Partly allowed

Apace Buildtech Pvt. Ltd. Having Its Office at D-53 Thru. Its Authorised Signatory v. State of U.P Thru. Deptt. of Industrial Development Thru. Addl. Chief Secy. and 2 Others

Allahabad HC30 May 2022/3010/2022

Case brief

AI extract

What is this about?

The court held that a revision petition against a demand notice was not maintainable as the notice was not a disposed order. The petition to quash the notice was dismissed because reviewing the notice would require deciding the merits of the agreement. However, the writ for a direction regarding the Zero Period Policy was allowed.

What did the court decide?

The writ petition was disposed of with a direction to the New Okhla Industrial Development Authority to take a reasoned decision on the petitioner's claim for Zero Period Policy within two months.

Apace Buildtech Pvt. Ltd. Having Its Office at… — Writ and Judicial Review | Allahabad HC (2022)

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Court No. - 2

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Case :- WRIT - C No. - 3010 of 2022

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Petitioner :- Apace Buildtech Pvt. Ltd. Having Its Office At D- 53 Thru. Its Authorised Signatory Respondent :- State Of U.P Thru. Deptt. Of Industrial Development Thru. Addl. Chief Secy. And 2 Others Counsel for Petitioner :- Ashish Shukla

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Counsel for Respondent :- C.S.C.,Waseeq Uddin Ahmed

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Subhash Vidyarthi,J.

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Heard Sri J.N. Mathur, learned Senior Advocate assisted by Sri Siddharth Nandwani for the petitioner, learned Standing Counsel representing the State of U.P. and Sri Waseeq Uddin Ahmed, learned counsel representing the New Okhla Industrial Development Authority.

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By means of this petition Court's jurisdiction has been invoked under Article 226 of the Constitution of India with a prayer to quash an order dated 28.10.2020 passed by the State Government in purported exercise of its revisional powers vested in it under Section 41(3) of the U.P. Planning and Development Act read with Section 12 of U.P. Industrial Area Development Act, 1973.

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Apart from seeking quashing of the order dated 28.10.2020, a prayer has also been made to quash demand notices dated 17.01.2018 and 14.01.2020 which are contained in Annexure nos. 2 and 3 to the writ petition. The petitioner has made yet another prayer seeking a direction to the respondent-New Okhla Industrial Development Authority to decide the claim of Zero Period, said to have been preferred by the petitioner in terms of the policy decision of the said Authority embodied in the

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circular dated 28.03.2016.

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So far as, the prayer relating to quashing of the order dated 28.10.2020 passed by the State Government is concerned, learned Senior Advocate has argued that before passing the said order adequate and reasonable opportunity of hearing to the petitioner was not provided, as such, the said order is vitiated for want of observance of principles of natural justice.

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When we examine the said order dated 28.10.2020 in the light of the submissions made by the learned counsel for the petitioner, what we find is that as per the recitals made in the said order the revision petition was received in the State Government on 13.09.2019 and hearing took place on 17.10.2020 through video conferencing/online, however, no one was present on behalf of the petitioner in the said hearing, though, on behalf of the Authority, Additional Chief Executive Officer was present. Nothing is indicated in the said order as to whether the petitioner was served with a notice intimating him that the date of hearing was 22.10.2021. Moreover, the period preceding and even succeeding 22.10.2020 not has been conducive for the reason of the pandemic caused by Covid-19. Even if the recitals made in the impugned order dated 28.10.2020 are taken to be correct, it is clear that before passing the said order adequate opportunity of hearing to the petitioner was not provided.

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Having observed as above, what we notice is even if we quash the order dated 28.10.2020 passed by the State Government for the reason of non observance of principles of natural justice, the matter will have to be remitted to the State Government for decision of the revision petition afresh.

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However, at this stage we need to examine, as to whether, the alleged revision petition preferred by the petitioner was

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maintainable to be entertained in terms of the provisions contained in Section 41(3) of the U.P. Planning and Development Act read with Section 12 of U.P. Industrial Area Development Act, 1976. Section 12 makes certain provisions of U.P. Urban Planning and Development Act, 1973 as enacted and modified from time to time to be applicable to the Authorities created under U.P. Industrial Area Development Act, 1976. Section 41 of the Urban Planning and Development Act is one of the provisions which has been made applicable in terms of the Section 12 of the 1976 Act.

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Section 41 of the U.P. Urban Planning and Development Act is extracted herein below:-

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"41. Control by State Government.-

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(1) The [Authority),the Chairman or the (Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

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(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the [Authority, the Chairman or the Vice-Chairman) under this Act any dispute arises between the authority, the Chairman or the Vice-Chairman) and the State Government the decision of the State Government on such dispute shall be final.

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(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the rcords of any case disposed of or order passed by the [Authority or the Chairman) for the purpose of satisfying itself as to the legalitv or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:

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Provided that the State Government shall not pass an order prejudicial to any person without affording such person a

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reasonable opportunity of being heard.

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(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called ii question In any court.]"

