Allahabad High Court
M/S Windsor Corporate Tower Pvt. Ltd. vs State Of U.P. And 3 Others on 31 October, 2025
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:191742
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 9703 of 2021 Judgement Reserved on 19.09.2025 Judgement Delivered on 31.10.2025
M/S Windsor Corporate Tower Pvt. Ltd.
.....Petitioner(s)
Versus
State Of U.P. And 3 Others
.....Respondent(s)
Counsel for Petitioner(s)
:
Rahul Agarwal, Ram M. Kaushik
Counsel for Respondent(s)
:
Kaushalendra Nath Singh
Court No. - 2
HON'BLE PRAKASH PADIA, J.
1. Heard Sri R. M. Kaushik, learned counsel for the petitioner and Sri Kaushalendra Nath Singh, learned counsel for the respondents.
2. The present writ petition has been filed with the following reliefs :-
(a) issue a writ, order or direction in the nature of Certiorari quashing the order dated 15.01.2021 (Annexure to the writ petition) passed by the respondent no. 2 under Section 12 of the U.P. Industrial Area Development Act, 1976 read with Section 41(3) of the Urban Planning & Development Act, 1973 as also the orders dated 25.05.2018 and 03.09.2020 (Annexure-2 to the writ petition) passed by the respondent no. 4 demanding extension charges @4% on the prevailing rate of allotment plus 2% location charges from the petitioners,
b) issue a writ, order or direction in the nature of mandamus to the respondent nos. 3 and 4 to calculate the extension charges as per Clause 8(c) of the Lease Deed on the premium mentioned in the lease deed dated 10.12.2009 as well as mentioned in the policies of NOIDA (Annexure-15 to the writ petition);
c) issue a writ, order or direction in the nature of Mandamus to the Respondent Nos. 3 & 4 to issue a completion certificate without insisting upon the recovery of extension charges as per the impugned communications dated 25.05.2018 and 03.09.2020 and as approved by the Respondents.
3. The facts, as stated in the writ petition and arguments made by the leaned counsel for the petitioner are that M/s Carnoustie Managemer. (India) Pvt. Ltd. (hereinafter referred to as "Original Allottee") was allotted an institutional Plot No. FC-24C, Sector 16A by New Okhla Industrial Development Authority (hereinafter referred to as "NOIDA"), vide allotment letter dated 6.11.2008 on lease of 90 years. After allotment, a lease deed of the aforesaid plot was executed for an area of 5427.74 square meters by NOIDA in favour of the Original Allottee on 10.12.2009. The total premium was Rs.11,95,83,968/-. The said premium was calculated Rs. 22,032/- per square meters. In addition to aforesaid premium, the lessee, i.e., Original Allottee was also required to pay annual lease rent @2.5% of the total premium.
4. As per Clause 8(a) of the lease deed dated 10.12.2009, the lessee was required to complete the construction within 5 years from the date of execution of the lease deed. It was further provided under Clause 8(c) of the lease deed that in case, the lessee was unable to complete the construction within time specified, an extension on payment of extension charges @ 4% of total premium was payable. Clause 8(c) of the lease deed dated 10.12.2009 is as under:-
"In the event of an extension, extension charges @ 4% of the premium would be chargeable for grant of extension for each year on pro-data basis i.e. 1.3% of the premium shall be payable for the month. The rate of extension charges as mentioned above may be reviewed by the Lessor for time to time without any prior notte notice."
5. As per cause 13 of the lease deed, the lessee had a right to transfer the plot to another person with prior consent of NOIDA, subject to deposit of transfer charges, which were to be 10% of prevailing rate of allotment.
6. The Original Allottee was unable to complete the construction within the time specified in the lease deed, i.e., within 5 years from the date of execution of the lease deed, it applies for extension of 5 years from 21.11.2012 to 20.12.2017. The NOIDA by an order dated 26.10.2015, granted extension to the Original Allottee on payment of extension charges of Rs.2,39,17,500/, as per the terms and conditions mentioned in Clause 8(c) of the lease deed.
7. The Original Allottee was not intending to hold the plot, as such, he applied to NOIDA for permission to transfer his right in favour of the petitioner. The NOIDA issued memorandum of transfer dated 9.11.2015 in favour of the Original Allottee and permitted him to transfer the plot in question in favour of the petitioner, subject to terms and conditions, mentioned in the memorandum of transfer.
