Any Graphics Pvt. Ltd. Thru. Its ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 2735 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
(Lucknow)
 
**********
 
Court No. - 3
 

 
Case :- WRIT - C No. - 1000781 of 2012
 

 
Petitioner :- Any Graphics Pvt. Ltd. Thru. Its Director Kuldeep Goel And Anr
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Indust. Dev. And Ors
 
Counsel for Petitioner :- Sandeep Dixit,Varadraj Shreedutt Ojha
 
Counsel for Respondent :- C S C,Rajnish Kumar,Waseeq Uddin Ahmed
 
**********
 
Hon'ble Rajan Roy,J.

Heard Mr. Sandeep Dixit, learned Senior Advocate and Mr. Varadraj Shreedutt Ojha, leaned counsel for the petitioner, learned Standing Counsel for the State Mr. Waseeq Uddin Ahmed, learned counsel for opposite parties no. 2 and 3.

This petition was filed in the year 2012 challenging an order dated 17.02.2011 by which the revision of the petitioner against order dated 30.03.2009 passed by the Assistant General Manager (Industries), New Okhla Industrial Development Authority (NOIDA) by which the claim for refund of interest charged on the amount of consideration for the plot allotted to the petitioner initially and on the installments which were payable, was declined. The order dated 30.03.2009 has also been challenged.

The facts of the case, in brief, are that Industrial Plot No. 5, Block-A, Sector - 65, NOIDA was allotted to the petitioner no. 1 on 25.08.2003. According to the petitioner, an amount of Rs. 55,56,770/- which was the consideration for the plot was offered to be deposited by him vide draft dated 20.09.2003 along with challan dated 23.09.2003 which are annexed as Annexure-4 and veracity of which has not been denied by the opposite parties in the counter affidavit, but, the Bank refused to accept the same on account of instructions of the respondents-authorities. These averments have been made in para 8 of the writ petition and in para 10 of the counter affidavit of NOIDA it has been stated that the opposite party no. 1 i.e. State Government had raised objections on 51 industrial plots allotted in August, 2003, the petitioner was allotted the plot in question on 25.08.2003, hence in view of the orders issued by the State Government, the remaining amount was not accepted by NOIDA, meaning thereby the aforesaid facts are not denied by NOIDA. It appears that some amount of consideration was deposited by the petitioner in pursuance to the allotment, but that is not an issue involved herein.

The fact of the matter is that in spite of allotment neither possession was given to the petitioner nor sale-deed was executed. This was on account of some direction of the State Government as already noticed hereinabove and as is mentioned in the counter affidavit of NOIDA. Ultimately, the plot in question came to be cancelled on 25.09.2004. Thereafter, in pursuance to some directions of the State Government that re-allotment can be considered on merits, allotment of the same plot was restored to the petitioner vide order dated 27.10.2008, a fact which is not in dispute. The said order is annexed as Annexure-19 to the petition. According to the said order, restoration charges were payable to the extent of Rs. 29,92,500/- about which there is no dispute. The said restoration order does not mention the payment of any interest by the petitioner on the amount which was due in pursuance to the initial allotment nor on the installments which would have been paid, however, for some inexplicable reasons, the petitioner was required to deposit interest on installments amounting to Rs. 36,57,000/- and also interest on the allotment money i.e., Rs. 59,60,000/-. This money was deposited by the petitioner, however, subsequently realizing that they were not liable to pay interest on these amounts they sought refund, which was declined by the authority vide its letter dated 30.03.2009 against which the petitioner filed a writ petition, but was relegated to remedy of revision under Section 41 of U.P. Urban Planning and Development Act, 1973 read with Section 12 of U.P. Industrial Area Development Act 1976.

