M/S Somap Hotels Pvt. Ltd. vs New Okhla Industrial Development ...
2022 Latest Caselaw 21946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 17.11.2022
 
Judgment Delivered on : 20.12.2022
 

 

 
Court No.45
 

 
Case :- WRIT - C No. - 31838 of 2021
 
Petitioner :- M/S Somap Hotels Pvt. Ltd.
 
Respondent :- New Okhla Industrial Development Authority And 5 Others
 
Counsel for Petitioner :- Raghav Dev Garg,Sanjay Chaturvedi,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Tanmay Sadh
 
With
 

 
Case :- WRIT - C No. - 31841 of 2021
 
Petitioner :- M/S East Coast Star Hotel Pvt. Ltd.
 
Respondent :- New Okhla Industrial Development Authority And 6 Others
 
Counsel for Petitioner :- Sanjay Chaturvedi,Raghav Dev Garg
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Tanmay Sadh
 
With
 

 
Case :- WRIT - C No. - 31839 of 2021
 
Petitioner :- M/S Minor Hotels Pvt. Ltd.
 
Respondent :- New Okhla Industrial Development Authority And 5 Others
 
Counsel for Petitioner :- Sanjay Chaturvedi,Raghav Dev Garg
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
With
 

 
Case :- WRIT - C No. - 31837 of 2021
 
Petitioner :- M/S Saamag Royal Hospitality Pvt Ltd
 
Respondent :- New Okhla Industrial Development Authority And 5 Others
 
Counsel for Petitioner :- Sanjay Chaturvedi,Raghav Dev Garg
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
With
 

 
Case :- WRIT - C No. - 27303 of 2021
 
Petitioner :- M/S Clarkston Hotels Pvt. Ltd.
 
Respondent :- New Okhla Industrial Development Authority And 2 Others
 
Counsel for Petitioner :- Syed Hasan Mujtaba Isfahani,Syed Ali Murtaza
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 
With
 
Case :- WRIT - C No. - 27190 of 2021
 
Petitioner :- M/S Metraveno Hotels Pvt. Ltd.
 
Respondent :- New Okhla Industrial Development Authority And 2 Others
 
Counsel for Petitioner :- Syed Hasan Mujtaba Isfahani,Syed Ali Murtaza
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Ashutosh Srivastava,J.

1. Heard Sri Navniti Prasad Singh, learned Senior Advocate assisted by Sri Abhishek Singh, Sri Raghav Dev Garg, Sri Sanjay Chaturvedi, Sri Sayyed Ali Murtaza and Sri Sarthak Gupta, learned counsels for the petitioners and Sri Manish Goyal, learned Additional Advocate General assisted by Sri Kaushalendra Nath Singh, Sri Tanmay Sadh and Sri Love Kumar Gupta, learned counsels for the respondents.

2. The bunch of writ petitions raise common questions of law and fact and as such are being considered and decided by a common order. The facts of Writ (C) No.31838 of 2021 is being treated to be the leading petition for deciding the controversy involved.