8. As per the memorandum of transfer, (i) the transfer charges applicable @ Rs.12,210/- per square meters, amounting to Rs.6,62,72,710/- were to be paid, (ii) annual lease rent @ 2.5% of total premium of plot at current allotment rate + location charges and were to be paid (iii) the transferee shall bound by terms and conditions of the lease deed executed between the NOIDA and Original Allottee. Under clause 13 of the memorandum of transfer, it was also provided that the memorandum of transfer be part of transfer deed, to be executed between the transferor and transferee. Thus, as per clause 3(c), the annual lease rent, which was required to be paid @ 2.5% per annum of total premium was amended by virtue of clause 2 of the memorandum of transfer and thus, the petitioner was required to pay annual lease rent @ 2.5% of total premium of plot at current allotment rate + location charges.
9. So far as the extension charges are concerned, there was no change in relation to the extension charges, as mentioned in clause 8(c) of the lease deed dated 10.12.2009. Thus, the extension charges were payable @ 4% of premium, for each year.
10. It is further stated that the transfer deed was executed by Original Allottee in favour of the petitioner on 8.1.2016 on payment of transfer charges of Rs.6,62,72,710/- to NOIDA and consideration, as mentioned in the transfer deed to Original Allottee. The transfer deed has been brought on record by way of annexure-6 to the writ petition.
11. The extension granted to the Original Allottee was upto 20.12.2017, as such, the petitioner applied for extension till 18.12.2018 and a sum of Rs.47,83,500/- was also deposited as per terms and conditions of Clause 8(c) of the lease deed. Apart from the aforesaid amount of Rs.47,83,500/-, the petitioner has also paid CGST & SGST on aforesaid amount. Thus, the total amount paid by the petitioner was Rs.56,44,530/-
12. The NOIDA by order dated 25.5.2018 communicated to the petitioner that the extension was sought for the period 9.11.2016 to 8.12.2018 and the extension charges are payable @ 4% of the current allotment rate of Rs.1,22,100 per square meters + 2% location charges. Thus, after adjusting the sum of Rs.47,83,500/-. already paid by the petitioner, balance of Rs.5,15,48,300/- was demanded as payable to the NOIDA.
13. Since the aforesaid charges were contrary to the terms and conditions of the lease deed as well as memorandum of transfer, the petitioner filed a representation dated 11.6.2018 to NOIDA praying that the extension charges be calculated on the original premium, i.e., @ Rs.22,030 per square meters. As nothing was done by the NOIDA, the petitioner filed reminder on 24.10.2018 to the aforesaid representation and second reminder was filed on 4.8.2020.
14. It is further stated that after completing the construction, the petitioner filed an application on 31.8.2020 before the NOIDA requesting to issue completion certificate, so that the commercial operation on the plot would commenced.
15. The petitioner has further deposited a sum of Rs.75,25,818/-including GST, as the extension charges for the period 21.12.2018 to 20.10.2020, including grace period of 6 months as per NOIDA order dated 18.8.2020, however, by order dated 3.9.2020, the NOIDA raised demand of Rs.11,88,69,503+ GST towards extension charges, calculated @ 4% of the current allotment rate + location charges.
16. The aforesaid demand was raised without giving any notice and opportunity of hearing to the petitioner and various amount deposited by the petitioner was not taken into consideration.
17. Being aggrieved with the aforesaid communication. the petitioner preferred revision under section 12 of the U.P. Industrial Development Act, 1976 against the demand dated 3.9.2020 and 25.5.2018. The respondent no. 2, by an order dated 15.1.2021 has rejected the revision filed by the petitioner, mainly on the ground that the respondent nos. 3 & 4, i.e., NOIDA and OSD of NOIDA had unlimited right to review the basis, on which the extension charges are payable. The respondent no. 2 has further held that the demand has been raised by the NOIDA as per the prevailing policy and therefore, the orders impugned are lawful orders and did not suffer from any illegality.
18. The learned counsel for the petitioner has argued that the impugned demand has been raised by the NOIDA for the period 9.11.2016 till 8.8.2021, whereas the NOIDA has already granted extension till 20.12.2017 to the Original Allottee and the petitioner has completed the construction and applied for completion certificate on 30.8.2020, as such, after the said date, no extension charges are payable. It is also argued that extension charges can be levied only on the basis of lease premium and not on the current allotment rate + location charges.
19. The present writ petition was entertained by Coordinate Bench of this Court and an interim order was granted on 17.6.2021, to the effect that in case, the petitioner deposit sum of Rs. 3 crores in addition to what he has deposited with regard to the extension charges, the respondents shall not demand any further amount towards extension charges from the petitioner until further orders of this Court. The Court has further directed to NOIDA to issue completion certificate, in case, there is no legal impediment. The petitioner has stated that in compliance of the order dated 17.6.2021, he has already deposited Rs. 3 crores and after receipt of payment, the respondent no. 3 has issued complete certificate on 3.3.2022 and functional certificate dated 4.3.2022.
