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Allahabad High Court · body

2020 DIGILAW 779 (ALL)

Rakesh Agarwal v. State of U. P.

2020-04-16

PANKAJ MITHAL, PRADEEP KUMAR SRIVASTAVA

body2020
JUDGMENT : 1. In pursuance to the advertisement dated 03.02.2004 issued by the Greater Noida Industrial Development Authority (GNIDA), the petitioner vide order dated 04.06.2004 was allotted plot No.1 Cassia Fistula Estate, Sector CHI-IV of 1000 sq. mtrs. 2. On actual measurement there was some extra land of 22.4 sq. mtrs. in the aforesaid plot for which additional premium was demanded and charged. 3. After the petitioner completed all formalities and fulfilled the conditions of allotment by depositing the premium amount, lease rent etc., a registered lease deed in respect to the whole of the said plot having an area of 1022.4 sq. mtrs. was executed in his favour on 17.12.2008. Consequently, its possession was also delivered on 18.12.08 to him. 4. The petitioner has preferred this writ petition seeking a direction that the location of the said plot from that of a corner plot adjoining to the green belt may not be changed and to declare any change or proposed change in this regard to be illegal and arbitrary. In other words, the plot should remain in its original form as a corner plot facing green belt. 5. The argument is that the petitioner had paid 15% additional amount as location charges in accordance with the terms and conditions of the allotment and that under the allotment order as well as the lease deed, the petitioner was allotted and delivered possession of a corner plot facing 18/24 meter wide road adjoining the green belt. The said location cannot be changed after the execution of the lease deed by converting the green belt into an another plot. 6. The petitioner in response to one of his letters pertaining to the lay out plan of the scheme has been informed vide letter dated 30.06.2009 issued by the General Manager (Niyojan & Vastu) that according to the approved lay out plan plot No.1, Cassia Fistula Estate, Sector CHI-IV which has been allotted to the petitioner is not a corner plot. 7. It is alleged that this is totally in contravention of the terms and conditions of the allotment order and the lease deed. Therefore, the status of the said plot as allotted and leased out to the petitioner be restored as a corner plot. 8. 7. It is alleged that this is totally in contravention of the terms and conditions of the allotment order and the lease deed. Therefore, the status of the said plot as allotted and leased out to the petitioner be restored as a corner plot. 8. We have heard Sri B.C.Rai, learned counsel for the petitioner and Sri B.B. Jauhari, learned counsel for the respondent No.2 (GNIDA) and have perused the pleadings exchanged between the parties. 9. GNIDA in the counter affidavit has admitted that in accordance with Clause A-7.2 of the brochure which provide for location charges for corner plots, plots facing park/green belt or plot facing 18/24 meter wide road, premium of 5% for the benefit of each type of location was payable and that the petitioner had paid a total of 15% additional premium over and above the fixed rate of premium on account of superior location. However, the stand taken is that the plot allotted to the petitioner was not a corner plot. In fact the plan annexed with the lease deed was not prepared by the Planning Department and therefore, it was incorrectly described as the corner plot. The area of the green belt in the entire sector is as per the approved standard and does not stand reduced on account of carving out of an additional plot in the area which the petitioner claims to be green belt. The lay out plan was amended after a report was submitted by the Senior Executive (Planning) on 05.12.2006 on the recommendation made by the Deputy General Manager (Planning) on 13.12.2006 for amending the lay out plan. Due to the change in the lay out plan to some extent, the boundaries of the plot allotted to the petitioner was altered and at present the plot allotted to the petitioner is not the corner plot or adjacent to the green belt. 10. In short, the only issue which arises in this petition, on the aforesaid pleadings and rival claims, is whether the location of the plot allotted to the petitioner facing 18/24 meter wide road; adjoining/facing park/green belt; and as a corner plot for which the petitioner has been charged additional premium to the extent of 5% for each location benefit, total 15% of the fixed premium can be altered or changed by the GNIDA after the execution and registration of the lease deed simply by an executive fiat. 11. There is no dispute that GNIDA issued an advertisement on 03.02.2004 inviting applications for allotment/lease of residential plots inter alia in Cassia Fistula Estate, Sector CHI-IV. 12. In pursuance of the above advertisement, the petitioner also applied for allotment of one residential plot of an area of 1000 sq. mtrs by depositing the registration money of Rs.3,10,000/-. The premium amount was intimated to be Rs.26,22,600/-with location charges for all the three beneficial locations as 15% of the premium fixed. 