Hon'ble Amitava Lala, J. - (1.) BY means of this writ petition, the petitioner has challenged the impugned order/letter dated 15th September, 2010 issued by the respondent No. 1 - Greater Noida Industrial Development Authority (hereinafter in short called as the "authority') imposing penalty (late fees) upon the petitioner to a tune of Rs. 8,40,25,980/- for not getting the lease-deed executed by 22nd October, 2008 and also 2% additional late fees in case of further delay after 21 st October, 2010, as well as cancellation notice dated 17th March, 2011 issued by the authority. The petitioner further seeks direction upon the authority to register the lease-deed of the petitioner.
(2.) BRIEFLY stated facts giving rise to the present writ petition, according to the petitioner, are that the Greater Noida Industrial Development Authority constituted under Section 3 of the Uttar Pradesh Industrial Area Development Act, 1976 (hereinafter in short called as the "Act") comes within the definition of the "State' as per Article 12 of the Constitution of India. In July, 2007 the authority invited sealed offers for allotment of commercial plots on ninety years' lease basis under Commercial Plot Scheme, CPS-02/07, pursuant to which the petitioner participated in the tender process. On 23rd November, 2007 the authority accepted the petitioner's letter of offer and reserved Plot No. SLC-8/G in Sector Delta-ll, Greater Noida and called upon the petitioner to deposit a sum of Rs. 3,79,45,520/-, as reservation-cum-acceptance money being 10% of total premium plus Rs. 2,00,00,000/- already deposited, within thirty days, which the petitioner deposited on 20th December, 2007. The authority issued allotment letter dated 04th March, 2008 to the petitioner informing that a plot measuring 18,632 square meters has been allotted to it and demanded a further sum of Rs. 11,58,91,040/-, being 20% of the total premium, within three months from the date of such letter i.e. 4th March, 2008. By such allotment letter the authority also informed the liability of the petitioner to pay the balance amount in instalments in accordance with the schedule mentioned in the letter. On 04th June, 2008 petitioner deposited such amount of Rs. 11,58,91,040/- and requested the authority to release the lease plan and check list, so that the petitioner may take steps to get the lease-deed registered. Inviting attention to such letter of the petitioner, on 24th June, 2008 Commercial Manager of the authority wrote to General Manager (Planning) of the authority that lease plan has not been received in the Property Section and requested for making the said lease plan available expeditiously. Petitioner again by its letter dated 14th July, 2008 requested the authority to issue lease plan and check list to enable it to get the lease-deed executed, with reference to which Commercial Manager of the authority on 24th July, 2008 again wrote to the General Manager (Planning) requesting for issuance of lease plan. Ultimately, in August, 2008 petitioner received the lease plan. On 10th September, 2008 the authority intimated the petitioner that area of the plot had got reduced from 18632 square meters to 18012 square meters and accordingly, the payment plan has been altered. Thereafter, by letter dated 22nd September, 2008 the authority again informed the petitioner that since area of the allotted plot has been reduced, now the total cost of the plot will be Rs. 56,01,73,200/- and further called upon the petitioner to get the lease deed executed/registered within thirty days from the date of such letter i.e. 22nd September, 2008. However, the petitioner was unable to make the payment of instalments on account of severe financial crunch arose as a sequel to the global recession. On 17th November, 2008 the authority issued a notice to the petitioner to show-cause as to why allotment be not cancelled for not getting the lease deed registered within thirty days of letter dated 22nd September, 2008. To such notice, the petitioner gave its reply on 24th November, 2008 pointing out the delay on the part of the authority in giving lease plan and requesting for extension of time upto December, 2008 to get the lease deed registered. Subsequently, to combat the situation arose out of global recession, on 06th January, 2009 the Government of Uttar Pradesh framed a policy decision, whereby the Government sought to mitigate the burden of Real Estate Sector, which had been severely hit by global recession, and made certain concessions to those Real Estate Developers, who had defaulted in payment of instalments on account of recession. Pursuant to such policy, the authority by its office-order dated 12th February, 2009 laid down a detailed procedure to implement the said policy. Thereafter, the petitioner by its letter dated 09th March, 2009 sought from the authority a revised schedule of payment consistent with the said policy. Again on 21 st March, 2009, petitioner requested the authority for rescheduling of premium instalments and lease rental instalments, issuance of "No Dues Certificate' and draft of lease deed. On 14th May, 2009 the petitioner formally applied in the prescribed format for rescheduling of the instalments as per new policy and the procedure laid down therein. The Government of Uttar Pradesh amended the aforesaid policy on 25th October, 2009 and provided inter alia for a moratorium of two years towards payment of balance instalments. In the light of such amendment of policy, the petitioner by means of its letter dated 03rd December, 2009 requested the authority for re-scheduling of instalments and the moratorium of two years, and the authority vide its letter dated 17th May, 2010 allowed rescheduled instalments to the petitioner. On 09th July, 2010 the petitioner asked the authority to send a copy of the lease deed, so that lease may be got registered. Again on 28th July, 2010 the petitioner wrote to the authority asking information with regard to total outstanding payments due alongwith the check list to enable it to get the lease deed registered. However, the authority by the impugned letter/order dated 15th September, 2010 imposed the penalty (late fee) to a tune of Rs. 8,40,25,980/ - upon the petitioner for not getting the lease deed registered by 22nd October, 2008 i.e. within one month from the date of issue of check list (22nd September, 2008) and directed the petitioner to get the lease deed registered by 21 st October, 2010 upon depositing such amount and also directed that in case of further default in registration thereof, the petitioner will be liable to pay an additional penalty (late fees) @ 2% per month on the total premium.
(3.) AFTER filing of the writ petition, on 24th March, 2011 the petitioner was served with a cancellation notice dated 17th March, 2011 issued by the authority, which has also been challenged in this writ petition by way of amendment of the writ petition. In the aforesaid factual background, the petitioner has challenged the order impugned by saying that initially delay was on the part of the authority in providing the draft lease deed and check list to the petitioner, whereas subsequently the petitioner was unable to pay the instalments and to get the "No Dues Certificate', which is a pre-requisite for getting the lease deed registered. In further, when by virtue of policy of the State Government dated 06th January, 2009, as amended on 25th September, 2010, the terms and conditions of the original contract was changed by granting two years' moratorium on payment of instalments and rescheduling the payment of instalments, there was novation of contract and, therefore, no action could have been taken under the earlier contract. Moreover, neither the contract stipulates a penal charge at all for the delay in execution of lease deed nor does the Act stipulates any such charge, therefore, the action of the authority in levying the penal charge is ultra vires the Act, without jurisdiction, arbitrary and violative of Article 14 of the Constitution of India. To this extent, placing reliance on Section 7 of the Act, which deals with the power to the authority in respect of transfer of land, the petitioner submitted that no rule or regulation has been framed so far to regulate the said exercise of power by the authority. Hence, the parties are bound by the terms of the contract entered into between them as per the terms and conditions laid down in the notice inviting offers, but none of the conditions of notice stipulates imposition of penalty or late fee or 2% surcharge. That apart, the cancellation notice is also without jurisdiction on account of the fact that the condition relied upon therein does not appear anywhere in the brochure.;