Uniplas India Ltd. and Another vs New Okhla Industrial Development Authority and Others

Lakshmi Bihari, J.—Heard Shri Anil Sharma, the learned counsel appearing for the petitioners and Shri U. S. Awasthi, the learned counsel representing the respondent Nos. 1 to 4.

The petitioners have approached this Court through this petition under Article 226 of the Constitution of India, with the following prayers :

"(a) Issue a writ or writs in the nature of certiorari or such other writ, order or direction as may be considered appropriate to quash and set aside the purported cancellation of the allotment of plots B-208 and 209, Phase 11, NOIDA, district Ghaziabad, (U. P.) uide letter dated 30th March. 1994 (Annexure-XlX hereto) and purported forfeiture of the amount paid by the petitioner company by the said letter and declare that the allotment made in favour of the petitioner company shall stand.

(b) Issue a writ or writs in the nature of mandamus or such other writ, order or direction directing the respondents to attend to the matters complained of by the petitioners in the various letters (Annexures-XII, XIII, XIV and XV hereto) and ensure that the plot of land B-208 and 209, Phase M. NOIDA, district Ghaziabad, is available to the petitioner company free of all claims, interference, encumbrances, used by the neighbouring villages and other problems.

(c) Issue a writ or writs in the nature of mandamus or such other writ, order or direction to the respondents to reschedule the payment of the balance amount due from the date when the petitioner is put in possession of the land free of all claims, interference, incumbrances, used by the neighbouring villages and other problems.

(d) Issue a writ or writs in the nature of mandamus or such other writ, order or direction to the respondents to pay compensation to the petitioner company for the loss arid prejudice caused to him on account of the failure of the NOIDA authorities in ensuring that the petitioner company has the land free of all claims etc. mentioned above.

(e) Award cost of the petition."

The petitioners were allotted plot Nos. B 208 and 209 by the respondents vide allotment letter dated 30.7.1990. On 30.8.1990, a lease deed was executed between the parties, a copy whereof is Annexure-IX to the petition. Thereafter the respondents cancelled the said allotment on the ground that the petitioners have neither implemented the approved project nor complied payment schedule as per terms of the registered lease deed. A copy of the letter dated 30.3.1994 cancelling the allotment is Annexure-XlX to the petition. Aggrieved, the petitioners have filed the instant petition.

The question to be determined in the instant petition is whether in the facts and circumstances of the case, the respondents were legally justified in cancelling the lease deed dated 30.8.1990.

In order to examine the aforesaid question, it is relevant to refer to the following clauses of the said lease deed.

Clause (2) (a)

"The lessee shall pay to the lessor the provisional premium of Rs. 1,02,00.000 (rupees one crore two lacs only). Rs. 30,60,000 (rupees thirty lacs sixty thousand only) out of which has already been paid the receipt whereof the lessor hereby acknowledges and the balance sum of Rs. 71,40,000 (rupees seventy one lacs forty thousand only) shall be paid in ten half yearly instalments along with interest @ 17% per annum from the date of issue of allotment letter the interest to be compounded half yearly the first instalment falling due for payment on the 30th day of June or the 31st day of December, which ever falling earlier after the expiry of the period of six months next to the date of allotment of the demised premises and the remaining falling due consecutively as follows ............"

Clause (2) (c)

"If lessee makes default in payment of premium and interest for three consecutive instalments, the lessor shall have a right to determine the lease and to resume possession."

Clause (IV) (1)

"If there shall have been in the opinion of the lessor any breach by the lessee or by any person claiming under him of any of the covenants or conditions herein contained........................

it shall be lawful for the lessor without prejudice to any other right of action of the lessor in respect of any breach of this deed to re-enter upon the demised premises or any part thereof in the name of the whole and thereupon this demise shall absolutely cease and determine and out of the moneys paid by the lessee by virtue of these presents, such amount as prescribed by competent authority shall stand forfeited to the lessor and balance. If any, shall be refunded to lessee without any interest.

Clause (IV) (8) (iii)

"If the lessee does not abide by the terms and conditions and building rules or any other Rules framed by the authority, the lease may be cancelled by the lessor and the possession of the demised premised may be taken over by the lessor. And the lessee in such an event will not be entitled to claim any compensation in respect thereof."