20. The counsel for the petitioner has argued that as per Clause 8(c) of the lease deed dated 10.12.2009, the extension charges can be levied @ 4% of premium of lease deed, i.e. Rs.11,95,83,968/-. It is further argued that in terms of clause 8(c) of the lease deed, the NOIDA can review the extension charges but cannot review the basis, on which the extension charges are payable. Elaborating his argument, the learned counsel for the petitioner has argued that in Clause 8(c) of the lease deed, it is provided that "the rate of extension charges as mentioned above may be reviewed by lessor for time to time without any prior notice". Thus it is only rate i.e. 4%, which can be reviewed by lessor, but the basis of percentage, i.e., the amount, on which the percentage of extension charges has to be levied cannot be changed or reviewed. The learned counsel has further argued that the NOIDA may change the extension charges from the rate of 4% to any other percent, but it cannot change the amount on which the said charges is payable. The reviewed extension charges will be payable on the premium of lease deed and not on the current rate of the plot.
21. It is further argued that once the extension upto 20.12.2017 was granted to the Original Allottee, as such, the demand of extension charges from 9.11.2016 till 20.12.2017 is wholly illegal. Further the petitioner has submitted the application on completion of construction for issuance of completion certificate was filed on 30.8.2020, as such, he is not liable to pay any extension charges from 1.9.2020.
22. The petitioner has further relied upon a judgment of this Court, namely Writ Petition No. 28968 of 2018: M/s Shakuntala Ednal & Welfare Society Vs. State of Uttar Pradesh & others, in which it has been held that extension charges should be determined according to Clause 8(c) of the lease deed, not according to policy of NOIDA. The petitioner has also relied upon a judgment reported in SCC Online ALL 293; Amitabh Jalan, Managing Trustee & Executor K.D. Jalan Trust Vs. State of U.P. through Secretary & another, whereby this Court established that delay penalties should be based on a percentage of the total premium of the plot, not the current rate.
23. A counter affidavit has been filed by the counsel for the respondent no. 3. In the counter affidavit, the fact regarding initial allotment, lease deed, memorandum of transfer and transfer deed is admitted, however, it is stated that according to the provision of both, ie, the lease deed and the memorandum of transfer, the petitioner is liable to pay extension charges on the current premium rate. The current premium rate including location charges is Rs.67,59,81,596/-and the petitioner is liable to pay extension charges @ 4% on the said amount. The learned counsel for the respondent no. 3 has further argued that Clause 24(ii) empowered the Chairman or Chief Executive Officer of NOIDA to amend, alter, add or modify the lease deed, as they deem fit.
24. It is admitted that the extension charges of Rs.2,39,17,500/-was paid for extension from 21.12.2012 to 20.12.2017. but after execution of the memorandum of transfer, the extension charges are payable on the current premium of plot. It is further argued by the learned counsel for the respondent no. 3 that the development authority has calculated and is charging extension charges as per the prevailing policy and in accordance with the terms of the lease deed and memorandum of transfer, as such, the petitioner is liable to pay extension charges based on current allotment rate.
25. Heard learned counsels for the parties and perused the records.
26. It is admitted that the Original Allottee was granted extension from 21.12.2012 to 20.12.2017 by order dated 26.10.2015 on payment of extension charges of Rs.2,39,17,500/-. The memorandum of transfer dated 9.11.2015 was issued by the NOIDA and accordingly the transfer deed was executed on 1.8.2016. The petitioner applied for extension by letter dated 17.4.2018 and 4.9.2020 and made payment of extension charges @ 4% of premium of lease deed, i.e. Rs.11,95,83,968/-. The NOIDA had made demand for extension charges for the period 9.11.2016 to 8.12.2018 @ 4% on current allotment rate and has calculated the balance of Rs.5,15,48,300/-. For the period 21.12.2018 to 20.10.2020, including graced period of 6 months of Covid-19, the petitioner has applied for extension and deposited a sum of Rs.75,25,818/- including GST, however, the NOIDA had demanded Rs.11,88,69,503/- + GST towards extension charges.
27. Thus, the only controversy is with regard to the calculation of extension charges. The controversy is that the extension charges are payable on the lease premium or current premium rate + location charges.