13. The petitioner deposited all the aforesaid amounts including the revised rates and the lump sum premium amount whereupon lease deed was executed in his favour on 17.12.2008 and the possession was delivered on 18.12.2018. 14. The brochure containing the terms and conditions of allotment/lease apart from other things vide Class A-7 provided that the area of the plot may slightly vary at the time of handing over possession and therefore, premium may also proportionately vary accordingly. It further vide Clause A-7.2 provides as under:- A-7.2 Location Charges For Corner plots: 5% of the premium For plots facing park/green belt: 5% of the premium For plots facing 18/24 m. wide road: 5% of the premium Note For plots having more than one location benefit, location charges will be additive. 15. The allotment-cum-allocation letter dated 04.06.2004/17.07.2004 clearly provides that the location of the plot allotted to the petitioner is adjoining to green belt and that it is a corner plot facing 18/24 meter wide road for which 15% of the premium amount has been charged as additional premium amount. 16. The possession certificate dated 18.12.2008 mentions the area and the dimensions of the plot allotted to the petitioner as 1022.40 sq. mtrs. and that its boundaries are as per the lease plan enclosed. The enclosed lease plan clearly describes that the aforesaid plot No.1 is having an area of 1022.40 sq. mtrs. and on its one side is plot No.1-A & on the other side is the green belt. The plot faces 18 meter wide road and on its back is plot No.14. Thus, making the plot a corner plot facing 18 mtrs wide road with green belt on one side. 17. The lease deed dated 17.12.2008 is also on record and apart from mentioning the other details of the plot it mentions that the boundaries of the plot are as per the lease plan. Thus, making the plot a corner plot facing 18 mtrs wide road with green belt on one side. 17. The lease deed dated 17.12.2008 is also on record and apart from mentioning the other details of the plot it mentions that the boundaries of the plot are as per the lease plan. Again the same lease plan is enclosed with the lease deed as is part of the allotment letter. It again describes the boundaries of the plot with green belt on one side and 18 meter wide road on the front thus making it a corner plot. 18. In view of the aforesaid facts and circumstances of the case, it is ample clear that the plot allotted to the petitioner was a corner plot facing 18 mtrs. wide road and green belt on one side for which additional premium was charged from him. 19. The letter of the GNIDA dated 30.06.09 of the General Manager (Niyojan & Vastu) clearly states that according to the approved lay out plan the aforesaid plot is not a corner plot. 20. It is accepted in the counter affidavit that in the area shown as green belt adjoining to the aforesaid plot, an additional plot has been carved out. Thus, materially changing the location of the said plot. On carving out of the aforesaid additional plot not only the adjoining green belt to the plot goes away but it also reduces its status from that of a corner plot to any other normal plot. 21. There is no dispute that as per the allotment order, lease deed and the site plan forming part of it, the plot allotted to the petitioner is a corner plot with green belt on one of its side and 18 mtrs. wide road in its front. 22. Now the sole question is whether GNIDA is justified in changing the location of the said plot after the execution and registration of the lease deed with the map of plot allotted forming part of it with boundaries. 23. The submission that the site plan annexed with the possession letter and the lease dead is incorrect has no substance and cannot be accepted. The allotment letter/order mentions the same boundaries of the plot as described in the lease plan. 23. The submission that the site plan annexed with the possession letter and the lease dead is incorrect has no substance and cannot be accepted. The allotment letter/order mentions the same boundaries of the plot as described in the lease plan. The lay out plan was amended and corrected in the year 2006 as stated earlier whereas the lease deed was extended and registered on 17.12.2008 enclosing the lease plan. The lease plan enclosed with it is presumed to be according to the amended lay out plan of the year 2006. There is no explanation as to why the lease plan could not be corrected as per the amended lay out plan before making it a part of the lease deed. No effort was made even to rectify the allotment letter/order which describes the boundaries in words also. Thus, GNIDA have not cared at any stage to correct/rectify the aforesaid lease plan despite coming to know that it is incorrect. 