Allahabad High Court
Sheela Rustagi And Another vs State Of U.P. An 3 Others on 12 July, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
A. F. R.
Judgment reserved on: 05.05.2022
Judgment delivered on: 12.07.2022
Court No. - 29
Case :- WRIT - C No. - 2255 of 2021
Petitioner :- Sheela Rustagi and another
Respondent :- State of U.P. and 3 others
Counsel for Petitioner :- Desh Ratan Chaudhary
Counsel for Respondent :- C.S.C., Anjali Upadhya, Ramendra Pratap Singh
With
Case :- WRIT - C No. - 760 of 2021
Petitioner :- Sameddin and 37 others
Respondent :- State of U.P. and 3 others
Counsel for Petitioner :- Desh Ratan Chaudhary
Counsel for Respondent :- C.S.C.,Aditya Bhushan Singhal,Anjali Upadhya, Ramendra Pratap Singh
With
Case :- WRIT - C No. - 18846 of 2020
Petitioner :- Gaurav Gulati and another
Respondent :- State of U.P. and 3 others
Counsel for Petitioner :- Desh Ratan Chaudhary
Counsel for Respondent :- C.S.C., Anjali Upadhya, Ramendra Pratap Singh
Hon'ble Pritinker Diwaker, J.
Hon'ble Ashutosh Srivastava,J.
1. All the above referred writ petitions involve identical questions of law and facts. The Writ Petition (C) No. 2255 of 2021 is being treated as the leading writ petition and the facts pertaining to the same is being considered for deciding the controversy involved.
2. Heard Shri Desh Ratan Chaudhary, learned counsel for the petitioners, Shri Ramendra Pratap Singh, learned counsel representing the respondent Nos. 2, 3 and 4 and the learned Standing Counsel representing the respondent No. 1. Learned counsel for the parties agree that pleadings have been exchanged and the writ petitions itself may be finally decided. Accordingly, we proceed to finally decide the aforesaid writ petitions.
3. The writ petition has been filed praying for the issuance of writ of mandamus commanding the Greater Noida Industrial Development Authority to refund the entire money deposited by the petitioners towards the alleged allotted flats including registration fee and other expenses borne by the petitioners such as fee / stamp for execution of lease deeds/agreement etc., along with 15% compound interest on quarterly basis. A further prayer to quash the impugned communication / office order dated 14.8.2019 and communication / office order dated 17.9.2019 issued by the respondent No. 3- Addl. Chief Executive Officer, Greater Noida, Industrial Development Authority, District Gautam Budh Nagar (Annexure Nos. 4 & 8 to the writ petition) has also been made.
4. The writ petition (C) No. 2255 of 2021 has been filed with the allegations that the Greater Noida Industrial Development Authority (in short "GNIDA") has been established by the Government of Uttar Pradesh for industrial development and besides other functions, it also provides residential facilities to the common man by launching various schemes. GNIDA is an instrumentality of the State and its functions relating to developments of land and other schemes are governed by the provisions of U. P. Industrial Area Development Act, 1976. In the year 2013, the GNIDA launched a scheme in 3 Sectors of Greater Noida, namely, Sector Omicron-1, Omicron-1A and Sector 12 for construction and allotment of multistoried flats/ built up houses under scheme Code BHS-17/2013. For construction and for giving possession of the proposed flats, a period of 3 years was prescribed. The petitioners applied under the scheme for one flat on the basis of cash down payment and paid full amount. The petitioners in order to make the payment towards the flat had taken loan from Bank for making part payment and thereafter they paid the installments fixed by GNIDA together with 12% interest.
5. The petitioner No. 1 was allotted Flat No. 103/H, Tower-H, Sector Omicron-1A under allotment No. BHS173206 vide allotment letter dated 29.1.2014. The petitioner No. 1 paid a sum of Rs.3,89,000/- towards the registration money and further a sum of Rs.8,37,295/- after adjustment of registration money. The total admitted amount deposited by petitioner No. 1 is Rs.50,31,905/-. Likewise, the petitioner No. 2 was allotted flat No. 208/B, Tower-B, Sector Omicron-1A under allotment No. BHS172681 vide allotment letter dated 29.1.2014. The petitioner No. 2 paid a sum of Rs.2,57,000/- towards registration money and further a sum of Rs.5,53,180/- after adjustment of registration money towards allotment. The total admitted amount deposited by petitioner No. 2 is Rs.33,24,438/-.
6. It is contended by the learned counsel for the petitioners that according to the conditions and details disclosed in the brochure of the aforesaid residential scheme, the flats were required to be handed over to the allottees within a period of three years from the date of issue of the allotment letter as per the declaration made by GNIDA under the heading 'N' of the brochure. A condition was also there that the legal documentation and taking of possession is required to be done by the allottees within a period of 60 days from the date of offer of possession and the extension of time for that purpose was with penalty / administration charges. On the failure of the allottees to execute legal documentation within the extended time, the allotment was subject to cancellation and the entire deposited money was to be forfeited by GNIDA. The GNIDA is charging penal interest at the rate of 15% compound interest on quarterly basis on delayed payment as is clear from the brochure of the scheme. The GNIDA failed to give possession of the aforesaid flats within scheduled period of 3 years i.e. January, 2017.