28. It is not disputed that under Clause 8(c) of the lease deed dated 10.12.2009, it is specifically mentioned that the extension charges @ 4% of premium would be chargeable for grant of extension for each year on pro-rata basis, i.e. 1.3% of premium shall be payable for each month. As per said condition, the rate of extension charges as mentioned in the said clause may be reviewed by lessor at any time, without prior notice and in case, the extension is not granted, the power of cancellation may be exercised by the NOIDA with revocation of the lease deed and forfeiture of the amount as per the prevailing policy of the lessor.
29. The petitioner has also relied upon Clause H-3 of the policy and procedure for Institutional Property Management. March 2009 of the development authority, which is as under:
"H-3, in the event of an extension charges @ 4% of the premium would be chargeable for grant of extension for each year or part thereof. The extension charges can also be paid on pro-rate monthly basis. The rate of extension charges as mentioned above may be revised by the NOIDA."
30. Thus, clause 8(c) of the lease deed and Clause H-3 of the Institutional Property Management are similarly worded. The counsel for the respondent has brought on record the annexure CA-1, stating therein that the NOIDA has framed policy of charging for time extension charges, based on current sector rate.
31. The counsel for the petitioner has argued that the documents relied by the respondents is not policy decision, but it is merely an internal departmental communication proposing practice to be adopted by the NOIDA for extension charges of Institutional plots. The counsel for the petitioner has pointed out that the said document has been signed by the different officers of the NOIDA between 23.10.2020 to 2.11.2020, whereas the application for extension of time was filed by the petitioner on 17.4.2018 & 4.9.2020, as such, the said annexure CA-1 is not applicable in the case of the petitioner and the policy prevailing on the date of application are applicable.
32. Having heard learned counsel for the respondent on annexure CA-1, it is apparently clear that the said annexure CA-1 is not record of policy decision taken by the NOIDA for extension charges. The said document contains signature of various officers and their views with regard to the extension charges. The said document, nowhere contains any approval by the Board with regard to the extension charges. There is no order of Chairman or Chief Executive Officer in the said document, fixing extension charges, as such, on the basis of the said documents, the respondents cannot claim extension charges as per their demand, moreover, these documents are also not applicable in the case of the petitioner, as the extension was prayed on 17.4.2018 & 4.9.2020 and on the said dates, these documents were not available.
33. The counsel for the respondent no. 3 has further relied upon in clause 2 of the memorandum of transfer dated 9.11.2015 and has argued that in the said clause, it refers to total premium of the plot at current allotment rate + location charges. The stand taken by the counsel for the respondent no. 3 is wholly devoid of merit. Clause 2 of the memorandum of transfer reads as under:
"2. The transferee shall be liable to pay from the date of issue of this transfer memorandum the annual lease rent 2.5% of the total premium of the plat at current allotment rate + location charges.
The lease rent shall be subject to enhancement after every 10 years.
One time lease rent has been paid as per N.D.C. of AO (INSTT.), Noida dated 23.10.2015."
34. Reading of aforesaid clause, clearly established that the said clause specifically refers annual lease rent and did not contain the fixation of any extension charges. The calculation of annual lease rent and extension charges are all together different.
35. As already held that clause 8(c) of the lease deed empowered the NOIDA to review the percentage of extension charges, but cannot review the amount on which the extension charges are payable. The said view is also affirmed with condition No. 2 of the transfer deed. As the percentage of annual lease rent on premium of plot at current allotment rate + location charges was to be charged, the said fact was clearly mentioned in the memorandum of transfer. Would the NOIDA intended to review or change, the basis for charging of extension charges, the same should have been clearly mentioned in the memorandum of transfer, as has been done in case of lease rent. Thus, it is held that charging of extension charges on the basis of current allotment rate + location charges is illegal and is hereby quashed. The other controversy is with regard to period for which extension charges are payable by the petitioner.
36. The respondent no. 3, in paragraphs 5 & 7 of the counter affidavit has admitted that the Original Allottee was granted extension for the period from 21.12.2012 to 20.12.2017. There is no document or averment in the counter affidavit to establish that the time extension granted to the Original Allottee till 20.12.2017 was revoked. As the transfer of plot as per the memorandum of transfer to the petitioner was along with all rights and liability to the petitioner, the time extension till 20.12.2017 will also pass to the petitioner and the petitioner is not liable to pay any extension charges till 20.12.2017.