24. Sri Jauhari, draws the attention of the court to condition Q-1 of the brochure which provides that the Chief Executive Officer or any officer authorised by him has the right to make such additions/alterations/modifications in the terms and conditions of allotment from time to time as may be considered just or/and expedient. 25. A similar condition is contained in Clause-F of part-3 of the lease deed which provides that the Chief Executive Officer reserves the right to make such alterations or modifications in terms and conditions as may be considered just and expedient. 26. A reading of the aforesaid two Clauses, no doubt establishes that the Chief Executive Officer has the power to add, alter or modify the terms and conditions of allotment/lease but it fails to describe the manner in which the same can be added, altered or modified or till which stage it can be done. 27. The right reserved by the Chief Executive Officer to alter and modify the terms and conditions of allotment is in context with the general terms and conditions viz the nature of the lease, its term, mode of its cancellation, the mode of payment and other liabilities and not in respect of alteration of the status/boundaries of the plot allotted which would continue to be the same as mentioned in the allotment letter, lease deed or the lease plan unless changed in a legal and valid manner. 28. 28. The Chief Executive Officer in exercise of the powers conferred by Q-1 of the brochure would have made changes in the terms an conditions of the lease or the nature of the plot before the execution of the lease and its registration but it was not done. He is not authorised or empowered to change the terms and conditions of the lease deed which has been registered simply by an administrative order. 29. Even if clause-F of part 3 of the lease is pressed in motion to change the nature of the plot or its boundaries it has to be done in accordance with law. 30. It is well acknowledged principle of contract law that the parties are bound by the terms and conditions of the agreement and the basic rule is that the promissory must perform exactly what he has undertaken to do. The application of this rule is absolute and no party to a contract can avoid the same. Thus, where the terms and conditions of the agreement/lease expressly or impliedly provides that the performance is to be done in a particular manner, it must be performed in the manner so provided. 31. Accordingly, if the lease deed provides for leasing out a plot of land as described therein then the lease deed has to be executed in that context and not otherwise. 32. Thus in the case at hand the lease has to be in respect of the plot as qualified in the site plan enclosed with the lease. Any deviation from the same has to be in accordance of law and not otherwise i.e. after following the procedure prescribed. 33. It is also settled legal position that where an instrument is required to be registered compulsorily either by virtue of the statute under which it is executed or registered any changes or alteration in the said registered instrument has to be necessarily by a registered instrument. 34. In the absence of any registered instrument changing the location of the plot allotted from a corner plot to any normal plot, is illegal and unsustainable. 35. The change of the status/boundaries of the plot as disclosed in the lease deed would not fall within the ambit of alteration or modification of the terms and conditions of the lease deed and that too without executing a proper instrument. 37. 35. The change of the status/boundaries of the plot as disclosed in the lease deed would not fall within the ambit of alteration or modification of the terms and conditions of the lease deed and that too without executing a proper instrument. 37. Lastly, it has been submitted that as the dispute in the petition has arisen out of a concluded contract, the petitioner is not entitle to maintain the writ petition. 38. There cannot be any doubt whatsoever that GNIDA is a “State” within the meaning of Article 12 of the Constitution of India and as such its action must satisfy the principle of Article 14 of the Constitution and have to be reasonable and fair. Although, the terms and conditions of the contract entered into by GNIDA can be altered or modified as provided but this cannot be done unilaterally unless their exist any provision either in the contract itself or in law. The petitioner was not taken into confidence or was given any opportunity of hearing before changing the nature of the plot allotted to him. It was simply by a letter that he has been informed that the plot allotted to him is no longer a corner plot as on the area of green belt a new plot has been created. 