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2022 DIGILAW 1951 (ALL)

Krishna v. State of U. P.

2022-12-09

JAYANT BANERJI, MANOJ KUMAR GUPTA

body2022
JUDGMENT : 1. Heard Shri O.P. Rai, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Ms. Anjali Upadhya for respondent nos. 2 and 3. 2. The petitioner is an allottee of plot no. 19, Block-C, Sector Zeta-2, area 120 sq. mts. vide allotment letter dated 7.1.2011, by Greater Noida Industrial Development Authority (for short ‘the Authority’). The allotment was on lease hold basis for 90 years. The allotment letter specifically mentions that possession was likely to be offered to the allottees within two years from the date of issue of allotment letter. The allottee had to complete formalities for execution of lease deed upon intimation. If the allottee fails to execute legal documents in time, action for cancellation of allotment and forfeiture of deposited money would be taken. According to brochure, 30% of the total premium of the plot (after adjusting registration money already paid) would be payable within 45 days from the date of allotment under Plan D-2 opted by the petitioner and balance 70% was payable in ten equal half-yearly installments calculated from the 46th day from the date of allotment with interest @ 12% per annum. The allottee had been given option to surrender the allotment. In case of surrender after the draw of plots/allotment but within 30 days from the date of allotment, 10% of the registration money would be forfeited and balance amount deposited would be refunded without interest. In case of surrender within 45 days of allotment under payment plan D-2, 50% of the registration money would be forfeited and balance amount would be refunded without any interest. In case the allotment is surrendered after 45 days under payment plan D-2 but before six months from the date of allotment, 10% of the total premium of plot would be forfeited and the balance amount, would be refunded without any interest. In case of surrender after six months from the date of allotment, entire deposited money would be forfeited. In case the allottee fails to deposit the due amount within stipulated time, allotment was liable to be cancelled and in such case, the money deposited till the date of cancellation would be forfeited. 3. The petitioner deposited the registration money and installments (total: Rs. 19,80,071) from time to time. In case the allottee fails to deposit the due amount within stipulated time, allotment was liable to be cancelled and in such case, the money deposited till the date of cancellation would be forfeited. 3. The petitioner deposited the registration money and installments (total: Rs. 19,80,071) from time to time. However, the Authority failed to execute lease deed and deliver possession of the allotted plot to the petitioner despite having realised entire amount from the petitioner in terms of the allotment letter. On 21.8.2019, the respondent-Authority for the first time informed the petitioner that the Authority had taken decision to cancel the Scheme and that refund will be made in terms of Clause U-3 of the brochure and the petitioner will only be paid 4% per annum interest. Even, thereafter, when money was not returned, the petitioner filed the instant petition for issue of a writ of mandamus directing the respondent-Authority to forthwith refund the entire amount with interest @ 12% per annum. 4. Under Clause U-3, it was provided that if due to any ‘force majeure’ or such circumstances beyond the Authority's control, the Authority is unable to make allotment or the possession of the allotted plot, entire registration money or the deposit, depending on the stage of allotment will be refunded along with simple interest at the rate of 4% per annum if delay in refund is more than one year from such date. 5. Learned counsel for the petitioner submitted that Clause U-3 is not applicable to the facts of the instant case inasmuch as the land acquisition proceedings in relation to the allotted land had concluded on 15.4.2011 when the Supreme Court allowed Civil Appeal No. 3261 of 2011 and quashed the acquisition proceedings. The retention of the money deposited by the petitioner thereafter was without any justification. It was not beyond the control of the Authority to refund the amount soon after the judgment was delivered by the Supreme Court. However, it kept the allottees in dark and cancelled the Scheme only on 31.5.2019, and offered to refund the money on 21.8.2019, and then also did not actually return the money, compelling the petitioner to approach this Court. 6. It is not disputed by Ms. However, it kept the allottees in dark and cancelled the Scheme only on 31.5.2019, and offered to refund the money on 21.8.2019, and then also did not actually return the money, compelling the petitioner to approach this Court. 6. It is not disputed by Ms. Anjali Upadhya, learned counsel appearing on behalf of Greater Noida Authority that the plot which was allotted to the petitioner comprised of the land acquired by the Authority under the land acquisition proceedings and the acquisition was subject matter of challenge before this Court in Writ Petition No. 64127 of 2008 (Radhey Shyam vs. State of U.P. and Others). It was dismissed by this Court on 15.12.2008. Thereafter, the matter was taken to Supreme Court in S.L.P. (C) No. 601 of 2009 (Civil Appeal No. 3261 of 2011) which was allowed by the Supreme Court by judgment and order dated 15.4.2011. Thus, on the date when allotment was made, the challenge to the acquisition proceedings was pending before the Supreme Court. 