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Thus, the afore quoted provision contained in Section 41 clearly provides that State Government will have some control over the functions of the Authorities, however, such control, in our opinion, has to be confined within the four corners of the provisions contained in the said Section itself and thus such control cannot travel beyond the scope of Section 41. SubSection 3 of Section 41 of the 1973 Act provides that State Government either on its own motion or on an application made may call for records of any case disposed of or order passed by the Authority/Chairman for purposes of satisfying itself the legality or propriety of any order passed or direction issued. It further permits the State Government to pass such orders or issue such directions as may be thought fit.

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Thus, the condition preceding for the State Government to exercise its powers under Section 43(3) of the 1973 Act (which in fact is a revisional power) are that there has to be a record of a case disposed of or there has to be an order passed by the Authority/Chairman. In absence of any case disposed of or order passed by the Authority/Chairman, in our considered opinion State Government is not vested with the revisional power.

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In the aforesaid background of the legal position regarding the scope of revisional jurisdiction under Section 43(3) of the 1973 Act, we now need to examine as to whether the revision petition preferred by the petitioner was maintainable or does it come within the purview of Section 41(3) or not. Admittedly, the revision petition by the petitioner was filed against the demand notice dated 17.01.2018. The said demand notice issued by

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Assistant General Manager(Commercial) of New Okhla Industrial Development Authority directed the petitioner to make certain deposits outstanding amounts in relation to a tripartite agreement entered into between the petitioner, its parent company and the Noida authority.

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The demand notice dated 17.01.2018, in our considered opinion, cannot be termed to be a case disposed of or an order passed by the Noida authority. In this view, the revision petitioner under Section 41(3) of the Urban Planning and Development Act against the demand notice dated 17.01.2018 is not maintainable.

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Sri J.N. Mathur has drawn our attention to Section 13 of the 1976 Act which permits imposition of penalty and provides mode of recovery. As stated by Sri J.N. Mathur, learned Senior Advocate, the demand notice dated 17.01.2018 is referable to Section 13 and since imposition of penalty would amount to passing an order for imposing penalty, hence, the writ petition would be maintainable. We are afraid, we cannot agree with the submission made by the learned Senior Advocate for the reason that when we examine the demand notice dated 17.01.2018, it does not anywhere imposes any penalty; rather it only requires the petitioner to deposit certain outstanding amounts in relation to the tripartite agreement entered into between the petitioner, its parent company and the Noida Authority. Thus, we conclusively hold that the revision petition preferred by the petitioner in this case is not maintainable under Section 41(3) of U.P. Urban Planning and Development Act read with Section 12 of the 1976 Act. Accordingly, no fruitful purpose would be served even if we quash the order passed by the State Government on 18.10.2020.

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Regarding the other prayer in respect of the demand notices

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dated 17.01.2018 and 14.01.2020, we refrain to exercise our jurisdiction in this case under Article 226 of the Constitution of India for the reason that any liability or obligation arising out of the tripartite agreement cannot be decided at this stage in these proceedings under Article 226 of the Constitution of India.

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So far as the prayer relating to a direction to be issued to the Noida Authority for deciding the claim of the petitioner in respect of Zero Period Policy is concerned, it is true that such Policy was issued on 18.03.2016 and because of various reasons the petitioner has represented its case firstly on 23.03.2016 i.e. before promulgation of said Policy on 28.03.2016 and thereafter on 07.11.2016 and again on 28.12.2017 as well.

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Learned counsel representing the New Okhla Industrial Development Authority was required to seek instructions as to whether any decision on the prayer made by the petitioner for grant of benefit of Zero Period Policy has been taken or not. Mr. Waseeq Uddin Ahmad, learned counsel representing the New Okhla Industrial Development Authority on the basis of instructions stated that in fact the petitioners are not entitled to said benefit, however, he has utterly failed to specifically state that the petitioner's claim for benefit of Zero Period Policy was ever rejected.

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In the aforesaid view of the matter, without entering into the merits of the claim of the parties, we dispose of this writ petition with a direction to New Okhla Industrial Development Authority to take a reasoned decision on the claim of the petitioner in respect of the Zero Period Policy with expedition, say, within a period of two months from the date a certified copy of this order is produced before the Authority.

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So far as the prayers nos.4 and 5 made in the writ petition are

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concerned, we leave it open to the petitioner to agitate the said prayers before the New Okhla Industrial Development Authority. In respect of prayer nos.6 and 7, we refrain from making any observation in view of what has been stated herein above in the preceding paragraphs of this judgement.

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There will be no order as to costs.

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(Subhash Vidyarthi, J.) (Devendra Kumar Upadhyaya, J.) Order Date :- 30.5.2022 Anurag

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Digitally signed by ANURAG SINGH Date: 2022.06.03 17:24:23 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Apace Buildtech Pvt. Ltd. Having Its Office at D-53 Thru. Its Authorised Signatory v. State of U.P Thru. Deptt. of Industrial Development Thru. Addl. Chief Secy. and 2 Others

Case brief

What is this about?

What did the court decide?

Apace Buildtech Pvt. Ltd. Having Its Office at D-53 Thru. Its Authorised Signatory v. State of U.P Thru. Deptt. of Industrial Development Thru. Addl. Chief Secy. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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