3. The facts, leading up to filing of the bunch of writ petitions lie in a narrow compass.

4. The State Government, with an intention to promote Tourism Industry evolved a policy to allot earmarked plots for setting up Hotels. In furtherance of the policy of the State Government, NOIDA published the Hotel Site Allotment Scheme by issuing advertisements in newspapers, issuing brochures, invited applications for allotment of plots for 5 Star, 4 Star and 3 Star Hotels on 90 years lease basis at industrial rate of Rs.7400/- per sq. meter. The writ petitioner, M/s Somap Hotels Pvt. Ltd. is stated to have applied for allotment of a plot for constructing a 5 Star Hotel at NOIDA. The petitioner is stated to have been allotted a plot measuring 24,000/- sq. meters at Plot No.08, Block No. H, Sector 98 and a lease deed was got executed on 20.04.2007. The petitioner is stated to have deposited a sum of Rs.19,53,60,000/- towards total premium together with yearly lease rent of Rs.48,84,000/- where-after possession of the plot in question was handed over on 24.04.2007. The petitioner thereafter is stated to have presented the lease deed for registration before the Deputy Registrar-III along with Stamp Duty of Rs.1,99,26,800/- payable as per the terms of the lease deed. The Stamp Authorities i.e. the Assistant Commissioner (Stamps) was of the view that the stamp duty payable on the plot allotted to the petitioner ought to have been on commercial rates and not industrial rates and by order dated 19.09.2007 imposed deficiency of stamp duty and penalty upon the petitioners to the extent of Rs.12,94,73,200/-. The petitioner claimed remission of stamp duty payable under the Government Order dated 12.11.2002 issued under Section 9(1)(a) of the Indian Stamp Act, 1989, which granted remission of stamp duty, if lease was executed between the Development Authority and other person. The Government Order dated 12.11.2002 was made inapplicable for a brief period between 01.04.2007 and 28.06.2007 when the petitioner presented the lease for its registration. However, vide notification dated 29.06.2007 the remission of stamp duty was made effective from 29.06.2007 and not retrospectively from 01.04.2007. The issue is sub-judice before this Court in Writ Petition No.58961 of 2007 in which an interim order keeping the proceedings in abeyance is operating. The net result is that the lease deed dated 20.04.2007 stands impounded by the Stamp Authorities.

5. Meanwhile, a challenge to the allotment of the Hotel Sites by NOIDA arose in a Public Interest Litigation being PIL No.24917 of 2007 in which by an order dated 22.05.2007 certain directions were issued, including the direction to the State Government to review all the allotments of Hotel Sites on industrial rates. The State Government vide order dated 01.08.2007 being of the view that the commercial plots could not be allotted at industrial rates, recommended for cancellation of the allotment of the plot in favour of the petitioner and thereafter, NOIDA proceeded to cancel the allotment by order dated 03.08.2007. The said order was put to challenge in Civil Misc. Writ Petition No.38635 of 2007 and by order dated 13.05.2008, the matter was remanded back to the State Government for fresh consideration. The remand order dated 13.05.2008 was put to challenge in a SLP which was converted into Civil Appeal No.4561 of 2008 and other connected Appeals. The Apex Court vide order dated 05.07.2001 ruled that the rates were wrongly fixed and in fact, land allotted was required to be allotted at commercial rates of the Rs.70,000/- per sq. meter. The Apex Court further gave option to the petitioner who was the appellant before it to continue its lease by paying the commercial rate of Rs.70,000/- per sq. meter. and be entitled to some further benefits or surrender the land to the Development Authority.

6. The petitioner initially opted for paying the commercial rate and proceeded to deposit 25% amount as first installment. As per terms settled on deposit of 25% of the commercial rate, NOIDA was required to execute supplementary deed in favour of the petitioner. However, when NOIDA did not execute the supplementary deed the petitioner shifted to the second option and surrendered the land. Subsequent to the surrender of the land by the petitioner, NOIDA has issued the impugned demand, proceeding on the assumption that since the petitioner has not surrendered the lease deed as directed by the Apex Court in its order dated 09.03.2021 passed in Contempt Petition (Civil) No.413 of 2019 filed in Civil Appeal No.4564 of 2008, it would be deemed that the petitioner is going with the first option and as such is liable to clear the dues against the lease deed.

7. Learned counsel for the petitioner contends that since the petitioner has already surrendered the plot allotted to it to NOIDA, the Authority is not at all justified to raise any demand subsequent to the surrender particularly, in view of the observations of the Apex Court made in its order dated 09.03.2021 to the effect that upon handing over of the possession the title of the petitioner in respect of the concerned plot shall stand extinguished and the lease deed also shall stand cancelled. So far as handing over of the original lease deed to NOIDA is concerned, the same is incapable of performance as the deed stands impounded by the Stamp Authorities/State. It is further contended that NOIDA on the surrender of the possession of the land, is liable to refund the amount deposited by the petitioner against the lease deed as observed by the Apex Court in its order.

8. In the aforesaid backdrop, the writ petitioner has approached this Court claiming the following reliefs:-

"A. An appropriate writ order or direction in the nature of certiorari quashing the impugned notice dated 02.09.2021 and the communication dated 15.09.2021 issued by the respondent no.2.

