Allowed

Vinod Kumar Singh and Another v. Greater Noida Industrial Development Authority

Allahabad HC1 May 2019WRIC/52322/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order imposing a heavy late fee on petitioners who had deposited the full flat price. The Court held that since the flat was not ready within three years, the delay was the Authority's fault, and the arbitrary penalty delegation and retrospective memo were unjustified. Possession was directed.

What did the court decide?

The order dated 08.09.2016 imposing the fee was set aside; no further 1% charge is payable; the flat possession must be handed over forthwith.

Vinod Kumar Singh and Another Vs Greater Noida… — Property and Title | Allahabad HC (2019)

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Court No. - 21

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Case :- WRIT - C No. - 52322 of 2016

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Petitioner :- Vinod Kumar Singh And Another Respondent :- Greater Noida Industrial Development Authority Counsel for Petitioner :- Tarun Agrawal Counsel for Respondent :- Anjali Upadhya,Bhanu Bhushan Jauhari,S.C.

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Hon'ble Pradeep Kumar Singh Baghel,J. Hon'ble Rohit Ranjan Agarwal,J.

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Petitioners have instituted this writ petition for issuance of writ of certitiorari to quash the order dated 08.09.2016 passed by the Chief Executive Officer of the Greater Noida Industrial Development Authority, Gautam Budh Nagar.

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A brief reference to the factual aspect would suffice. The Greater Noida Industrial Development Authority (for short GNIDA) issued an advertisement in July, 2007 for calling the application for allotment of built up houses in Sector OMICRON – 1 A and XU-1, Greater Noida, District Gautam Budh Nagar. In the brochure it is mentioned that built up house is under built up housing scheme, which provides all industrial services within green and pollution free environment, easy connectivity with 8 lanes etc.

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In response to the said advertisement, the petitioners made an application for allotment of a residential house, having a plot size 200 sq. meters. The total cost of the house was approximately Rs. 48 lacs. It is stated that the petitioners had deposited a sum of Rs.4,25,000/- as an earnest money. After the said deposit, on 29^th November, 2007, the respondent allotted a house No.194, Block-A, Sector XU-1, Greater Noida to the petitioners and the petitioners were required to deposit Rs. 5,00,000/- extra for the said plot on the ground that it was a corner plot. A copy of the allotment order dated 29^th November, 2007 is on record.

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It is stated that the petitioner no.2 has deposited entire amount in the year 2007 itself. Petitioner claim that after depositing entire sale consideration there remains nothing to be done by the petitioner. The respondent maintained a strong silence for four years and for the first time, the GNIDA on 07.03.2011 issued a communication to the petitioner for the execution of the lease deed. It is stated that after the said letter, other communications were issued on 25^th January, 2012, 14^th September, 2012 and thereafter 21^st February, 2013 asking the petitioners to get the lease deed executed.

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Grievance of the petitioners is that although the petitioners have deposited entire amount, the respondent has imposed penalty of demand of Rs.10,16,316/-. The petitioners were required to deposit late payment

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fee by 4.06.2016.

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Aggrieved by the said demand of the excessive late payment fee amount, petitioners preferred a Writ Petition (C) No.27533 of 2016.

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The said writ petition was finally disposed of vide order dated 2^nd June, 2016, this Court directed the respondent to consider the case of the petitioners and pass appropriate order in accordance with law within six weeks. The Court has also directed that in the meantime the petitioners shall deposit a sum of Rupees One Lac within ten days from the date of passing of the order. It is stated that the petitioners have complied the said directions of this Court and have deposited the amount Rs. 1 lac within stipulated period.

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In compliance of the order of this Court dated 02.06.2016, the Chief Executive Officer has rejected the representation of the petitioners vide order dated 8.09.2016, which is under challenge in this writ petition. The respondent has reiterated its earlier stand demanding a sum of Rs.10,58,662/- as a late fee.

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As can be seen, this Court has permitted the petitioners to deposit 1% of the total premium for extension of time to execute the legal document within a period of four weeks.

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Petitioners have averred in the writ petition that the petitioners have complied direction of this Court dated 13^th December, 2016. The petitioners have submitted a compliance affidavit dated 09.01.2017. In para 3 of the said affidavit, the petitioners have made a statement that the petitioners have deposited vide bank draft of a sum of Rs.4,70,835/- on 28^th December, 2016. It has also been averred that Rs.1,00,000/- has already been deposited by the petitioners on 3.6.2016.

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Pursuant to the earlier order of this Court dated 2^nd June, 2016, the petitioners have deposited a total sum of Rs.5,70,835/- which include Rs. 1 lac which was deposited on 3.6.2016.