The above clauses make it clear that in the event of nonpayment of instalments, the respondents could cancel the lease, forfeit the amount and resume possession.

In the instant case, it is admitted that the petitioners have not paid the instalments as required by the lease deed dated 30.8.1990. The argument of the learned counsel for the petitioners is that although the instalments have not been paid by the petitioners, the respondents were not justified in cancelling the lease as there was variance in the area of the plots allotted to the petitioners and also villagers have encroached upon the plots and in this connection, he has referred to the letters sent by the respondents to the authorities concerned (Annexures-XIl to XV). Firstly, it may be pointed out that in the two possession certificates dated 7.9.1990 (Annexure-Xl), signed on behalf of the petitioners relating to the plot Nos. 208 and 209, it was mentioned that the possession of the plots has been taken over and that the petitioners have satisfied themselves with the measurement, demarcation and area of the plots and that the plots were free from encroachment. Secondly, the learned counsel for the petitioners has failed to point out any clause in the lease deed dated 30.8.1990. authorising the petitioners to withhold the payment of the instalments on any of the grounds taken by the petitioners. Thus, there is no force in the argument of the learned counsel for the petitioners.

The learned counsel for the petitioners next submitted that the respondents were not justified in cancelling the lease as no such power exists in Section 13 of the Uttar Pradesh Industrial Area Development Act. 1976 (for short, the Act), which provides for imposition of penalty and mode of recovery of arrears. The learned counsel for the petitioners in support of his contention has placed reliance on the judgment of this Court rendered in Lt. Co). Balraj Chhibbar and Ors. v. NOIDA and Ors. 1995 AWC 1250.

Section 13 of the Act runs as follows :

"13. Imposition of penalty and mode of recovery of arrears. --Where any transferee makes any default in the payment of any consideration money or instalment thereof or any other amount due on account of the transfer of any site or building by the authority or any rent due to the authority in respect of any lease, or where any transferee or occupier makes any default in the payment of any fee or tax levied under this Act, the Chief Executive Officer may direct that in addition to the amount of arrears, a further sum not exceeding that amount shall be recovered from the transferee or occupier, as the case may be. by way of penalty."

It is, no doubt, true that the aforesaid section provides only for imposition of penalty and mode of recovery of arrears and not for resumption and forfeiture. But, the power of resumption and forfeiture in the event of non-payment of consideration money or any instalment thereof or any breach of any condition of transfer has been given in Section 14 of the Act, which runs as follows :

"14. Forfeiture for breach of conditions of transfer.--(1) in the case of non-payment of consideration money or any instalment thereof on account of the transfer by the authority of any site or building or In case of any breach of any condition of such transfer or breach of any Rule or Regulations made under this Act, the Chief Executive Officer may resume the site or building so transferred and may further forfeit the whole or any part of the money if any paid in respect thereof.

(2) Where the Chief Executive Officer orders resumption of any site or building under Sub-section (1) the Collector may, on his requisition, cause possession thereof to be delivered to him and may for that purpose use or cause to be used such force as may be necessary."

Thus. in view of the provisions of Section 14 of the Act, the respondent could resume the possession and forfeit the amount.

In the judgment on which the learned counsel for the petitioners has placed reliance, the facts were that in 1976-77. the land belonging to a registered society was acquired by the NOIDA which was challenged by the society and the matter was settled between the society and NOIDA. according to which only those members of the society were to be given plots by NOIDA who were bona fide members as on 1.5.1976. The society submitted a list of 1088 members who were bona fide members on the cut-of-date, i.e.. 1.5.1976. Those members deposited 20% of the cost of the land and they also paid the instalment. Subsequently, a dispute arose regarding allotment of plots to 142 members who acquired membership after 1.5.1976. The question whether lease could be cancelled on account of non-payment of instalment was not involved in that case. Thus, the facts and the controversy involved in that case were different and as such, the reliance on the said judgment by the learned counsel for the petitioners is misplaced and the said judgment is of no help to the petitioners.

It is, therefore, clear that the respondents were legally justified in cancelling the lease deed in question. The impugned order dated 30.3.1994 is perfect and needs no interference. Thus, the petitioners are not entitled to the reliefs claimed.

In view of the discussions made above, the petition lacks merit and deserves to be dismissed.

The petition is, accordingly. dismissed with costs.