B. An appropriate writ order or direction in the nature of mandamus directing the Respondent No.1 and 2 to give effect to the second option as mandated in the judgment and order dated 09.03.2021 passed by the Hon'ble Supreme Court of India in Contempt Petition (C) No.413 of 2019;

C. An appropriate writ order or direction in the nature of mandamus directing the Respondent No.3 to 6 to deliver up the original lease deeds dated 20.04.2007 to the Respondent No.1 and 2 or in the alternative to treat the lease deed dated 20.04.2007 as null and void in view of the decision of the Supreme Court of India dated 09.03.2021;

D. An appropriate writ order or direction in the nature of mandamus directing the respondent No.3 to 6 to make the necessary endorsement in terms of section 31(2) of the Specific Relief Act, 1963 and return the original lease deed either directly to petitioner or to the respondent No.1 and 2.

E. Any other appropriate, writ, order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case;

F. An award the cost of the Writ Petition to the Petitioner Company."

9. The writ petition is opposed by the NOIDA arrayed as Respondent Nos.1 & 2 by filing the counter affidavit sworn by Sri Om Prakash son of Ram Swarup posted as Office Superintendent (Commercial) NOIDA. In the counter affidavit it is submitted that the Apex Court under its order dated 09.03.2021 modified the second option. Under the modified order the petitioner was required to exercise the second option according to the modalities set out by the Apex Court in its order dated 09.03.2021. Since the petitioner did not exercise the option in the manner indicated in the order it was deemed that the petitioner is not desirous of exercising the second option and the petitioner was treated to have opted for the first option as indicated in the order dated 05.09.2019. The petitioner though handed over the possession of the plot in question but did not hand over the original lease deed and as such the Authority could not auction the plot as directed by the Apex Court. The petitioner was required to comply with the conditions completely and not partially. It is also stated that the petitioner should have got the impounded lease deed released from the Registrar Stamps and handed over the same to the Authority as it is not possible for NOIDA to auction the said plot until and unless the original lease deed is in the hands of the Authority and is physically cancelled. It is also averred in the counter affidavit that out of the total 7 plots which were allotted for Hotel Sites, one of the allottee namely M/s Hampshire Hotels and Resorts handed over the original lease deed to NOIDA, where-after the compliance of the directions of the Apex Court stood completed. In the present case the petitioner has no intention to surrender the original lease deed with NOIDA.

10. In the rejoinder affidavit, controverting the stand taken by the NOIDA in their counter affidavit, it is submitted that the handing over of the original lease deed was not an integral part of the order of the Apex Court dated 09.03.2021 for exercising the second option rather it was the handing over of possession. Once the second option was exercised and the petitioner handed over the possession of the plot, the title of the petitioner in respect of the concerned plot stood extinguished. NOIDA took possession of the plot in question without objection or insisting on handing over of the original lease deed. Upon the handing over of possession, the second option as contemplated in the order dated 09.03.2021 of the Apex Court stood exercised and NOIDA now cannot turn around and say that the petitioner is not eligible to avail the second option. NOIDA was fully aware that the original lease deed was not with the petitioner and stood impounded by the Stamp Authorities.

11. Having heard the learned counsels for the parties and having perused the record, we find that the entire controversy between the parties rests upon the question as to whether the petitioner in the given set of facts and circumstances that stand attracted to the case can be said to have exercised the second option and as to whether the respondent NOIDA is justified in treating the petitioner to have failed in following the modalities set out by the Apex Court in its order dated 09.03.201 for exercise of the second option and is thus justified to treat the petitioner to have opted for the first option.

12. Before we dwell into the above aspect, we deem it appropriate to deal with the objection of Sri Manish Goyal, learned Additional Advocate General for NOIDA as to the maintainability of the instant writ petition. The specific objection of Sri Goyal is that the present writ petition is not maintainable so far as Relief "C" is concerned as for the same relief earlier petitioner i.e. Writ Petition No.9584 of 2008 is pending consideration. The objection is founded on the principle of res-judicata and Chapter 22 Rule (7) of the Rules of the Court. The Chapter 22 Rule 7 of the Rules of the Court provides that "No second application on same facts shall be maintainable on the rejection of the first application." In the opinion of the Court, the provisions of Chapter 22 Rule 7 of the Rules of the Court are not attracted to the case at hand in as much as the provisions applies where the first application has been rejected. Admittedly, the application moved in Writ Petition No.9584 of 2008 (M/s Metraveno Hotels Pvt. Ltd. Vs. State of U.P & others) in terms of the Relief 'C' sought herein this writ petition (i.e. mandamus directing the Respondent Nos.3 to 6 to deliver up the original lease deed dated 20.04.2007 to the Respondent Nos.1 & 2 or in the alternative to treat the lease deed dated 20.04.2007 as null and void in view of the decision of the Supreme Court of India dated 09.03.2021) has not been rejected as is evident from the copy of the order dated 19.05.2021 passed in the said writ petition. The provisions of Chapter 22 Rule 7 of the Rules of the Court cannot be said to be attracted. As regards the plea that the Relief 'C' is hit by the principle of res-judicata, reliance has been placed upon a decision of the Apex Court in the case of State of U.P. Vs. Nawab Hussain reported in 1997(2) SCC 806 by the learned counsel for the respondent NOIDA, particularly, to Para 4 therein which is being quoted here under:-

"But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell L.J., has answered it as follows in Greenhalgh v. -Mallard, [1947] 2 All. E.R. 255.

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could; have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in re- spect of them."

This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata ,by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has .sometimes been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle."

13. We have given out thoughtful consideration to the submission of Sri Manish Goyal, learned Additional Advocate General, representing the respondent NOIDA. We find that the principle of res-judicata is not attracted to the case at hand in as much as the cause of action in the earlier writ petition and the present writ petition are entirely different, whereas the earlier writ petition being Civil Misc. Writ Petition No.58961 of 2007 relates to payment of Stamp Duty on the lease deed and whether the petitioner is entitled for remission on stamp duty in terms of the Government Order dated 12.11.2002 and subsequent notification dated 29.06.2007, the present writ petition relates to demand raised by NOIDA treating the lease to be subsisting. The Court also finds that the objection as to the maintainability of the writ petition has not been raised in the counter affidavit but is being agitated at the time of final hearing of the writ petition. In such view of the matter, the objection of the respondent NOIDA as to the maintainability of the writ petition is overruled and the writ petition is held maintainable.

14. Now coming to the merits of the controversy, the respective arguments of the parties is required to be tested in the light of the direction of the Apex Court. Admittedly, the Apex Court vide its order dated 05.07.2011 had disposed of the Civil Appeal No.4561 of 2008 (ITC Ltd. Vs. State of U.P. & others) along with connected Civil Appeals observing as under:-

"70. In view of the above we dispose of these appeals as follows :

(i) The order of the High Court setting aside the revisional order dated 1.8.2007 of the State Government and the consequential orders of cancellation of allotment of plots dated 3.8.2007 by NOIDA, is affirmed.

(ii) The revisional orders dated 8.9.2008 passed by the State Government cancelling the allotments of plots to appellants, are set aside.

(iii) The appellants are given the option to continue their respective leases by paying the premium (allotment rate) at Rs.70000/- per sq.m. (with corresponding increase in yearly rent/one time lease rent), without any location benefit charges. The appellants shall exercise such option by 30.9.2011. Such of those appellants exercising the option will be entitled to the following benefits which has been extended in regard to the allottees under 2008 allotment scheme of NOIDA :

(a) 40% of FAR can be used by the allottee as commercial space (as stipulated in the 2008 scheme).

(b) Permission to pay at its option, the balance to make up 25% of the premium (after adjusting all amounts paid at Rs.7400/- per sq.m. plus location benefit charges) on or before 30.9.2011 and the balance 75% of premium in sixteen half yearly instalments commencing from 1.1.2012 with interest at 11% per annum (as offered to the applicants in 2008 scheme).

(c) The lessees will be entitled to transfer rights in accordance with the 2008 scheme.

