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2021 DIGILAW 408 (ALL)

Rajhans Infratech Pvt. Ltd. v. State of U. P.

2021-03-17

PANKAJ NAQVI, PIYUSH AGRAWAL

body2021
JUDGMENT : Heard Sri Uma Nath Pandey, learned counsel for the petitioner, Sri Ramendra Pratap Singh, learned counsel for respondent nos. 2 & 3 and the learned standing counsel. 1. A consortium of 4 real estate developers was allotted by Greater Noida Industrial Development Authority (GNIDA), plot no. GH-06 Sector -1, Greater Noida, area 738000 sq. mtrs. For a group housing on 27.4.2010. The consortium was permitted under the order of authority dated 24.3.2011 for sub-division of the said plot. Plot no. GH-06-B (area 20000 sq. mtr) was allotted to the petitioner, one of the 4 members of the consortium, after sub-division. The order of sub-division indicated that petitioner was granted 24 mtr. wide approach road to access his plot. A lease deed dated 27.5.2011 in respect of 17,728.40 sq. mtrs. and a supplementary lease dated 1.7.2013 for area 2306.4 sq. mtrs came to be executed for 90 years in favour of the petitioner. It is alleged that petitioner could access his plot only through Khasra Nos. 663 & 654 which were under litigation as there was an order of status quo, as a result of which actual physical possession in respect of above khasra could not be delivered till 14.5.2015 when the same was removed with police aid. 2. The authority has framed a policy dated 1.1.2016 for granting benefit of "Zero Period" which provides that in the event an allottee is unable to take actual physical possession of the demised area on account of encumbrance or encroachment or a pending dispute, the authority is entitled to waive lease rent, interest and penal interest thereon for a definite period. In the present case, "Zero Period", was alleged from 27.4.2010 to 15.5.2015. The petitioner staked a claim for Zero Period on 18.4.2016 which came to be rejected on 22.3.2018 which the petitioner claims was never communicated to him and claims to have learnt about it on 2.7.2018, when it was challenged in Writ C No. 23624/2019. The said writ petition came to be disposed of on 6.8.2019 directing the petitioner to approach the State Government. The revision preferred by the petitioner came to be disposed of by the State Government on 17.3.2020 for fresh consideration in the light of resolution of the 104th Board Meeting. Pursuant thereto, the authority rejected the claim on 9.7.2020, impugned herein. 3. The revision preferred by the petitioner came to be disposed of by the State Government on 17.3.2020 for fresh consideration in the light of resolution of the 104th Board Meeting. Pursuant thereto, the authority rejected the claim on 9.7.2020, impugned herein. 3. Learned counsel for the petitioner challenges the order dated 9.7.2020 on the following grounds:- (i) Plot of the petitioner was inaccessible from 27.4.2010 to 15.5.2015, in the absence of any approach road, preventing the petitioner from raising any constructions. (ii) Petitioner was entitled to parity from others who had been granted benefit of zero period. (iii) Case of petitioner is squarely covered under the terms and conditions as contained in the policy dated 1.1.2016. 4. Learned counsel for the authority opposed the submissions on the premise that the sub-division of the plot was carried out by the petitioner and other members of consortium knowing fully well the location of its plot and the approach road after sub-division. No case for parity as the ground situation is absolutely different qua the petitioner. Once the case of the petitioner has been considered in the light of parameters provided under the G.O. dated 1.1.2016, this Court under Article 226 is prohibited to act as a court of appeal. 5. The GNIDA is an authority constituted under Section 3 of the U.P. Industrial Area Development Act, 1976. The object of the authority shall be to secure the planned development of the industrial development areas. 6. From the perusal of the policy dated 1.1.2016 (Page-129-130 of the petition), it appears that following conditions have been laid down for the grant of benefit of Zero Period:- (i) If for some reason, the authority is unable to deliver possession to the allottee or developer. (ii) The authority is unable to deliver possession to the allottee / developer as the same could disturb the peace and tranquility of the area or there is an encroachment as a result of which development is unable to proceed. (ii) Execution of allotment / lease / delivery of possession is unable to take place in view of pending interim order of a court. (iv) Lease deed is unable to be executed on account of G.O or a decision of the Board. (ii) Execution of allotment / lease / delivery of possession is unable to take place in view of pending interim order of a court. (iv) Lease deed is unable to be executed on account of G.O or a decision of the Board. (v) If the authority has delivered possession to the allottee and the lease deed executed but the allottee in unable to access the plot as a result of which development is impossible to commence, the allottee is entitled to the benefit of zero period upto the date on which alternate access is provided. 7. The petitioner, one of the four members of the consortium, was allotted plot no. GH-06-B after the authority had consented for sub-division under the order dated 24.3.2011. The authority is a signatory to the sub-division. Although 24 mtrs. wide approach road was assigned to the petitioner under the order of sub-division, no approach road whatsoever was actually provided to the petitioner till 15.5.2015 which is an admitted fact. It could not be disputed that in the absence of any approach road, construction at the assigned plot was impossible. The authority being a signatory to the order of sub-division, cannot feign ignorance on the ground that it was an internal matter of the consortium. The authority being an instrumentality of a State, was obliged to act reasonably and fairly by providing actual physical possession of the approach road over khasra no. 663 & 654 to the petitioner which was under unauthorized possession coupled with the fact that not only the said fact was admitted to the petitioner but also it delivered the possession of this area to the petitioner after removing encroachment with the aid of police only on 15.5.2013. 8. We, in the light of above discussion, are of the considered view that the petitioner was liable to be granted benefit of zero period from 27.4.2010 to 15.5.2015 in view of Clause-5 of the policy dated 1.1.2016 as inserted by the resolution of Board Meeting dated 14.3.2016. Once the case of petitioner is found to be successful on merits of the terms and conditions of the policy and 104th Board Resolution, we do not feel the necessity to enter into the claim of parity. 9. The impugned order suffers from absolute non-application of mind as it was not only admitted case that there was encroachment over khasra nos. 9. The impugned order suffers from absolute non-application of mind as it was not only admitted case that there was encroachment over khasra nos. 663 & 654 on which 24 mts. wide approach road was granted to the petitioner but on account of encroachment, possession of the same could be delivered with the police aid only on 15.5.2015 coupled with the fact that its case was also not considered as per the 104th Board Resolution. We are also of the view that the authority cannot take advantage of its own wrong i.e. by not providing the complete physical possession of the allotted plot to the petitioner and at the same time, levying additional changes for not completing the constructions within a stipulated period. This approach would not only be counter productive rather deterimental to the industrial development of the area. We, thus, have no option but to set aside the order dated 9.7.2020. 10. The writ petition is allowed. The order dated 9.7.2020 is set aside/quashed. The competent authority is directed to consider the case of the petitioner for grant of benefit of zero period w.e.f. 27.4.2010 to 15.5.2015, as expeditiously as possible, preferably within 6 weeks, from the date of receipt of this order, in the light of observation made above and in accordance with law, under intimation to the petitioner.