- (1.) HEARD the learned Counsel for the appellant Sri Ashutosh Srivastava and learned Counsel for the respondents Sri Ravi Kant Agrawal, Senior Advocate assisted by Sri J. J. Munir and Sri Shashi Nandan Senior Advocate assisted by Sri A. A. Kazmi on behalf of the newly added respondents.
(2.) THE present appeal has been filed against the judgment and order dated 16-11-2006 passed by Civil Judge, Senior Division, Gautam Budh Nagar in Suit No. 311 of 2006 rejecting the application for ad- interim injunction which was numbered as 6-C-2. The facts arising out of the present appeal are that the appellant M/s. Bagla Advertising Private Limited is a company dealing in various types of roadsides hoardings new signboards, glow signboard etc. The appellant was allotted an L shape plot being Plot No. SH-3 area 18096 Sq. meter, industrial area, Surajapur, Site-4 for setting up a shopping complex-vide allotment letter dated 10-1-2003 issued by Regional Manager, UPSIDC. A copy of the allotment letter dated 10-1-2003 has been annexed as Annexure-1 to the writ petition. The allotment of L-shape plot was subject to approval of Greater Noida. After the allotment of Plot No. SH-3, appellant submitted the building plan before the General Manager (Planning) Greater Noida on 1-7-2003. Under the terms and conditions of the allotment the appellant was required to deposit Rs. 1,12,85,840/- by 7-2-2003. Initially the appellant paid a sum of Rs. 41,41,000/- towards the earnest money and thereafter made other deposits totaling to approximately Rs. 80,00,000. The said plot was surrounded by deep drain on account of which the plot could not be accessed and the appellant was not in a position to make use of the plot. A request to this effect was made to the authority to provide an approach road to the plot and cover the nala but the respondents had given only assurance but did not provide with any approach road over the nala. The respondents have also not obtained necessary approval from Greater Noida for approving the L-shape plot allotted to the appellant without which no building can be constructed. The respondents in a most arbitrary manner proceeded to cancel the allotment of the plot principally on the ground that the appellant has not deposited the requisite amount under the allotment letter. It has further been submitted that no notice and opportunity whatsoever was afforded before canceling the said allotment. The appellant has already deposited a sum of Rs. 80,00,000/- as against Rs. 1,12,85,840. The UPSIDC respondent on the other hand did not perform his part of obligation. In such circumstances, the appellant was justified in not making good the balance amount. In the aforesaid circumstances Suit No. 311/2006 was filed before Civil Judge Senior Division, Gautam Budh Nagar claiming a declaratory decree that cancellation of plot allotted to the appellant is illegal, void, and ineffective. A relief for permanent injunction restraining the respondents authorities with a prayer for not transferring its possession and for granting permission for raising construction and the same may not be allotted to anybody has been made. The said application was numbered as Application No. 6-C-2. The Civil Judge refused to grant an ex parte injunction order and issued a notice vide its order dated 22-5-2006 and fixed 30-5-2006. The respondents authority have put their appearance but delayed the disposal of application for interim injunction on some pretext or the other. They ultimately filed their objections to the interim injunction on the application on 15-9- 2004 stating therein that the aforesaid land has already been allotted in favour of M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. on 5-8-2006. As the application was pending, a writ petition was filed before this Court bearing No. 5677 of 2006 seeking for modification of the order dated 22-5- 2006 refusing to grant injunction. The writ petition was finally disposed of with a direction to decide the interim application on the date fixed or within two weeks but the said application was dismissed vide its order dated 16-11-2006. Aggrieved by the aforesaid order dated 16-11-2006 the appellant has filed the present FAFO stating therein that admittedly the plot was allotted in his favour and about Rs. 80,00,000 were deposited. The rest amount was not deposited only on the basis in view of agreement between the parties, Clause 23 of which clearly states as under: " (23) The request of the bidder to make the Plot No. SH 3 shape maintaining the same area would considered by the Corporation favourably in due course. However, since this would necessitate swapping of land of Park No. 3 with the land of Plot No. SH-3, change in plots dimensions to make it `l' shape be subject to approval of NOIDA. " As the same has not been done and the respondents UPIDC has not fulfilled their part of contract and without any information, the allotment has been cancelled, as such, the Court below was obliged to pass an order of injunction in favour of the appellant. The Court below has not considered this aspect of the matter that prima facie case was in favour of the appellant to the effect that he has already paid Rs. 80,00,000 and as the plot in question which was allotted in favour of the appellant was in L-shape and according to Clause-23 mentioned above, change in plot dimension to make it will be subject to approval of Noida and the same has not been done and the Nala has not been covered. Therefore, the Court below should have taken into consideration all these facts and should have granted an injunction order in favour of the appellant.
(3.) IT has further been submitted on behalf of the appellant that as the respondents have not discharged their burden according to the agreement executed between the parties and without any notice, the allotment has been cancelled, on the ground that he has not deposited the amount. In spite of the complaint made by the appellant, the UPSIDC has not constructed the pathway. All these factors have not been considered while disposing of the application for ad interim injunction vide its order-dated 16- 11-2006. The Court below has also erred in law and has utterly failed in recording the finding on the question of irreparable injury. It has been averred by the appellant as admittedly the appellant has deposited Rs. 80 lacs against Rs. 1,12,85,840/- and is deprived of a workable plot. Though the balance of convenience was in favour of the appellant but no finding has been recorded to this effect.;