On exercise of such option, the lease shall continue and the period between 1.8.2007 to 31.7.2011 shall be excluded for calculating the lease period of 90 years. Consequently the period of lease mentioned in the lease deed shall stand extended by a corresponding four years period, so that the lessee has the benefit of the lease for 90 years. An amendment to the lease deed shall be executed between NOIDA and the lessee incorporating the aforesaid changes.

(iv) If any appellant is unwilling to continue the lease by paying the higher premium as aforesaid, or fails to exercise the option as per para (iii) above by 30.9.2011, the allotment and consequential lease in its favour shall stand cancelled. In that event, NOIDA shall return all amounts paid by such appellant to NOIDA towards the allotment and the lease, and also reimburse the stamp duty and registration charges incurred by it, with interest at 18% per annum from the date of payment/incurring of such amounts to date of reimbursement by NOIDA. If NOIDA returns the amount to the appellant within 31.12.2011, the rate of interest payable by NOIDA shall be only 11% per annum instead of 18% per annum.

(vi)    Parties to bear their respective costs."
 
15.	Admittedly, the second option given in the said order was modified by the Apex Court in Contempt Petition (Civil) No.413 of 2019 filed in Civil Appeal No.4564 of 2008 and connected matters vide its order dated 09.03.2021. The relevant paras of the order dated 09.03.2021 is being reproduced here under:-
 
"24. The Second Option given in the Order dated 05.09.2019 shall stand modified to the aforesaid extent. 
 

25. In case the Petitioners are agreeable to these conditions, the Petitioners may exercise such option by filing appropriate affidavits with NOIDA along with an appropriate Resolution of the Board of the concerned Company. Upon such affidavit being filed within two weeks from the date of this Order, NOIDA shall calculate the amounts deposited by each of the Petitioners towards premium and so also the amounts payable to each of the Petitioners towards component of lease rent and interest from the date of each of those deposits @ 7% per annum upto 30.04.2021. A communication giving all the details, including the proposed user as well as the minimum price at which the plots would be put up for sale, shall be addressed to each of the Petitioners exercising such option on or before 17.05.2021. The possession shall then be delivered by each of the Petitioners of the concerned plots back to NOIDA by 31.05.2021. Upon such handing over of the possession, the title of the Petitioners in respect of the concerned plots shall stand extinguished. The Lease Deeds in their favour, shall be delivered up by each of the Petitioners, which shall also stand cancelled.

26. NOIDA shall, thereafter, put up the plots in question for auction or invite E-bids within three months, in the same fashion as was done in connection with the property referred to in the communication dated 21.10.2019. It will be entirely up to NOIDA to put up the plots for sale collectively or individually or to sell them for any purpose which in the opinion of NOIDA would subserve public interest and devise the modalities for sale. From and out of the sale proceeds received in such sale, the amounts indicated above shall be paid to each of the Petitioners exercising such Second Option in accordance with the principles as stated above, within three months of the sale.

27. In case no option is exercised by any of the Petitioners in the manner indicated hereinabove, or in case no possession is handed over within the time stipulated even after exercising such option, it shall be deemed that each of such Petitioners is not desirous of exercising the Second Option and said Petitioners shall be treated to have opted for the First Option as indicated in the Order dated 05.09.2019. In such cases, NOIDA shall issue appropriate communication calling upon them to pay up all the dues in terms of the First Option within reasonable time. The supplementary Lease Deed shall be executed only after all the dues as indicated in the First Option are cleared. If the amounts are not cleared within the time stipulated, the concerned plots shall stand resumed in favour of NOIDA and those Petitioners shall be dispossessed of the plots in their occupation in a manner known to law.

28. It is made clear that the handing over of possession in exercise of the revised Second Option, as granted earlier or taking over of possession in terms of the preceding paragraph, shall be on "as is where is" basis. The concerned Petitioners shall not be entitled to any value addition, be it in the form of construction of any structures or erection of any compound wall. The possession shall be handed over and/or received along with such value additions, which shall vest in NOIDA. Similarly, every individual on the plot in question must be made to vacate and the handing over or receiving of possession must be clear and peaceful.