7. Learned counsel for the petitioners submits that the petitioners approached GNIDA authorities regarding the delay in completion of the project but they could not receive any definite and proper response or assurance and were asked to wait.
8. Learned counsel for the petitioners further submits that the petitioners and other allottees approached the respondent GNIDA authorities from time to time, but they were asked to wait for one or two months but without any definite assurance or plan. In the year 2018, the petitioners were informed by the office of the respondent No. 4 that they will get the flats ready in June, 2018 and will get the possession of the flats.
9. Learned counsel for the petitioners submits that considering the delay in getting possession of the flats the petitioners and some of the other allottees started searching for alternative accommodations and also finalized it and approached the GNIDA authorities to refund their amount deposited against the allotment of the proposed flats but the GNIDA authorities did not pay any heed for the redressal of the grievances of the petitioners and assured that possession of the flats would be given upto June, 2019.
10. Learned counsel for the petitioners submits that the Additional CEO, GNIDA issued the impugned office order dated 14.8.2019 mentioning therein that under built up housing scheme BHS-17, the possible date for possession of flats was scheduled to be handed over to the allottees of flats of Sector Omicron-1A in the month of June, 2019 but the delay is occurring in the handing over possession for unavoidable reasons and hence, they are being offered relocation of flats in other sectors of the scheme which is completely developed and is ready for possession, however, the flats in those scheme are subject to increase of value/cost and if the allottees are not ready to accept accommodations, they can surrender their allotments and take back their amount after deduction of 10% of the deposited amount without any interest. The petitioners objected to the conditions of the office order dated 14.8.2019 and made representations against the same.
11. It is next contended that GNIDA authority despite giving assurance for handing over possession of the flats allotted failed to complete the project and failed to give possession of the flats. Instead the GNIDA authority issued another office order dated 17.9.2019 with one more offer to the effect that the allottees who want to stick to their allotment/allotted flats may wait till the completion of those flats in Sector Omicron-1A subject to their acceptance in writing within 30 days. The other conditions of the order dated 14.8.2019 remained same in the office order dated 17.9.2019 issued by the respondent No. 3.
12. Learned counsel for the petitioners submits that the petitioners are now interested in refund of their entire money deposited against the flats together with interest from the date of deposit and press their prayer No. 1 only and the prayer made in the writ petition be confined to relief No. 1 only.
13. Learned counsel for the petitioners have placed reliance upon a decision of a co-ordinate Bench of this Court rendered in Writ-C No. 33847 of 2019 (Vinod Kumar Gautam and 4 others versus State of U.P. and 3 others) dated 26.11.2019 whereby the co-ordinate Bench partly allowed the writ petition with direction to the respondents to refund the entire amount of the petitioners within two months from the date of production of certified copy of the order along with 15% interest from the date of deposit. The learned counsel submits that the petitioners are equally circumstanced inasmuch as the petitioners of the Writ Petition (C) No. 33847 of 2019 were the allottees under the same scheme of GNIDA.
14. Shri Ramendra Pratap Singh, learned counsel representing the respondent Nos. 2 to 4, who has filed counter affidavit, does not dispute the fact as argued and mentioned in the writ petition. He submits that due to circumstances beyond the control of the authority, construction of the flats have been delayed and the orders dated 14.8.2019 and 17.9.2019 have been issued as per the terms of the brochure. He further submits that the money would be refunded as per the terms of the brochure of GNIDA after deduction of 10% along with interest @ 4% per annum.
15. Learned counsel for the petitioners vehemently opposed the arguments made by Shri Ramendra Pratap Singh, learned counsel for the respondent Nos. 2 to 4 and submits that as per Condition-F of the brochure of GNIDA "Mode of Payment" in case of default of payment, petitioners are required to pay the same with interest at the rate of 15% per annum compoundable quarterly, therefore, GNIDA is also liable to return the entire amount along with the same interest.
16. We have considered the rival submissions made by the learned counsels for the parties and have perused the record.
17. We have also gone through the decision dated 26.11.2019 of the co-ordinate Bench of this Court passed in Writ Petition (C) No. 33847 of 2019. The SLP against the said decision has also been dismissed by the Apex Court vide its decision dated 20.11.2020. We are of the view that the petitioners are also entitled to the same benefit as extended to the petitioners of Writ Petition (C) No. 33847 of 2019 particularly, in view of the fact that it relates to the same scheme.
18. In view of the above, considering the facts and circumstances of the case, the writ petitions are partly allowed with direction to the respondents to refund the entire amount of the petitioners deposited by them against the flats allotted within 2 months from the date of production of certified copy of this order along with 9% interest from the date of deposit. Petitioners are also entitled to costs quantified at Rs.20,000/- each.
Order Date :- 12.07.2022
Ravi Prakash
(Ashutosh Srivastava, J.) (Pritinker Diwaker, J.)