7. The draw of lots was held on 30.12.2010. The brochure did not indicate that the Greater Noida Authority had informed the prospective buyers about pendency of the said litigation before the Supreme Court. As noted above, the Civil Appeal was allowed on 15.4.2011. It is true that delivery of possession of the plot allotted to the petitioner was beyond the control of the Authority as the acquisition was quashed by the Supreme Court. Nonetheless, as noted above, the Authority was aware of the factum of pending litigation but it had not apprised the allottees of the said fact even after the acquisition was quashed. It kept them in dark and instead of returning the money, it kept accepting the installments, such that it accepted money from the petitioner in half yearly installments upto 2.1.2017 with interest @ 12% per annum. It amounts to a clear fraud on part of the respondent-Authority and unjust enrichment. It was only when the petitioner raised the dispute that she was informed about return of money, without interest, taking shelter behind Clause no. U-3, which in our considered opinion, would not apply beyond the date on which the Supreme Court decided the challenge to the acquisition proceedings and quashed the same. It was well within the control of the Noida Authority to have returned the money to the allottees forthwith. U-3, which in our considered opinion, would not apply beyond the date on which the Supreme Court decided the challenge to the acquisition proceedings and quashed the same. It was well within the control of the Noida Authority to have returned the money to the allottees forthwith. In fact retention of money beyond that period amounts to breach of trust and a deliberate act on part of its officials. 8. It is noteworthy that under the scheme if the allottee opts for payment of premium in installments (Plan D-2 opted by the petitioner), he had to pay interest @ 12 per annum. In case of default in payment of installment beyond three months, the interest payable was 15% per annum. If for any reason, the allottee is unable to obtain lease and seeks surrender of the allotment, he is saddled with serious consequences including forfeiture of entire amount deposited up to that date. On the other hand, the Authority is not ready to pay interest even at the rate which it had charged from the allottees despite being grossly negligent in performing its obligations and duties. The Authority claims to have cancelled the scheme in the year 2019 which clearly goes to show that it was sleeping over the matter unconcerned with the plight of the allottees. 9. Apposite to note that after notice of the writ petition was served on the Authority on 7.6.2022, it sent a communication dated 21.6.2022 to the petitioner informing her that it would not be possible for the Authority even to return principal amount to the petitioner. It is stated therein that the version of the petitioner that the plot had not been sold by her to any one is not correct. She had executed an agreement to sell in favour of the intervenor (Gaurav Chandela) on 3.5.2013. His suit is pending in Civil Court (Case No. 952 of 2021). Further, she had executed a Power of Attorney in favour of Sushil Kumar who had filed a writ in this Court. Consequently, until the cases are decided, the money would not be refunded to the petitioner. 10. The agreement to sell is without possession. His suit is pending in Civil Court (Case No. 952 of 2021). Further, she had executed a Power of Attorney in favour of Sushil Kumar who had filed a writ in this Court. Consequently, until the cases are decided, the money would not be refunded to the petitioner. 10. The agreement to sell is without possession. On its basis, the intervenor had instituted Original Suit No. 952 of 2021 against the petitioner and Greater Noida for permanent injunction restraining the defendants from acting in breach of the conditions stipulated in the agreement dated 3.5.2013 and for grant of damages @ Rs.50,000/- per month. The said suit is stated to be pending. No interim injunction or stay is operating in the said suit so as to prevent the Authority from returning the money deposited against the plot. 11. In paragraph 5 of the rejoinder affidavit, the petitioner has alleged that she had cancelled the agreement to sell. Moreover, mere agreement to sell does not confer any title in the property. The suit that was filed was for permanent injunction and damages and not for specific performance. Additionally, as per Clause P-2, no transfer is permissible without permission of the Authority and that too, when transfer was made after execution of the lease deed. In the instant case, no lease deed was ever executed, so even otherwise, the Authority could not have taken notice of any such transaction. Therefore, the stand taken by the Authority that it would not return the money to the petitioner until the suit filed by the intervenor remains pending is also not sustainable in law. It should have left the inter se dispute between them to be decided in the suit. 12. Having regard to the facts and circumstances of the case, we are of the considered opinion that the petitioner who had been deliberately deprived of the returns on her investment solely attributable to the Authority is entitled to interest at the rate of 4% per annum from the date of deposit till the date acquisition was set aside by the Supreme Court that is 15.4.2011 and @ 12% per annum for the period beyond it until the date of actual payment. 13. We also note that not only the petitioner has been put to harassment by the respondent-Authority, but also has had to incur litigation expenses for which too she ought to be compensated. 14. 13. We also note that not only the petitioner has been put to harassment by the respondent-Authority, but also has had to incur litigation expenses for which too she ought to be compensated. 14. In the result, the petition stands allowed with cost of Rs. 50,000/- to be paid by Greater Noida Authority to the petitioner within two weeks. 15. Before parting, we clarify that we should not be understood to have expressed opinion on any issue involved in the suit filed by the intervenor. All pleas and contentions therein are left open for being decided without being influenced by any observations made herein.