Before the Revisional Authority, the petitioner cited decisions by Division Benches of this Court in similar matters pertaining to the same scheme wherein this Court had disapproved the charge of interest on such amount where initial allotment had been cancelled not on account of any reason attributable to the petitioner, but on account of directions of the State Government, yet the Revisional Authority had not given benefit of the said decision. At this stage, it is not out of place to mention that the petitioner had already challenged the cancellation of its allotment vide Writ Petition No. 42840 of 2004 along with other allottees which was decided by a common judgment dated 17.01.2005 by which the allottees were given one opportunity to appear before the NOIDA and place their version, but this exercise did not result in any favourable order and ultimately they had to seek refund as already mentioned therein. In fact, the revisional order dated 30.03.2009 does not mention any reason as to why benefit of the Division Bench judgment in the case of similarly situated persons dated 15.02.2007 rendered in Civil Misc. Writ Petition No. 52915 of 2006 (Messers G.K. Enterprises Private Limited vs. State of U.P. and others) against which Special Leave Petition filed by NOIDA was dismissed on 30.07.2007, copy of order is annexed as Annexure-28 other similar orders by the Division Benches are also annexed as part to Annexure-28 to the writ petition could not be extended to the petitioner. The order dated 30.03.2009 passed by NOIDA declining refund of the interest charged from the petitioner as already referred does not give any reason in support of such denial, except that interest has been charged as per condition no. 1 of the restoration order dated 27.10.2008. The Court has perused the said condition and it reads as under:

"Hkw[k.M ds fo:} ns; /kujkf'k dk Hkqxrku dj ys[kk foHkkx }kjk tkjh vns;rk izek.k i= izLrqr djuk gksxkA"

It nowhere refers to any interest being payable on the installment or the allotment money in a case where the allotment was cancelled and thereafter restored after several years during which the petitioner was not in possession as the petitioner was never given possession of the same.

The Revisional Authority's order notes down the contentions of the rival parties and it is only in para 5 that it records its own observations/reasons/findings with regard to issue involved. Para 5 reads as under:

"5- lquokbZ ds nkSjku izkf/kdj.k }kjk miyC/k djk;s x;s vfHkys[kksa ,oa ;kph }kjk izLrqr fd;s x;s rF;ksa ,oa nksuks i{kkaas dks lquus ds i'pkr izdj.k esa lE;d fopkjksijkUr 'kklu Lrj ij fuEuor~ fu.kZ; fy;k x;k&

(1) ;kph dks iz'Ukxr Hkw[k.M dk vkoaVu iqjkuh nj ij :0 2310-00 izfr oxZ eh0 ij gh djrs gq, C;kt ,oa iquLZFkkiuk 'kqYd fy;k x;k gSA ;fn fnukad 27-10-08 dks izpfyr Hkw[k.M dh vkoaVu nj :0 5995-00 izfr oxZeh0 dh nj ls vkoaVu fd;k tkrk rks izkf/kdj.k }kjk fy;k x;k C;kt ;kph dks okil fd;s tkus dk vkSfpR; curkA mDr fLFkfr esa C;kt dh ns;rk mfpr gSA