39. This is nothing but novation of a binding contract which could not have been done without making the proposed change known to the petitioner. 40. Accordingly, the alteration so made in the nature of the plot is against the principle of fair play which is heart and soul of Article 14 of the Constitution. 41. The effort made by Sri Jauhari, to get the petition dismissed on technicality that it is not maintainable as it arises out of a concluded contract is bereft of merit as in Delhi Development Authority (2008) 2 SCC 672 Delhi Development Authority and another Vs. Joint Action Committee, Allottee of SFS Flats and others. it has provided that when a contract emanates from a statute or is otherwise governed by the provisions thereof, the superior court can also exercise the power of judicial review more particularly when there is infringement of Article 14 of the Constitution. 42. In Sundstrand Forms (P) Ltd., Manupatra UP/4759/2017 Sundstrand Forms (P) Ltd. Vs. it has provided that when a contract emanates from a statute or is otherwise governed by the provisions thereof, the superior court can also exercise the power of judicial review more particularly when there is infringement of Article 14 of the Constitution. 42. In Sundstrand Forms (P) Ltd., Manupatra UP/4759/2017 Sundstrand Forms (P) Ltd. Vs. State of U.P. and others another Division Bench of this court was confronted with a similar question as to the additional amount payable as location charges in respect of a corner plot or a plot facing 30 mtrs. wide road, the court held that when the premium of the plot was fixed and the scheme provided that for the corner plot 5% of the premium and for the plot facing 30 mtrs. wide road a further 20% premium would be payable the allottee is liable to pay the additional 25% for the location charges and accordingly, directions were issued to its Executive Officer, NOIDA to execute the lease deed of the plot in question and to handover possession thereof. 43. The reliance placed by Sri Jauhari upon State of Bihar, (2002) 1 SCC 216 State of Bihar and others Vs. Jain Plastics and Chemicals Ltd. to object to the maintainability of the petition is not of much help to him for the simple reason that in the aforesaid decision itself it has been held that the existence of alternative remedy does not affect the jurisdiction of the writ court though it may be a ground for not entertaining the petition and it is only where seriously disputed questions or rival claims arise out of a breach of contract which requires investigation and determination on the basis of evidence that the party can be directed to avail the remedy of civil suit. Thus, the jurisdiction of judicial review under Article 226 of the Constitution does not stand ousted completely. 44. Moreover, in the instant case the petitioner is not seeking enforcement of a statutory contract. The contract in the form of lease exists between the parties and it has been acted upon but in doing so the nature of the plot leased out has been changed by carving a new plot in the adjoining green belt. This action is apparently unfair and has been held to be violative of Article 14 of the Constitution. 45. In Lal Bahadur (2018) 15 SCC 407 Lal Bahadur Vs. This action is apparently unfair and has been held to be violative of Article 14 of the Constitution. 45. In Lal Bahadur (2018) 15 SCC 407 Lal Bahadur Vs. State of Uttar Pradesh and others more popularly known as “Janeshwar Misra Park” case it has been held that even the statutory power to modify the plan so as to change green belt into residential area cannot be exercised in violation of public trust doctrine. Therefore, the area earmarked as green belt, park or open space cannot be changed to residential area. This is exactly the position in the instant case. The area of green belt adjoining to the plot allotted to the petitioner has been converted into one another plot for residential purpose after the execution and registration of the lease deed in favour of the petitioner clearly describing the nature of the plot. This action of GNIDA is ex facie hit by the dictum of law laid down in the above decision. 46. Accordingly, brushing aside the objection as to the maintainability of the writ petition as the action of the GNIDA in altering the nature of the plot allotted to the petitioner is unfair and the alteration has not been done in a valid manner as contemplated in law, we issue a writ in the nature of mandamus directing the GNIDA to maintain the nature of the plot allotted to the petitioner i.e. plot No.1 Cassia Fistula Estate, Sector CHI-IV of 1022 sq. mtrs. as a corner plot facing 18 mtrs. wide road with the green belt adjacent to it as has been described in the leased plan forming part of the lease deed. 47. The writ petition is allowed with no order as to costs.