Allahabad High Court
M/S Royal Golf Link City Projects Pvt. ... vs State Of U.P. Thru. Addl.Chief/Prin. ... on 27 May, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation: 2025:AHC-LKO:31403
Reserved: 02.05.2025
Pronounced: 27.05.2025
Court No. - 6
Case :- WRIT - C No. - 3508 of 2025
Petitioner :- M/S Royal Golf Link City Projects Pvt. Ltd. Thru. Authorized Signatory Shri Arun Chaudhary
Respondent :- State Of U.P. Thru. Addl.Chief/Prin. Secy. Infrastructure And Industrial Development,Lko.And 2 Ors.
Counsel for Petitioner :- Shobhit Mohan Shukla,Shraddha Agarwal
Counsel for Respondent :- C.S.C.,Gursimran Kaur,Sachin Upadhyay
Hon'ble Pankaj Bhatia,J.
1. Present petition has been filed by the petitioner challenging a revisional order dated 12.06.2024 insofar as it denies the benefit of restoration charges, insofar as it denies the benefit of waiver of time extension charges and insofar as it denies the benefit of exemption from penal interest.
2. The facts, in brief, are that the petitioner was allotted the property in question in terms of a tender floated in the year 2014 - 15 for allotment of Recreational Entertainment Park, Greater Noida, Gautam Buddha Nagar. In response to the said advertisement and on an application filed by the petitioner, respondent no.3 issued an allotment letter on 17.07.2014 in respect of Plot No.REP-2, Greater Noida ad-measuring 5,26,110 sq.m. to a consortium of three companies. Thereafter, the consortium through their lead member namely M/s Ultra Homes Construction Pvt. Ltd. approached respondent no.3 to sub-divide the plot in terms of Clause 7(d)(e) of the Brochure/Bid Document of the scheme. The share holding of the consortium members is disclosed in Para 8(D) of the writ petition. M/s Ultra Home Constructions Pvt. Ltd. - which was also one of the Amrapali Group of Companies - who was made a lead member alongwith other members of the company formed a Special Purpose Company known in the name and style of M/s Royal Golf Link City Projects Pvt. Ltd (the petitioner herein).
3. It is stated that subsequently after sub-division, the Recreational Entertainment Park, Plot No. REP-02, Sector 27, Greater Noida area ad-measuring 3,64,285 sq.m. came in favour of the petitioner/company and a lease deed was executed in favour of the petitioner on 09.12.2024 (Annexure - 13). It is stated that subsequently, respondent no.3 sent a letter to the District Magistrate, Gautam Buddha Nagar highlighting that the land falling in Sector 27 is being encroached and at about 13,517 sq.m. over which the pond and the connecting path are situated were not free.
4. In terms of the lease deed executed on 09.12.2024, a total premium in the land ad-measuring 3,64,285 sq.m. worked out to Rs.2,98,02,81,800/- out of which the petitioner claims to have paid a premium of Rs.59,60,56,360/- till the time of the exeuction of the lease deed and the balance amount of premium was to be paid in 16 half yearly installments starting from 15.04.2015 up to 15.10.2022 alongwith interest at the rate of 12%.
5. It is stated that despite the execution of the lease deed, the actual physical possession of the land was not given to the petitioner, as such, the petitioner was unable to start the development, however, the map of the project was sanctioned vide letter dated 19.06.2015. It is stated that on 22.12.2014, the petitioner after the execution of the lease deed filed a representation before respondent no.3/Greater Noida Industrial Development Authority (for short 'GNIDA') informing about the encroachment by the farmers and also requested for grant of zero period benefit till the actual handing of the physical possession.
6. It is stated that on 26.12.2014, respondent no.3 requested the S.S.P., Gautam Buddha Nagar asking for a task force for removal of the encroachment over Sector 27 so that the physical possession can be handed over to the developers. It is stated that on 12.03.2015 vide another letter, respondent no.3 issued directions to the planning department stating that due to Shamshan land, litigations were pending before the Hon'ble Court and continuous farming activities were going on, and anti social elements have disrupted the material and machine movement due to which the actual physical possession could not be transferred and zero period benefit should be granted to the petitioner.