(2) essa eSllZ th0ds0 b.Vj izkbtst] eS0 fMEiy fdz,'ku ,oa eS0 gYnhjke LuSd izk0 fy0 dk izdj.k bl vk/kkj ij fHkUu gS D;ksafd bu izdj.kksa dk fuLrkj.k ek0 mPp U;k;ky; ds vkns'k fnukad 17-01-05 ds vuqikyu esa fd;k x;k rFkk izkf/kdj.k Lrj ij xfBr lfefr dh cSBd fnukad 13-02-06 esa vkoafV;ksa dh lquokbZ djrs gq, fujLrhdj.k okil fy;s tkus dk fu.kZ; izkf/kdj.k }kjk fy;k x;k gS] tc fd iz'uxr izdj.k esa lfefr dh laLrqfr ds vk/kkj ij fujLrhdj.k okil ugh fy;k x;k vfirq vkoaVh ds izR;kosnu fnukad 22-08-08 ij vkoaVu lfefr dh laLrqfr ij rRle; dh izpfyr uhfr ds vuqlkj iquLZFkkiuk 'kqYd izpfyr Hkw nj dk 10 izfr'kr ,oa cdk;k jkf'k ij C;kt mDr ;kstuk ds czks'ksj dh 'krkZsa ds vuqlkj fu/kkZfjr djrs gq, izkf/kdj.k ds dk;kZy; ds i= fnukad 27-10-08 ds }kjk bl 'krZ ds lkFk Hkw[k.M dks iquLZFkkfir fd;k x;k fd Hkw[k.M ds fo:) lEiw.kZ ns; /kujkf'k dk Hkqxrku dj ys[kk foHkkx }kjk tkjh vns;rk izek.k i= izLrqr djuk gksxk ,oa ;kph dks viuh ;kfpdk ek0 U;k;ky; ls okil djuh gksxhA mDr ds dze esa gh izkf/kdj.k ls iquLZFkkiuk i= tkjh gksuss ds i'pkr vkoaVh }kjk ek0 U;k;ky; ls viuh ;kfpdk okil yh x;hA C;kt vkfn dh tks Hkh /kujkf'k vkoaVh }kjk tek dh x;h Fkh og iquLZFkkiuk 'krksZa dks ekurs gq, dh x;h FkhA vr% vc ;kph dks izkf.kdj.k }kjk C;kt okil fd;s tkus dk dksbZ vkSfpR; ugha gSA

mDr fu.kZ; ds lkFk izkFkhZ dh fjohtu ;kfpdk fnukad

11-01-2010 ,rn~}kjk fuLrkfjr dh tkrh gSA"

The Court has perused extract of the brochure which is referred in the impugned order and in the counter affidavit and has been annexed along with the writ petition. It asked the learned counsel for the NOIDA to point out any provision therein under which interest, as has been charged in this case on the installments due and the allotment money, was payable in the facts and circumstances of the case noticed hereinabove, but none could be shown. The Court finds that Clause (K) at page 42 of the paper book only refers to restoration of industrial plot/shed and it requires the allottee, whose allotment has been restored to pay charges on restoration of his plot, subject to the conditions mentioned therein. Under the said clause, restoration charges were payable if the restoration has been made after cancellation before dispossession, it presumes possession being handed over prior to cancellation which is not the case herein. Secondly, restoration charges were payable if plot/shed is restored within six months from the date of dispossession. Hereagain this provision applies where possession had been handed over which is not the case herein. Thirdly, restoration charges were payable if plot is restored after six months from the date of dispossession which also pre-supposes possession has been handed over which is not the case here. According to the petitioner, the possession was handed over after restoration of the plot vide order dated 27.10.2008. At this stage, learned counsel pointed out a recital in the order of revisional authority that possession was handed over to the petitioner on 30.12.2008 which also establishes that possession is after restoration and not prior to it. Annexure-24 is the possession letter in this regard. There is nothing on record to show that possession was handed over to the petitioner in pursuance to the initial allotment dated 25.08.2003. No such proof has been filed with the counter affidavit, in fact there is no such averment therein.

The brochure nowhere says that interest would be charged on the allotment money after the allotment has been cancelled and it is restored subsequently that too after several years. Moreover, this issue came up for consideration before a Division Bench of this Court in the case of Messers G.K. Enterprises Private Limited (supra) and this Court disapproved the charge of such interest. Relevant extract of the judgment is quoted hereinbelow:

"We have heard Sri Sanjeev Singh learned counsel for the petitioner, the learned Standing Counsel appearing for respondent no. 1 and Sri Vivek Mathur learned counsel appearing for respondent nos. 2 and 3.

Sri Sanjeev Singh learned counsel for the petitioner has submitted that NOIDA could not have charged interest for the period between 25th September, 2004 and 3rd March, 2006 as admittedly during this period the allotment order made in favour of the petitioner was cancelled and there was no occasion for the petitioner to deposit the amount.