29. Though the scope of the Contempt Petitions was restricted to see whether functionaries of NOIDA were guilty of disobedience of the directions issued by this Court, the matter was considered from the standpoint of enabling both sides to settle their disputes and get over the stalemate which has been obtaining for the last 10 years. The endeavour was to see that the interest of both sides is sufficiently taken care of and more than anything else, the public interest must stand subserved. It is with this solution in mind, that the directions as stated above have been issued by this Court.

30. Subject to what is stated hereinabove, all the contentions raised in these Contempt Petitions are rejected and Contempt Petitions are closed.

31. Ordered accordingly"

16. A perusal of the order of the Apex Court dated 09.03.2021 shows that the apex Court has laid down the modalities for settling the interse dispute taking into consideration the interest of both sides i.e. the petitioner and the NOIDA and also that the public interest stands sub-served. Under the terms laid down, the petitioner was required to execute an affidavit exercising its option and submitting the same with NOIDA where-after the NOIDA was required to calculate the amount deposited by the petitioner towards the premium and also the amount payable to the petitioner towards component of lease rent and interest from the date of the deposit @ 7% per annum upto 30.04.2021. NOIDA was also required to communicate the details of proposed user of the plot as also the minimum sale price of the plots on or before 17.05.2021. The petitioner was required to handover possession of the plot in question to NOIDA by 31.05.2021. Consequent to handing over of the possession of the plot to NOIDA, the title of the petitioner in respect of the concerned plot would stand extinguished. The lease deed in favour of the petitioner would be delivered up by the petitioner to NOIDA which would stand cancelled. NOIDA would put up the plot for auction or invite e-bids in the manner referred to in the communication dated 21.10.2019. It was left open to NOIDA to devise the modalities for sale of the plot. Out of the sale proceeds received the amount determined was to be paid to the petitioner who had exercised the second option. The Apex Court observed that in case no option was exercised by the petitioner in the manner indicated in the order, or in case possession was not handed over within the time stipulated i.e. 31.05.2021 even after exercising the second option, it would be deemed that the petitioner was not desirous of exercising the second option and in such circumstances the petitioner was to be treated to have opted for the first option as indicated in the order dated 05.09.2019. In such case NOIDA would issue appropriate communication to the petitioner to pay up all the dues in terms of the first option. If amount were not cleared within time stipulated, the concerned plot would stand resumed in favour of NOIDA and petitioner would be dispossessed of the plot allotted to it.

17. The records reveal that the petitioner in compliance of the direction of the Apex Court as contained in its order dated 09.03.2021 executed the affidavit on 18.03.2021 (Annexure No.9 to the writ petition). In response to the affidavit executed by the petitioner NOIDA acknowledging the second option exercised by the petitioner informed that the total amount received by NOIDA from the petitioner was Rs.50,16,31,891/- and total amount to be refunded to the petitioner as per the order of the Apex Court was computed to be Rs.89,76,75,466/- The aforesaid communication has been filed on record as Annexure No.11 to the writ petition. We also find that the petitioner wrote to the Stamp Authorities vide communication dated 17.05.2021 (Annexure No.12 to the writ petition) intimating it of the exercise of second option as per the order of the Apex Court and requesting the said authority to hand over the lease deed dated 20.04.2007 either to it or directly to NOIDA. A copy of the said communication was also marked to NOIDA. Thereafter, admittedly the petitioner handed over the physical possession of the Plot No. H-08 annexing the allotment letter and possession letter in original and copy of the lease deed and letter written to the Stamp Authorities on 28.05.2021 much before 31.05.2021 i.e. the deadline fixed by the Apex Court. The document recording the factum of handing over of possession of the plot in question has been brought on record as Annexure No.16 to the writ petition. Thus, we find that the petitioner has substantially complied with the requirements for exercising the second option. We find force in the submissions of the learned Senior Counsel for the petitioner that the exercise of the second option rested upon the handing over of the physical possession of the plot allotted and not the delivery of the lease deed. The Apex Court in Para No.25 of its judgment dated 09.03.2021 had clearly observed that upon the delivery of possession the title of the petitioner shall stand extinguished. In Para No.27 of the judgment the consequence of failure to exercise the option and consequence of not handing the possession was provided i.e. in the event of failure to perform any of the two acts the concerned party was to be treated to have opted for first option. The Apex Court did not provide any consequence for not delivering up the lease deed. The inability to deliver up the lease deed was inconsequential as the lease deed itself stood cancelled under the order of the Apex Court. The relevant portion of Para Nos.25 & 27 of the judgment of the Apex Court dated 09.03.2021 is being quoted here under:-