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A counter affidavit has been filed. The stand taken in the counter affidavit is that the flat could not be completed before 15^th February, 2011 and, thereafter, a letter was issued on 1^st March, 2011 to the petitioners whereby the petitioners were requested to execute the lease deed for the aforesaid allotted Flat.

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In para 8 of the counter affidavit, it is averred that the period of six months expired on 01.09.2011. However, in compliance of the order of the Full Bench of this Court in case of Gajraj vs. State of U.P. & others, ADJ 2011 (11) 1 wherein a direction was issued that till the approval of Master Plan 2021 from the NCR Planning Board all the development work shall be kept at halt in Greater Noida and, thus, the period from 01.09.2011 till 24.08.2012 was declared as 'Zero Period' and no late lease deed penalty was imposed upon the petitioners for the said period. It is also averred in the counter affidavit, that total 1463 allotments were made under the said scheme, 1450 allottees have already executed

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the lease deed and have taken possession. It is further averred in the counter affidavit that the CEO has been duly authorized in the GNIDA 20^th Board Meeting to decide the Rules and conditions for disposal of the property of the respondent-authority.

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A rejoinder affidavit has been filed, wherein the contents of the counter affidavit have been denied.

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In para 5 of the rejoinder affidavit, petitioners have denied the various communications, which have been mentioned in para 7 of the counter affidavit that they have no knowledge as copy of the letter was never served upon the petitioner and the said letter has also not been filed along with the counter affidavit. Being an intra departmental communication, the petitioners have no knowledge about that.

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It is averred in the rejoinder affidavit that respondents can charge only 1% late lease deed penalty against administrative charges under Section IV Clause I of the brochure. It is further averred that authority does not have power to impose the penalty arbitrarily.

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We have heard Shri Ravi Kant, learned Senior Advocate assisted by Shri Tarun Agrawal and Shri Bhanu Bhushan Jauhari, learned counsel for the respondent.

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Learned senior counsel for the petitioners Shri Ravi Kant submits that the petitioners have deposited the entire premium of the flat and respondent has no authority to impose Rs.10,58,662/- against late lease deed penalty. He has also drawn our attention to Section 13 of the U.P. Industrial Area Development Act, 1976 (for short, Act 1976). He further submits that the Clause-I of Section IV of Brochure deals with the execution of lease deed and possession, wherein it is provided that the allottee will be required to enter into legal documentation and take possession of the house when it is fully constructed. He submits that admittedly as per the averment in the counter affidavit, the house was not constructed within three years as required under Clause-I of the brochure. He further submits that the office memorandum dated 15^th December, 2015 on the basis of which the penalty has been imposed, has been issued by the Officer on Special Duty (O.S.D), who has no authority to issue an office memorandum in respect of a policy decision. He further submits that the advertisement was issued in the year 2007 and the entire amount has been deposited within the stipulated period, hence, this office memorandum, which was issued in December 2015 shall not be operative with the retrospective effect. Lastly, he submitted that the order has to be seen on the basis of the reason mentioned in the order and the reasons can not be supplemented by a supplementary counter affidavit. He submits that in the impugned order, no break up of penalty of Rs. 10 lacs has been mentioned and for the first time, during the course of the hearing, the said break up has been furnished to the Court by way of supplementary counter affidavit. He has placed reliance on the judgment of the Supreme Court in the case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851 , which has been recently followed by

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the Supreme Court in the case of J. Ashoka v. University of Agricultural Science and others, (2017) 2 SCC 609.

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The learned counsel for the respondent, Shri Jauhari submits that for the first two years, no penalty has been imposed upon the petitioners and the OSD, who issued the order dated 15^th December, 2015 was authorized by the CEO to issue the said order. He has invited our attention to a note-sheet, which he has filed today, during the course of argument, to demonstrate that the CEO has approved the office order dated 15^th December, 2015 on 04.12.2015. Lastly, Shri Jauhari submits that the Clause-Q empowers the Executive Officer or any authorized Officer to make such additional/alteration or modification in terms and conditions of the allotment from time to time. Sri Jauhari has very fairly submitted that it is true that petitioners have deposited the requisite amount except late fee payment.

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We have considered the rival submissions and perused the material on the record. The parties are not in conflict of the facts on the following issues:

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(i) Petitioners have deposited the entire requisite premium amount within the stipulated period and there is no default on his part.