7. It is stated that on 29.05.2015, respondent no.3 admitted that the land in question was under encroachment by the farmers due to which the possession could not be handed over and postponed the premium installment for a term of six months. The said installments were further rescheduled and the new date of installments were fixed starting from 13.10.2015 till 13.04.2023 as per the letter dated 29.05.2015 (Annexure - 15). In the same letter it was also stated that till 29.05.2015, there was no default of the payment by the petitioner. It is further stated that on 08.06.2015, a supplementary deed of an area of 836 sq.m. was also executed (Annexure - 16).
8. It is specifically pleaded that for a plot adjacent to the plot allotted to the petitioner being Plot No.REP-02 which also face similar hurdles, respondent no.3 extended a benefit of up to 18 months and shifted the payment schedule accordingly. It is further stated that the land in question allotted to the petitioner was under litigation by the owners of the land before the High Court and the Hon'ble Supreme Court of India which facts came to the knowledge when the petitioner wanted to start construction.
9. It is further argued that respondent no.3 in a reply filed in Writ - C No.4856 of 2015 (Dharam Pal Singh & Ors. v. State of U.P. & Ors.) in Para 16, has clearly admitted that Khasra Nos. 118, 147, 171, 172 & 174 are disputed. It is also argued that even after the execution of the lease deed, a suit being Suit No.375 of 2015 was pending in the Court of Civil Judge for an area ad-measuring 11760 sq.m. - details of the various litigations pending have been disclosed in Para 8(S) of the writ petition.
10. It is further argued that respondent no.3 in its 103rd meeting held on 14.12.2015 framed a policy for providing the zero period benefit and issued an order to that effect on 28.03.2016 (Annexure - 17). In terms of the said, the petitioner vide a representation requested the respondent no.3 for providing the benefits mainly on the ground that the actual physical possession of the plot was not handed over to the petitioner. It also recorded that the original tenure holder preferred a PIL being Public Interest Litigation No.57214 of 2017 before this High Court In which order was passed on 01.12.2017 directing the District Magistrate to take cognizance and to pass orders, the said order is on record as Annexure - 18.
11. It is stated that in pursuance to the said directions given, the District Magistrate vide order dated 14.08.2018 directed the petitioner to give part of the allotted land of area ad-measuring 13,517 sq.m. to the villagers; the said area was a part of the land allotted to the petitioner. The said order was passed in order to give access to the nearby pond and with a view to settle the disputes. The said order is on record as Annexure - 19.
12. It is stated that in pursuance to the said directions, the petitioner agreed to provide access to the villagers by constructing an access road over 2.5 acres of leased land on account of which the petitioner had to re-work the entire development plan and an amended layout plan was required to be prepared and the same was sanctioned in the year 2018 (Annexure - 20).
13. In the light of the said, it is argued that on account of reasons beyond control of the petitioner, the project was delayed and the petitioner was even required to pay lease premium in respect of the land allotted on which roads were constructed for giving access to the villagers. In view thereof, the petitioner once again preferred a representation requesting the respondent no.3 for providing the zero period benefit for a period of 18 months as was extended to the plot adjacent to that of the petitioner. As the matter was not being decided, as such, the petitioner approached this Court by filing Writ - C No.34296 of 2019 wherein orders were passed on 23.10.2019 directing respondent no.3 to decide the pending representation and pending the decision no coercive measures were to be taken. The said order is on record as Annexure - 22.
14. It is also highlighted that during the course of time, Writ Petition (Civil) No.940 of 2017 (Bikram Chatterji v. Union of India & Ors.) was preferred before the Supreme Court against the Amrapali Group wherein various orders were passed by the Supreme Court and the progress of the projects of Amrapali Group were continuously monitored by the Supreme Court The orders passed are on record as Annexure - 23 collectively.