Sri Vivek Mathur learned counsel appearing for NOIDA has not been able to substantiate how interest could have been charged for the aforesaid intervening period. The interest can become due only when the amount due is withheld. During the aforesaid period when the allotment order had been cancelled, the NOIDA could not have asked the petitioner to deposit the amount. In such circumstances interest could not have been charged for the intervening period as there was no occasion for the petitioner to make the payment and the question of withholding the payment does not arise.

The question that now remains to be determined is the refund of the interest charged by NOIDA for the intervening period. For the said purpose Sri Vivek Mathur has suggested that in consultation with the petitioner, NOIDA authorities will calculate the exact amount and the excess amount deposited by the petitioner shall be refunded as early as is possible.

We, therefore, modify that part of the order dated 22nd March, 2006 which directs the petitioner to deposit the interest also. However, we leave it open to NOIDA to calculate the amount that has been charged towards interest for the period between 25th September, 2004 and 3rd March, 2005 in consultation with the petitioner within a period of four weeks from the date a certified copy of the order is produced by the petitioner before the Chief Executive Officer, NOIDA and we have no reason to doubt that once the amount has been determined by NOIDA, it will refund the excess amount expeditiously.

Subject to the observations made above, the writ petition is disposed of."

The Division Bench clearly held that the counsel for the NOIDA had not been able to substantiate how interest could have been charged for the aforesaid intervening period i.e. the period during which the allotment remained cancelled till its restoration. It observed that the interest become due only when the amount due is withheld. During the aforesaid period when the allotment order had been cancelled, NOIDA could not have asked the petitioner to deposit the amount. In such circumstances interest could not have been charged for the intervening period as there was no occasion for the petitioner to make the payment and the question of withholding the payment does not arise. It was also a case of seeking refund after deposit of such amount for which petitioner was not liable.

Against the said decision as already noticed Special Leave Petition was filed by the NOIDA which was dismissed. Other petitions were also decided in terms of the aforesaid judgment dated 15.02.2007. The said judgment has attained finality between the parties. It was rendered in the case of similarly situated persons in respect of the same scheme of NOIDA, therefore, the said judgment squarely applies to the facts of the case. The Revsoinal Authority has not given any acceptable reason for not following the said dictum which is highly improper. The reason given therein is that the decision was being taken by the Revisional Authority in pursuance to the judgment dated 17.01.2005 which is hardly a ground for distinguishing the case of the petitioner because in the aforesaid case of Messers G.K. Enterprises Private Limited (supra) also the impugned decision had been taken in pursuance to the aforesaid judgment dated 17.01.2005, a fact which is noticed in the judgment dated 15.02.2007. Once the initial allotment dated 25.08.2003 of the petitioner was cancelled on 25.09.2004 in pursuance to some inquiry and the same was restored only on 27.10.2008 and during this period the petitioner had not remained in possession of the plot in question, there is no reason as to why it should be liable to pay interest as has been charged from it. Such interest would be chargeable only when the allotment was subsisting and the petitioner did not deposit the due amount but it could not have been charged when the allotment itself had been cancelled and petitioner had not been in possession of the land in question.

It is not out of place to mention that the petitioners of the writ petitions mentioned hereinabove orders of which are on record had also initially paid the amount and then sought refund which was allowed by this Court.

In view of the above, the petitioner is entitled to the benefit of judgment dated 15.02.2007 in the case of Messers G.K. Enterprises Limited (supra).

In view of the above, the impugned orders are hereby quashed. The writ petition is allowed.

The opposite parties no. 2 and 3 are directed to refund the interest amount paid by the petitioner as noticed hereinabove and as is mentioned at SL No. 103 and 105 of the challan annexed as Annexure-20. This shall be done within two months, failing which the opposite parties no. 2 and 3 shall be liable to pay interest on the said amount at the rate of 9% from today till the date of actual payment.

[Rajan Roy, J.]

Order Date :- 27.1.2023

Santosh/-