Sunil Ambwani , Aditya Nath Mittal, JJ. - (1.) WE have heard Shri Ravi Kant, Sr. Advocate assisted by Shri Santosh Kumar Tripathi, learned Counsel for the petitioner. Shri Nisheeth Yadav appears for the respondent authorities. Learned Standing Counsel represents the respondents. The petitioner is a public limited company engaged in the business of real estate development, with its registered office at Parsvnath Metro Tower near Shahdara Metro Station, Shahdara, Delhi.
(2.) BY this writ petition the petitioner has prayed for a writ of certiorari to quash the order dated 16.2.2012 passed by the Secretary, Urban and Town Planning Development, Government of U.P., Lucknow, and the orders dated 15.9.2011 and 17.3.2011 passed by the Greater Noida Industrial Development Authority (GNIDA) through its Chief Executive Officer. The petitioner has also prayed for directing the Chief Executive Officer, (GNIDA) to register the lease deed of plot No. SLC -8/G in Sector Delta -II, Greater Noida. The petitioner had earlier filed the Writ Petition No. 69184 of 2010, M/s. Parsvnath Developers Ltd. v. Greater Noida Industrial Development Authority & Anr. challenging the order/letter dated 15.9.2010 issued by the GNIDA imposing penalty upon the petitioner to the tune of Rs. 8,40,25,980/ - for failing to get the lease deed executed by 22.10.2008, and also 2% additional late fees in case of further delay after 21.10.2010, as well as the cancellation notice dated 17.3.2011 issued by GNIDA. The petitioner had also sought a direction for registration of the lease deed in favour of the petitioner.
(3.) BRIEF facts giving rise to the earlier writ petition as detailed in the judgment of this Court dated 6.9.2011 by which the petitioner was directed to make an appropriate application to the State Government under Section 41(3) of the U.P. Urban Planning and Development Act, 1973 (the Act), within 15 days from the date of obtaining certified copy of the order, and if that was done the State Government was directed to give fullest opportunity of hearing and to pass appropriate orders within three months, thereafter. The Court passed an order that till the date of communication of the decision to be taken by the State Government, no effect or further effect in respect of imposition of penalty/administrative charge/late fees will be given are quoted as below: - 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 23.11.2007 the authority accepted the petitioner's letter of offer and reserved Plot No. SLC -8/G in Sector Delta -II, 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 20.12.2007. The authority issued allotment letter dated 4.3.2008 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. 4.3.2008. By such allotment Letter the authority also informed the liability of the petitioner to pay the balance amount in installments in accordance with the schedule mentioned in the letter. On 4.6.2008 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 24.6.2008 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 14.7.2008 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 24.7.2008 again wrote to the General Manager (Planning) requesting for issuance of lease plan. Ultimately, in August, 2008 petitioner received the lease plan. On 10.9.2008 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 22.9.2008 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. 22.9.2008. However, the petitioner was unable to make the payment of installments on account of severe financial crunch arose as a sequel to the global recession. On 17.11.2008 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 22.9.2008. To such notice, the petitioner gave its reply on 24.11.2008 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 6.1.2009 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 12.2.2009 laid down a detailed procedure to implement the said policy. Thereafter, the petitioner by its letter dated 9.3.2009 sought from the authority a revised schedule of payment consistent with the said policy. Again on 21.3.2009, petitioner requested the authority for rescheduling of premium instalments and lease rental instalments, issuance of "No Dues Certificate" and draft of lease deed. On 14.3.2009 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 25.10.2009 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 3.12.2009 requested the authority for rescheduling of instalments and the moratorium of two years, and the authority vide its letter dated 17.5.2010 allowed rescheduled instalments to the petitioner. On 9.7.2010 the petitioner asked the authority to send a copy of the lease deed, so that lease may be got registered. Again on 28.7.2010 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 15.9.2010 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 22.10.2008 i.e. within one month from the date of issue of check list (22.9.2008) and directed the petitioner to get the lease deed registered by 21.10.2010 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. After filing of the writ petition, on 24.3.2011 the petitioner was served with a cancellation notice dated 17.3.2011 issued by the authority, which has also been challenged in this writ petition by way of amendment of the writ petition.;