15. It is stated that the petitioner was also a party of the Writ Petition (Civil) before the Supreme Court, as in the affidavit filed by the Amrapali Group on 03.12.2018, it was stated that the said group has invested in the petitioner/company. It is stated that ultimately vide order dated 10.07.2020, the Supreme Court extended the benefit of calculation of dues for all the lease holders at the rate of MCLR + 1 interest rate which was further clarified vide order dated 19.08.2020, however, the respondent no.3 rejected the claim of the petitioner vide order dated 18.02.2020.
16. It is further stated that the petitioner submitted a revised map for sanction on 04.08.2020 and also deposited the requisite fee, however, the same has not been sanctioned till date. The copy of the revised map is on record as Annexure - 24. It is stated that the petitioner ultimately preferred a revision dated 18.03.2021 under Section 41(3) of the U.P. Urban Planning and Development Act read with Section 12 of U.P. Industrial Area Development Act assailing the order dated 18.02.2020.
17. It is further stated that subsequently the injunction order granted on 14.02.2019 by the Supreme Court was vacated and thereafter the development could commence.
18. It is further stated that the petitioner to show its bonafide, with a view to construct and complete the project, deposited an amount of Rs.21 crore for re-validation of the map and also requested for fresh calculation of the additional purchasable FAR, however, the same still has not been approved by the respondent no.3.
19. It is stated that on 30.05.2022, the petitioner preferred a detailed representation to the respondent no.3 for grant of zero period benefit on account of pending litigations before this Court as well as the Supreme Court and also requested for restructuring of the payment schedule as per the judgment dated 19.08.2020 of the Supreme Court in Writ Petition (Civil) No.940 of 2017 (Bikram Chatterji v. Union of India & Ors.) for recalculation of the dues with interest at the rate of MCLR + 1 from the date of allotment, however, the same was never considered by the respondent no.3.
20. It is stated that despite the representations being pending, respondent no.3 vide its order dated 20.07.2022 revoked the lease deed of the petitioner without opportunity of hearing and alleged that outstanding dues to the tune of Rs.3,60,01,80,414/- were due and payable; on the said calculation which itself was contrary to the directions of the Supreme Court further charges are to be levied as per the revisional order. The cancellation order is on record as Annexure - 27.
21. The petitioner approached the Revisional Authority by filing an addendum on 26.07.2022 assailing the cancellation order dated 20.07.2022. It is further stated that as the revision was not being decided, the petitioner preferred writ petition being Matters Under Article 227 No.2765 of 2022 which was disposed off vide order dated 03.08.2022 with directions to respondent no.1 to decide the representation within a period of three months and interim protection was granted to the petitioner against coercive steps. It is stated that a reply was submitted by the respondent no.3 in the pending revision and the matter was finally decided on 12.06.2024 (the impugned order).
22. In terms of the impugned order, the cancellation order dated 20.07.2022 was quashed and the plot was restored in favour of the petitioner finding the cancellation order to be arbitrary and illegal, however, it was provided that the restoration charges are to be paid. It was further provided that the lease shall be restored subject to the deposit of 25% of the dues.
23. Arguing against the parts of the order passed the revision, the submission of leaned counsel for the petitioner is that the order is bad in law insofar
a. as it denies the benefit of zero period benefit as the entire land was not free from encumbrances;
b. the restoration charges could not be levied in view of the Government Order dated 05.11.2019;
c. the order is further bad in law as it fails to clarify the imposition of interest on arrears and penal interest etc., for the period 20.07.2022 - the date of cancellation - till the date of restoration of lease;
d. the order is further bad in law insofar as it imposes the time extension charges for grant of three years to complete the project.
e. It is further bad in law inasmuch as it denies the benefit of recalculation of the dues as per the order of the Supreme Court to the petitioner despite it being a part of the Amrapali Group of Companies.
f. The order is further bad in law as it denies the benefit of zero period benefit for the period 14.02.2019 up to 31.03.2021, the date on which the injunction order was passed by the Supreme Court and was operating on the petitioner's land.
g. The order is further bad in law as it denies the benefit of zero period benefit for the period 01.04.2020 till 31.03.2022.