37. It is also not disputed that the petitioner has applied for grant of completion certificate on 30.8.2020, after completing of the construction and the petitioner has also applied for extension from 21.12.2018 to 20.10.2020 with payment of Rs.63,77,812/-CGST & SGST, The said amount was calculated on the basis of premium in the lease deed. The argument of learned counsel for the petitioner that once the construction was completed and application for grant of completion certificate was submitted to the NOIDA, there is no requirement of time extension after 30.8.2020 and the demand raised by the NOIDA for extension charges upto 8.8.2021 is illegal.
38. The respondent has not brought on record any material on record to establish that the construction was carried on by the petitioner, even after submission of application for grant of completion certificate. The application of the petitioner for grant of completion certificate was not rejected on the ground that the construction was not complete. The respondent no. 3 cannot take benefit of own delayed decision of issuing completion certificate and thus, the petitioner is also not liable to pay any extension charges, after submission of application for issuance of completion certificate i.e. 30.8.2020.
39. The Hon'ble Division Bench of this Court in Amitabh Jalan and Ors. Vs. State of U.P. and Ors, 2014 SCC Online All 293 while dealing with the base on which the delay penalty/extension charges should be calculated by the Greater Noida Industrial Development Authority, held-
26. As noted above, as per Clause 23(b) 4%, 6% or 8% has to be taken of the total premium of the plot. Thus, various percentage as delay penalty is to be found out on the basis of fatal premium of the plot i.e. amount of Rs. 4,27,500/-. The delay penalty for the plot cannot be arrived by taking the current price of the plot. The clause contemplates fixation of delay penalty on the basis of the premium of the plot. The computation made by the authority thus cannot be treated to be in accordance with the clause 23(b) and is nothing but an arbitrary exercise of power."
40. Reiterating the law laid down in Amitabh Jalan's case, again the Hon'ble Division Bench of this Court in Dhirendra Pandey v. State Of U.P And Anr. S. 2014 SCC ONLINE ALL 297 held-
"The submission which has been made by the learned counsel for the petitioner is that inspite of petitioner submitting an application seeking information under the Right to Information Act proper information was not provided. He further submits that the State Government has not correctly calculated the delay penalty according to clause 23(c) of the lease deed. He submits that delay penalty was chargeable on amount of total premium of plot and the current market rate of the plot was not relevant. We have perused the order of the State Government dated 4.4.2013 deciding the petitioner's representation raising objection regarding the calculation of delay penalty. A perusal of the order indicates that in first 3 years, the delay penalty has been calculated on the rate on which allotment was made and for subsequent years the current market value of the land was taken for determining the delay penalty.
The similar issue came before us for consideration in writ petition no. 17989 of 2013 (Amitabh Jalan. Managing Trustee & Executor K.D. Jalan Trust Vs. State of U.P. And another). For the reasons given by our judgment and order of date in aforesaid writ petition, we are of the view that the order of the State Government deserves to be set aside with a direction to respondent no.2 to redetermine the delay penalty payable by the petitioner.
In result, the writ petition is allowed in following manner:
(i) The order dated 4.4.2013 is quashed,
(ii) The respondent no.2 shall determine the delay penalty afresh payable by the petitioner keeping in view of the judgment and order of date passed in writ petition no. 17989 of 2013.
(iii) The respondent no.2 shall take appropriate decision within a period of two months from the date a certified copy of this order is produced before respondent no.2 and communicate the sarne to the petitioner.
(iv) The petitioner having already deposited the entire amount as delay penalty under protest, in event it is found that petitioner's deposit is in excess of the amount, respondent no.2 shall make appropriate refund to the petitioner. No order as to costs."
41. In view of the above, the order dated 15.1.2021 passed by the respondent no. 2 and orders dated 25.5.2018 & 3.9.2020 passed by the respondent nos. 3 & 4 raising demand of extension charges are hereby quashed. Further a writ of mandamus is issued to the respondent nos. 3 & 4 to calculate extension charges as per Clause 8(c) of the lease deed dated 10.12.2009 on premium mentioned in the lease deed for the period 21.12.2017 to 20.10.2020. While calculating the amount of extension, the relief of Covid-19 be granted. Since the petitioner has deposited sum of Rs.3 crores, in pursuance of the order of this Court, the excess amount deposited by the petitioner be refunded to him within a period of 1 month, from the date of re-calculation of the extension charges, as directed above. Re-calculation be completed within 3 weeks from the date of filing of certified copy of the order. The petitioner will be entitled for the interest @ 6% on the excess amount deposited by the petitioner, in the case, the aforesaid exercise is not completed and refund is not paid to the petitioner within time mentioned above. The writ petition is allowed in terms mentioned above. No order as to costs.
(Prakash Padia,J.)
October 31, 2025
saqlain