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(ii) The flat in question was not ready before 01.03.2011, i.e., within three years of the issuance of the allotment order dated 29.11.2007. Section 13 of the Act of 1976 empowers the authority to impose the penalty and it also provide the mode of the recovery of arrears. Section 13 reads as under:

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“Where any transferee makes any default in the payment of any consideration and money or instalment thereof or any other amount due --- account of the transfer of any site or building by the Authority or any rent due to the Authority in respect of any lease, or where any transferee or occupier makes any default in the payment of any fee or tax levied under this Act, the Chief Executive officer may direct that in addition to the amount of arrears, further sum not exceeding that amount shall be recovered from the transferee or occupier, as the case may be, by way of penalty.”

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In the context the SECTION-IV Clause-I is relevant for our purpose. It reads as under:

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“The allottee will be required to enter into legal documentation and take possession of the house when it is fully constructed. However, the Authority will inform the allottees to do so within 3 years from the date of allotment. The date of lease deed will be informed by Authority in appropriate time. In the event of failure to do so, allottee shall be liable to pay administrative charges at the rate of 1% of the total premium for the extension of one year from the due date given for the execution of legal documents. If the allottee fails to execute legal documents within the extended time, action shall be taken for cancellation or allotment and forteiture of deposited money.”

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From a combined reading of Section 13 and Clause I, it is evident that allottee has to be handed over the possession of the house within three years from the date of allotment and the allottee shall be informed about said fact and he shall execute the lease document and if there is a

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delay or in the event of failure, the allottee shall be liable to pay administrative charges @ 1% of the total premium for the extention of one year from due date. It is also clear that in the instant case, there was no delay in payment of the installments. As noted above, the entire amount has been deposited by the petitioners, only reason for imposing the penalty on the petitioners is the delay in execution of the lease deed.

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Shri Jauhari has vehemently argued that in case of the delay in execution of the lease deed even if the entire amount is paid, the allottee is liable to pay the late fee. Since respondent incurs the administrative charges for keeping a care taker of the vacant flat hence imposing penalty is justified.

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We find that in absence of any statutory provision in terms of Section 13 of the Act, 1976, the imposition of the penalty of Rs.10,58,662/- is without any justification. It is an admitted case of the respondent that the flat was not ready within three years in terms of Clause-I of the brochure. Hence, by not completing the house the default has been made by the respondent itself, because the flat was not handed over to the petitioners within the stipulated period as per Clause-I.

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As regards the office report dated 15^th December, 2016, we find that CEO has no right to sub delegate the power to the OSD. Shri Jauhari has failed to point out any provision of law which empowers the CEO to delegate the power on the OSD. Moreover, he has placed reliance on a document, which has been brought on the record by way of supplementary counter affidavit, which reads as under:

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" वातारसेसहमतहैबादमेपसतावकरे, कायारलयआदेशजारीकरे"

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Shri Jauhari has very fairly submitted that pursuant to the said decision, which is recorded in the note-sheet, no further office order has been issued authorizing OSD to issue the circular.

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Suffice it to say, that in absence of any formal order issued pursuant to the decision taken on the note-sheet. The circular issued by OSD is not sustainable under the law. Regard being had to the fact that the office memo has been issued on 15^th December, 2015, whereas the advertisement was issued in 2007 and the allotment order has already been issued much before 2015.

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Learned counsel for the petitioners Shri Ravi Kant states that that the said office memo cannot be made applicable to the facts of the present case, as the office memo itself does not show that it would be applicable with the retrospective effect since the office memo is silent regarding its operation.

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As regards the reasons mentioned in the impugned order, we have already mentioned our reasons in the earlier part of the judgment for not accepting those findings justified to delay in the execution of the lease deed.

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Learned counsel for the respondents Shri Jauhari could not satisfy us that what benefit, petitioners will get, if even after depositing the entire amount some delay is caused by him in getting the lease deed executed.

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For all the reasons mentioned above, we find that the impugned order needs to be set aside. Accordingly, we set aside the order dated 8.9.2016, we allow the writ petition. The petitioners have already deposited Rs.5,70,835/- in pursuance of the interim order passed by this Court dated 2^nd June, 2016, hence. He is not liable to pay any further amount 1% administrative charge as discussed above. The amount deposited by him shall be adjusted against the administrative charges. We further direct the respondent to hand over the possession of the flat to the petitioners forthwith, if it has not been handed over to the petitioner.

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The writ petition is, accordingly, allowed . No order as to costs.

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Order Date :- 01.05.2019 A.N. Mishra

Vinod Kumar Singh and Another v. Greater Noida Industrial Development Authority

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Vinod Kumar Singh and Another v. Greater Noida Industrial Development Authority

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