"25. In case the Petitioners are agreeable to these conditions, the Petitioners may exercise such option by filing appropriate affidavits with NOIDA along with an appropriate Resolution of the Board of the concerned Company. Upon such affidavit being filed within two weeks from the date of this Order, NOIDA shall calculate the amounts deposited by each of the Petitioners towards premium and so also the amounts payable to each of the Petitioners towards component of lease rent and interest from the date of each of those deposits @ 7% per annum upto 30.04.2021. A communication giving all the details, including the proposed user as well as the minimum price at which the plots would be put up for sale, shall be addressed to each of the Petitioners exercising such option on or before 17.05.2021. The possession shall then be delivered by each of the Petitioners of the concerned plots back to NOIDA by 31.05.2021. Upon such handing over of the possession, the title of the Petitioners in respect of the concerned plots shall stand extinguished. The Lease Deeds in their favour, shall be delivered up by each of the Petitioners, which shall also stand cancelled.

27. In case no option is exercised by any of the Petitioners in the manner indicated hereinabove, or in case no possession is handed over within the time stipulated even after exercising such option, it shall be deemed that each of such Petitioners is not desirous of exercising the Second Option and said Petitioners shall be treated to have opted for the First Option as indicated in the Order dated 05.09.2019. In such cases, NOIDA shall issue appropriate communication calling upon them to pay up all the dues in terms of the First Option within reasonable time. The supplementary Lease Deed shall be executed only after all the dues as indicated in the First Option are cleared. If the amounts are not cleared within the time stipulated, the concerned plots shall stand resumed in favour of NOIDA and those Petitioners shall be dispossessed of the plots in their occupation in a manner known to law."

18. Thus, we are of the considered view that once the petitioner had exercised the second option, handed over the possession of the plot to NOIDA and NOIDA having accepted the possession, the title of the petitioner in respect of the concerned plot stood extinguished in terms of the order of the Apex Court dated 09.03.2021. Once the title of the petitioner stood extinguished no further action was required to be done. The lease deed stood cancelled under the orders of the Apex Court. It became a useless document and of no consequence. We are not impressed by the submissions on behalf of NOIDA that it cannot proceed to auction the plot in the absence of the lease deed not having been delivered up by the petitioner for cancellation.

19. We have noticed above that the Apex Court in its order dated 09.03.2021 had set out the modalities for settling the dispute and get over the stalemate existing for last so many years (over a decade). The Apex Court while laying down the modalities was conscious of the interest of both the sides and endeavoured to safeguard the interest of both sides and also that the public interest is sub-served. Under Article 144 of the Constitution of India it is mandated that all civil and judicial authorities are required to act in aid of the Supreme Court. Once the Apex Court has ruled that upon the handing over of possession of the plot in question the rights in the plot shall stand extinguished and the lease deed shall also stand cancelled, the consequences have to follow.

20. In view of the above, the impugned action of the NOIDA to issue the demand notice dated 02.09.2021 and communication dated 15.09.2021 cannot be sustained and are, accordingly, quashed. The Respondent Nos.1 & 2 are mandated to give effect to the second option exercised by the petitioner in terms of the order of the Apex Court dated 09.03.2021 passed in Contempt Petition (Civil) No.413 of 2019 arising out of SLP, which was converted into Civil Appeal No.4561 of 2008 and other connected Appeals. Consequently, the Respondent Nos.3 to 6 are further directed to deliver the original lease deeds to Respondent Nos.1 & 2.

21. The writ petitions are allowed to that extent. No order as to costs.

 
Order Date :- 20.12.2022
 
pks
 

 
(Ashutosh Srivastava,J.)            (Pritinker Diwaker,J.)