High Court
Case Details
Neutral Citation No. - 2023:AHC:220647-DB Chief Justice's Court Case :- WRIT - C No. - 33933 of 2021 Petitioner :- M/S Shirja Real Estate Solutions Pvt. Ltd. Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kunal Shah,Suvansit Kumar Jaiswal Counsel for Respondent :- C.S.C.,Anjali Upadhya Hon'ble Pritinker Diwaker,Chief Justice Hon'ble Ashutosh Srivastava,J. 1. Heard Shri Kunal Shah, learned counsel for the petitioner, learned Standing Counsel representing the State and Shri M. C. Chaturvedi, learned Senior Counsel assisted by Ms. Anjali Upadhyay, learned counsel for the respondent-Development Authority. 2. The present writ petition has been filed assailing the order dated 30.7.2020 passed by the respondent No. 3, Addl. Chief Executive Officer, GNIDA, rejecting the representation of the petitioner filed
Legal Reasoning
pursuant to orders of this Court in Writ-C No. 35014 of 2019 for grant of "Zero Period". It has been further prayed to reschedule the balance premium amount payable to GNIDA after extending the benefit of "Zero Period" to the petitioner. Several other prayers
Decision
have been made in the writ petition. 3. Learned counsel for the petitioner contended that company is into business of Real Estate Development. It purchases plots and constructs flats in accordance with the Group Housing Scheme on those plots and sell the flats. The petitioner was allotted group housing plot No. GH-03 C, Sector 10, Greater NOIDA ad- measuring 20,000 square meter in favour of the petitioner @ Rs.24,200/- per square meter. The total premium of the allotted plot is Rs.48,40,00,000/-. The petitioner deposited 20% of the total premium and balance 80% was to be deposited in 16 half yearly instalments. The lease deed was executed on 30.6.2015. It has been further contended that GNIDA had given symbolic / paper possession of the plot but since the farmers were farming on the said plot, the GNIDA was unable to handover the actual possession of the said plot to the petitioner company. The petitioner filed several representations for handing over the actual physical possession. The petitioner moved a letter dated 24.10.2016 before the GNIDA for approval of map and aforesaid sanction of building plan was granted by the Authority vide letter dated 13.01.2017. 4. It is further submitted that the petitioner was restrained by the farmers from starting the constructions further on the plot assign board of GAIL high pressure gas pipeline existed and it was discovered that 18th Dadri Desu Line High Pressure Gas Pipeline was passing under the said plot area. This fact was not disclosed by the respondents to the petitioner. On coming to know of the said fact, the petitioner moved a representation to the GNIDA informing about the GAIL High Pressure Gas Pipeline and requested the GNIDA for shifting of the Gas Pipeline so that the petitioner could start his construction activities. It further came to like that the area of the petitioner's plot was reduced by 1620 square meter in the year 2015 itself due to the pipeline and the intimation of the aforesaid had also been made by the Planning Department to the Building Department in the year 2015 by a communique. 5. It is further submitted that the petitioner represented before the GNIDA by its representation dated 14.11.2017 and 29.3.2018 seeking several reliefs including handing over of the actual possession; correct and modified lease deed to be executed in favour of the petitioner; the difference of amount of stamp duty paid in regards to earlier plots ad-measuring 20,000 square meters and the actual area available on the spot be adjusted in the premium amount to be paid by the petitioner. The respondent Development Authority without adverting to the contentious issues only intimated the petitioner regarding the execution of the corrected lease deed. After great deliberations, the actual physical possession of the plot was given only on 8.3.2019. However, even thereafter the villagers continued to create disturbance in the construction over the plot in question. In such circumstances, the petitioner wrote a letter dated 10.5.2019 to the GNIDA, who in turn, requested the SHO, Police Station Ecotech-III, Greater Noida to provide the police on the plot on 15.5.2019 to mediate and resolve the issue with the farmers. It appears that a modified payment schedule was issued on 10.7.2018. 6. It is contended that when the grievance of the petitioner was not attended by the respondent Development Authority, the petitioner was constraint to approach this Court by means of writ petition being Writ-C No. 35014 of 2019 seeking several reliefs. The writ petition was disposed of vide order dated 28.11.2019 with the direction permitting the petitioner to file a comprehensive representation before the respondent No. 3 ventilating all its grievances and enclosing all the relevant documents in support of its case and the same shall be decided by the respondent No. 3 after giving opportunity of hearing to the petitioner by reasoned and speaking order. Pursuant thereto, the petitioner filed a detailed representation dated 11.12.2019 and 26.1.2020, which came to be rejected vide order 30.7.2020 impugned in the writ petition. 