public advertisement, was entitled for getting an opportunity of hearing so as to place the correct facts before the State Government/revisional authority.

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Sri B.B. Jauhari, learned counsel for the respondent/Greater Noida Development authority supported the case of the petitioner with the assertion that the allotment in favour of the petitioner was made after the plot in question was declared vacant with the cancellation of the allotment in favour of the respondent no. 3 vide order dated 26.7.2016. As far as the demand raised by it vide order dated 1.6.2016, attention of the Court is invited to the letter dated 12.1.2017 which was written by the Greater Noida Development Authority after decision of the State Government, which is also under challenge in the present petition.

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It is submitted that an amount of Rs. 1,02,52,714/- was outstanding against the respondent no. 3 as on 12.1.2017, inasmuch as, the lease deed penalty and the additional compensation payable under the directions issued by this Court, could not have been rescheduled as there is no such policy or provision for doing the same.

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At this stage, Sri Navin Sinha, learned Senior Advocate appearing for the respondent no. 3 submits that the demand raised before Greater Noida Development Authority vide letter dated 12.1.2017 has further been challenged before the State Government vide representations dated 3.3.2017 and 23.3.2017, which are pending consideration.

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In rejoinder affidavit, Sri Sant Sharan Upadhyay, learned Advocate for the petitioner has informed that a Writ-C No. 7469 of 2017 (Puneet Malhotra vs. State of U.P. and 2 others) was filed by respondent no. 3 to challenge the demand raised vide order dated 12.1.2017. The respondent no. 3 has again been relegated by this Court to avail the benefit of revision before the State Government vide order dated 20.2.2017 passed by the Division Bench of this Court.

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In the crux, the dispute being raised by the petitioner in the present writ petition regarding restoration of the allotment made in favour of respondent no. 3 is the subject matter of pending revision raising revised demand by the Greater Noida Development Authority vide order dated 12.1.2017.

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Further, a perusal of the order dated 21.12.2016 indicates that while allowing the grace period i.e. issuing direction to the Greater Noida Development Authority for rescheduling the outstanding dues, the respondent no. 1 had not adverted itself to the stand taken by the Greater Noida that the reschedulement could not be done of the demands of lease penalty and additional compensation. On the merits of the order dated 1.6.2016 passed by the Greater Noida Development Authority, thus, nothing has been stated in the order impugned.

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The order impugned only records that a decision was taken in the 106th Board meeting for granting grace period uptil 30.11.2016 for payment of the outstanding premium but as to whether the said decision pertains to the lease deed penalty or additional compensation demanded by the Greater Noida Development Authority, nothing is reflected from the order impugned.

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Moreover, the petitioner, to whom allotment has been made on 12.8.2016 after the public advertisement was made on 30th May, 2016, has not been given opportunity of hearing.

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In the opinion of the Court, after cancellation of allotment in favour of the respondent no. 3, third party right, by allotment of the plot in question in favour of the petitioner, has been created after a public advertisement. The said fact was duly brought to the notice of respondent no. 1. It was, therefore, incumbent upon the respondent no. 1 to issue notice to the petitioner and to grant him opportunity of hearing so that correct facts would be placed before him.

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For the aforesaid, the order impugned dated 21.12.2016 being a non-speaking order having been based without grating opportunity to the subsequent allottee, cannot be sustained. While setting aside the said order, the matter is being relegated to the respondent no. 1 for fresh decision after giving due opportunity to the petitioner herein to submit his objections.

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The representations dated 3.3.2017 and 23.3.2017 filed by the respondent no. 3 challenging the demand raised vide letter dated 12.1.2017, shall also be considered alone with the revision filed against the cancellation order dated 26.7.2016 being remitted herein for fresh consideration.

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Due consideration shall be given to all the circumstances brought before the respondent no. 1 by the Greater Noida Development Authority and that of the petitioner/objector herein.

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It goes without saying that the revision filed by the respondent no. 3 under Section 41(3) of the Act, 1973 alongwith the representations dated 3.3.2017 and 23.3.2017, shall be decided strictly in accordance with law.

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Till fresh decision is taken by the respondent no. 1, the parties shall maintain status quo with regard to the plot in question as on the date. They are restrained from creating any third party right over the plot in question or alienate the same in any manner.

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Subject to the above observations and directions, the writ petition is disposed of .

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Order Date :- 19.11.2018 Brijesh

M/S Flexi Pack Polyfilms Pvt. Ltd. v. Principal Secretary and 2 Others

Case brief

What is this about?

What did the court decide?

M/S Flexi Pack Polyfilms Pvt. Ltd. v. Principal Secretary and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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