24. During the course of the hearing, learned counsel for respondent no.2 in all fairness assisted this Court and an effort was made for settlement and directions were issued for meeting in between the officers, however, the same appears to bear no fruitful results except on three points.
25. The home buyers have also intervened and expressed that although substantial part of the project is complete, however, on account of the glitches and the minor disputes in between the petitioner and the respondent no.3, the home buyers are suffering. Although the respondent no.3 have granted benefits to the similarly placed persons, however, either on account of the attitude of the petitioner or on account of the attitude of the respondent no.3, it is home buyers who are suffering. It is also argued that imposition of interest without authority of law will ultimately be realized from the home buyers and would, thus, cause undue burden on the home buyers without any justification.
26. During the course of hearing, both the parties admitted that the disputes were confined to the issues decided vide impugned order and contained in Para 12(i), 12(ii) insofar as it refutes the zero period benefit and directs payment of restoration charges; no dispute exists with regard to observation made in Para 12(iii), Para 12(iv) & Para 12(vi); there is a dispute with regard to the observations made in Para 12(v) & Para 12(vii).
27. Challenging part of the order which directs the payment of restoration charges, it is submitted by the counsel that the impugned order itself records that the cancellation order was bad in law and charging the restoration on the basis of an order which was found to be arbitrary is without any basis. It is argued that the facts as narrated were also contested before the RERA in Complaint No.NCR 144/12/103183/2022 and NCR 144/06/96025/2022 and in the said order, the RERA had observed and granted the benefit of force majeure from 14.02.2019 till 05.04.2021 as no construction was possible on account of an order passed by the Supreme Court and it was further directed that no interest ought to be given to the buyers. It is further emphasised that even the land which was directed to be surrendered ad-measuring 13,517 sq.m. is also subject to the payment of premium which has not been adjusted by the respondent.
28. In the light of the said, respondent no.3 was called upon to file a counter affidavit which has been filed by the respondent in the form of instructions, which were taken on record. In the said instructions the stand of GNIDA is that the claim of parity with M/s Decent Buildwell is bad as they were granted land for residential constructions and no show cause notice was given before cancellation. The claim of parity with M/s Cropserv Pvt. Ltd. is unjustified as the allotment to them was under institutional category and only benefit of not charging penal interest for period from date of cancellation till restoration was granted to them .The claim of parity with Godrej Project is unjustified as the benefits extended to them were on advice and directions of the State Government.
29. The claim of the petitioner is being denied and the extension of the benefit as given to the plot adjacent of the other similarly placed persons are being denied mainly on the ground that they were distinct and on the ground that the benefits as claimed are not on the same footing as the other similarly placed persons.
30. In the light of the said, the first question to be decided is with regard to benefit of zero period and levy of restoration charges.
31. Reliance is placed upon the Government Order dated 05.11.2019 wherein it was directed by the State Government that if any order is passed under Section 41 whereby it is found that the order of the development authority regarding cancellation is illegal and not in accordance with the Rules, there is no justification/provision for charging restoration charges. In the stand taken by the respondents, there is no mention of any provision for charging of restoration charges. The same being contrary to the Government Order and without any justification/authority cannot be justified. The stand of the respondents in instructions that the petitioner cannot claim parity with Decent Buildwell as the plot allotted to them was under residential category and order of cancellation was without show cause notice is unjustified as in the case of petitioner also residential accommodations were to be constructed and no show cause notice was servedto them also as such ,on both counts the order directing the payment of restoration charges is set aside.
32. With regard to the claim of the petitioner that they are not liable to pay any penalty from the order of cancellation till the order of restoration, the claim is based upon the parity claimed with an order passed on 26.10.2023 in the case of M/s Decent Buildwell Pvt. Ltd. v. GNIDA wherein the same Revisional Authority while setting aside the cancellation order directed no payment of interest, no penal interest and no time extension charges to be charged for the cancellation period and in similarly in the case of M/s MD Corpserv Pvt. Ltd. v. Noida, an order was passed that no penal interest can be charged for the period from the order of cancellation till the restoration of the plot.
33. As the said orders have been passed by respondent no.3, the stand taken by the respondent no.3 in the instructions that the petitioner cannot claim parity with the said persons only on the ground that only the penal interest for the period from the date of cancellation till the date of restoration was waived off, no justifiable defence has been cited by the respondent to deny the same benefit to the petitioner, as such, the charge of penalty interest for the period 20.07.2022 (order of cancellation) till 12.06.2024 (order of restoration) is not liable to be charged from the petitioner, as such, the order directing the charge of penalty interest is set aside. The said levy is also bad as the order of cancellation itself was found to be bad in law in the impugned order itself and a wrong order cannot lead to demand of penal interest on the person who has been wronged.
34. With regard to the claim of the petitioner for the benefit of reduction of interest for the period 09.06.2020 till 20.07.2022 (date of cancellation) which is based upon the Government order dated 09.06.2020 which was issued to deal with the Covid - 19 pendamic and recommendations were made for reduction of the interest and implement MCLR + 1 interest and the Government Order having been adopted by the authority in its board meeting, was binding on the respondent no.3 and similar benefits were also extended on M/s Decent Buildwell Pvt. Ltd. and Godrej projects thus, the petitioner is entitled to the benefit of Government Order dated 09.06.2020.
35. With regard to the benefit of grant of one year time extension charges on the foundation of Government Order dated 20.07.2022 and a further period of two years on the parity with the order passed in similarly placed persons being order dated 26.10.2023 in Appeal No.98 of 2023 and order dated 16.07.2024 in Appeal No.133 of 2023, clearly there is no justifiable reason to deny the same benefit to the petitioner, as such, it is held that the petitioner would be entitled to the time extension without any cost as has been extended vide Government Order and similar orders.
36. With regard to the claim of the petitioner of zero period for the period 09.12.2014 till 14.08.2018, the claim of the petitioner is based upon the argument that the site was not available on account of disputes and stay orders and the orders passed by the District Magistrate for surrender of part of the plot and there being no denial that the encroachment existed. However, as similar benefits have not been extended to other similarly placed allottees, the claim to that extent merits rejection.
37. With regard to the claim of the petitioner for grant of interest at the rate of SBI's MCLR fixed by the Apex Court vide order dated 10.07.2020, the claim is founded on the admission of the respondent no.3 in reply to the revision on Point No.4 to the effect that it has been calculating the liability in all the cases of SBI's MCLR, however, as the allotment of the petitioner was cancelled, the petitioner cannot be given the same. The said reasoning is wholly flawed as admittedly the lease has been restored. There was no reason to not grant the benefit of interest to be calculated on SBI's MCLR + 1.
38. Thus, for all the reasons above, the impugned order insofar as it denies the benefit of restoration charges, the extension of time without payment of charges, non-charge of penalty interest and zero period benefit is wholly unjustified and the order to that effect is bad in law. Thus, the writ petition is disposed off with direction to the respondent no.3 to recalculate the dues as indicated in the cancellation order dated 20.07.2022 (Annexure - 27) without charging the restoration charges, grant the benefit of time extension without any charges and calculate the interest without charging any penal interest at the rate of SBI's MCLR + 1. It is further directed that the Maps as submitted by the petitioner before cancellation order was passed shall be re-validated by the Respondent no 3 as was also done in case of adjacent allottee, Godrej Projects.
39. The recalculated amounts as directed above shall be handed over to the petitioner within a period of two weeks from this judgment.
40. In terms of the directions issued above, 25% shall be paid by the petitioner after deducting the amount of Rs.5 Crore as the petitioner has deposited an amount of Rs.5 Crore in terms of the interim order passed by this Court and any amounts that may have been paid within the time as prescribed in the impugned order.
41. The said 25% of the amount after deducting the amounts already paid shall be payable within a period of 60 days from the date of communication of the demands quantified on the basis of directions given herein above.
42. The respondent/authority shall re-validate the map of the petitioner within four weeks.
43. The petitioner shall be entitled to take steps before the RERA Authorities as may be advised.
Order Date :- 27.05.2025 [Pankaj Bhatia, J.]
nishant