7. The petitioner has placed reliance upon judgment and order rendered by this Court in case of M/s Gaursons India Ltd. Versus State of U.P. and 3 others, in Writ-C No. 8018 of 2022 involving similar questions of fact and submitted that the denial of the benefit of “Zero Period” as claimed by the petitioner is unjustified, particularly, in view of the fact that in similar circumstances, the benefit was extended to the writ petitioner of M/s Gaursons India Ltd. (supra), but the petitioner has been denied the benefit. 8. The respondent Development Authority has refuted the averments made in the writ petition by filing counter affidavit and asserted that the petitioner Consortium consisted of M/s Right Realtech Pvt. Ltd. as a lead member M/s Kinetic Buildtech Pvt. Ltd. and M/s Gaursons India Ltd and petitioner as the Consortium member and was allotted Plot No. GH-03, Sector 10 under the BRS-01/2014-15 for the Development of Group Housing/Builder Residential Plot ad-measuring area 64,000 square meter. On the request of the lead member M/s Right Realtech Pvt. Ltd., vide letter dated 10.9.2014, the plot was sub divided and the petitioner was allocated 20,000 square meters. The sub lease of the sub divided area plot No. GH-03C, Sector 10 with an area of 20,000 square meter was executed on 29.6.2015 and possession letter was issued on 15.6.2015. It was found that the Gas Line was passing under the plot of the allottee due to which, the area was reduced from 20,000 square meters to 18,380 square meters and the corrected lease deed was executed on 4.10.2018. It has been further averred that according to the lease deed, the lessee is required to submit building plan together with the master plan showing the phases for the execution of the project for approval within six months from the date of possession and shall start construction within 12 months from the date of possession.The payment plan for the reduced area was revised along with the connected lease deed. It is submitted that when the payment plan was revised, the Zero Period Committee has also taken into account that neither the project / map has been submitted for approval / sanction by the petitioner nor any development work has been done on the spot in question. Therefore, the benefit of “Zero Period” was not given to the petitioner under the existing rules. The recommendations of the Zero Period Committee has been approved by the 111th Board Meeting on 1.2.2018 and the allottee was informed vide letter dated 22.3.2018 about the fact that he is not entitled for the benefit of Zero Period. In this back drop, it has been submitted by learned counsel for the Development Authority that the petitioner failed to adhere to the terms and conditions provided in the lease deed and hence, the benefit of Zero Period could not be extended to him and accordingly, other benefits prayed for could not be given and supported the impugned order passed by the respondent No. 3. 9. We have heard learned counsel for the parties and perused the record. 10. From the perusal of the record, this Court finds that the land was bifurcated and lease deed was executed to the petitioner for an area of 20,000 square meters. However, at the time of execution of the lease deed it was not within the knowledge either of the petitioner or the respondent Development Authority that a gas pipeline is passing through the area and on coming to know of the said fact, the leased area was reduced by 1620 square meters and the corrected lease deed ad-measuring area 18,380 square meters was executed on 4.10.2018. Though it has been averred by the respondent Development Authority that possession letter was issued on 30.6.2015, but the construction clause of the lease deed itself says that “Date of execution of lease deed shall be treated as date of possession”, meaning thereby that the date of possession cannot be prior to 4.10.2018. This Court further finds that the Authority itself on the application 10.5.2019 of the petitioner has requested the SHO, Police Station Echotech-III, Greater Noida to provide police force on the site to resolve the issue. 11. Considering the facts and circumstances of the case, this Court finds that the petitioner is entitled for grant of benefit of “Zero Period” from the date of allotment i.e. 29.6.2015 till 8.3.2019, which is an admitted fact by both the parties that with the help of police force the petitioner was given the possession of the plot. Accordingly, the writ petition is allowed. The order dated 30.7.2020 passed by the respondent No. 3, Addl. Chief Executive Officer, Greater Noida is hereby set aside. The petitioner is entitled for grant of benefit of “Zero Period” from the date of allotment i.e. 29.6.2015 till 8.3.2019. The respondents are further directed not to charge penal interest/premium amount and lease rent in respect of the area of the plot for the aforesaid period i.e. 29.6.2015 till 8.3.2019. Order Date :- 10.10.2023 Ravi Prakash/RK (Ashutosh Srivastava, J.) (Pritinker Diwaker, CJ) Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad