Contempt Petitions allege infraction on part of NOIDA, the Respondent-Authority in not obeying the directions issued by this Court in its Judgment and Order dated 05.07.2011 in Civil Appeal No.4564 of 20081 and all other connected matters; and seek issuance of directions to NOIDA to execute a fresh lease deed/supplementary lease deed as detailed in the aforesaid Judgment and Order dated 05.07.2011 and for rescheduling of the balance land premium/instalments.
Though the scope of the Contempt Petitions was restricted to see whether functionaries of NOIDA were guilty of disobedience of the directions issued by this Court, the matter was considered from the standpoint of enabling both sides to settle their disputes and get over the stalemate which has been obtaining for the last 10 years. The endeavour was to see that the interest of both sides is sufficiently taken care of and more than anything else, the public interest must stand subserved. It is with this solution in mind, that the directions as stated above have been issued by this Court.
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
Hampshire Hotels and Resorts (Noida) Pvt. Ltd.. Vs.Ritu Maheshwari, CEO
1
Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CONTEMPT PETITION (CIVIL) NO.413 OF 2019
IN
CIVIL APPEAL NO.4564 OF 2008
HAMPSHIRE HOTELS AND
RESORTS (NOIDA) PVT. LTD. …Petitioner(s)
VERSUS
RITU MAHESHWARI, CHIEF EXECUTIVE OFFICER,
NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY
(NOIDA) …Contemnor
WITH
CONTEMPT PETITION (CIVIL) NO.416 OF 2019 IN CIVIL APPEAL NO.4570 OF 2008
WITH
CONTEMPT PETITION (CIVIL) NO.415 OF 2019 IN CIVIL APPEAL NO.4568 OF 2008
WITH
CONTEMPT PETITION (CIVIL) NO.414 OF 2019 IN CIVIL APPEAL NO.4566 OF 2008
WITH
CONTEMPT PETITION (CIVIL) NO.645 OF 2019 IN CIVIL APPEAL NO.4565 OF 2008
WITH
CONTEMPT PETITION (CIVIL) NO.646 OF 2019 IN CIVIL APPEAL NO.4571 OF 2008
WITH
CONTEMPT PETITION (CIVIL) NO.647 OF 2019 IN CIVIL APPEAL NO.4569 OF 2008
J U D G M E N T
Uday Umesh Lalit, J.
1. These Contempt Petitions allege infraction on part of NOIDA, the
Respondent-Authority in not obeying the directions issued by this Court in
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
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its Judgment and Order dated 05.07.2011 in Civil Appeal No.4564 of 20081
and all other connected matters; and seek issuance of directions to NOIDA
to execute a fresh lease deed/supplementary lease deed as detailed in the
aforesaid Judgment and Order dated 05.07.2011 and for rescheduling of
the balance land premium/instalments.
2. The basic facts in the backdrop of which the present proceedings
have arisen, were set out in paragraphs 3, 4, 5, 6, 7, 8 and 9 of the
Judgment dated 05.07.2011 as under:-
“3. At the 135th meeting of the Board of
Directors/Members of NOIDA Authority (for short
‘NOIDA Board’) held on 5.6.2006, the said State
Policy dated 22.5.2006 to attract more capital
investment in tourism/hotel industry was considered.
The NOIDA Board resolved to implement the said
policy in the areas falling within its jurisdiction and
apply the rates applicable to its Industrial area (Phase
I) to the plots to be allotted to the hotel industry. The
rate referred was the reserve rate of Rs.7400/- per
sq.m. applicable to Industrial Area (Phase I) plots,
fixed by the NOIDA Board at its meeting held on
20.3.2006.
4. The resolution also mentioned that the
implementation of the said policy should ensure
construction of sufficient hotels before the
Commonwealth Games to be held in Delhi, which
were scheduled to commence in October, 2010.
Having regard to the importance of the matter, the
Principal Secretary, Tourism, the Commissioner,
Meerut Circle and the Director of Industries of the
U.P. Government, attended the said meeting as special
invitees.
1 (2011) 7 SCC 493 (ITC Ltd. vs. State of Uttar Pradesh and Ors.)
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5. At a meeting held by the Circle Commissioner,
Meerut on 2.7.2006 with officials of NOIDA
Authority, he communicated the direction that
construction of Hotels should be completed before the
commencement of the Commonwealth Games. At the
said meeting the following 14 plots were identified as
being suitable for allotment as hotels/plots: (a) six
plots each measuring 40000 square metre for 5 star
hotels in Sectors 96, 97 and 98; (b) five plots each
measuring 20000 square metre for 4 star hotels in
Sectors 72, 101, 105, 124 and 135; and (c) three plots
for 3 star hotels (measuring 20000, 20000 & 10000
square metre) in Sectors 62, 63, and 142.
6. In view of the Government’s Policy dated
22.5.2006 and the decisions taken at the meeting
chaired by the Commissioner, Meerut Circle on
6.7.2006, the NOIDA Board took the following
decisions at its 136th meeting held on 14.7.2006 :
(i) It approved the proposal for making provision
for hotels in reserved commercial area – Zone
C 3 (as hotels had not been permitted in
commercial areas C-1 and C-2 of the master
plan reserved for wholesale and retail activities
and as there was demand for hotels due to
Commonwealth Games 2010) and directed
inclusion thereof in the approved proposed
NOIDA Master Plan 2021 and reference to the
State Government for its approval.
(ii) It decided to launch the Hotel Plot Allotment
Scheme and authorized the CEO to finalise the
terms and conditions for allotment, so as to
ensure construction of hotels by the allottees
before the commencement of the
Commonwealth Games.
In pursuance of the said decision, NOIDA Authority
sent a communication dated 20.7.2006 to the State
Government seeking approval of its decision to make
a provision for hotels in commercial areas under Zone
3 and inclusion of it in NOIDA Master Plan, 2021.
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7. The Secretary, Sports & Youth Affairs, Government
of India, held meetings with NOIDA Authority
officials on 28.7.2006 and 22.8.2006 in connection
with preparations for Commonwealth Games
scheduled in October, 2010. At those meetings, the
Secretary, Sports & Youth Affairs stressed the
Government of India’s request for earmarking 25
hotel plots in NOIDA. Therefore it was decided to
reduce the area of 5 star hotels to 24000 square metre
(instead of 40,000 square metre earlier proposed), the
area of 4 star hotels to 12500 square metre (instead of
20000 square metre) and the area of 3 star Hotels to
7500 square metre (instead of 10000 square metre)
and thereby convert the 14 plots into 25 plots made up
of 10 plots for 5 star hotels, 5 plots for 4 star hotels
and 10 plots for 3 star hotels.
8. At the meeting held on 28.8.2006 under the
chairmanship of the Circle Commissioner, Meerut, the
said decision to increase the number of plots for
hotels from 14 to 25 by reducing the plot
measurements, in the following manner:
(i) Ten plots for 3 star hotels – (area 7500 square
metre each)
Plot Nos. SDC/H1 and SDC/H2 in sector 62, plot
Nos.A-155/B and A-155/C in sector 63, plot No.
SDC/H 2 in sector 72, plot No.124A/2 in sector
124, plot No.SDC/H-2 in sector 103, plot
No.SDC/H-2 in sector 105, SDC/H-2 in sector
135 and plot No.14 in sector 142.
(ii) Five plots for 4 star hotels : (area : 12,500 square
metre each)
Plot No.SDC/H-1 in sectors 72, 103, 105 and 135
and plot No.124A/1 in sector 124.
(iii) Ten plots for 5 star hotels : (area 24,000 square
metre)
Plot Nos.H-1 to H-10 in sectors 96, 97 and 98.
9.The proposal for approving the increase in number
of plots and reductions in their size was placed before
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
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the NOIDA Board at the 137th meeting on 1.9.2006.
The NOIDA Board approved the proposal. The terms
and conditions for allotment drawn by the CEO were
also approved with a modification that they should
provide for obtaining Hotel Completion Certificate by
December 2009 (with authority to CEO to grant
extension of time). In pursuance of the said decision,
NOIDA Authority published the Hotel Site
Allotment Scheme on 17.10.2006, by advertisements
in newspapers and by issue of information brochures
containing detailed terms and conditions, inviting
applications for allotment of plots for 5 star, 4 star and
3 star hotels in NOIDA on 90 years lease basis.
Applications were made available between
17.10.2006 and 1.11.2006 (extended till 10.11.2006).”
3. The facts in all these Contempt Petitions are more or less identical and
for facility, Contempt Petition No.413 of 2019 is taken as the lead case. The
reference to the expression the “Petitioner” shall hereafter be taken as the
Petitioner in said lead case while the expression the “Petitioners” shall be taken
as all the Petitioners in the Contempt Petitions. The application preferred by the
Petitioner for allotment of Plot No.03, Block No. H, Sector No.96, Noida,
admeasuring 24,000 square metre having been accepted, Lease Deed dated
28.03.2007 was executed between the Petitioner and NOIDA. The relevant
recitals of the Lease Deed were as under:-
“WHEREAS the Authority had floated a scheme for
allotment of [3/4/5] star hotel sites in NOIDA on
17/10/2006 (hereinafter referred to as the “Scheme”)
in compliance of Tourism Department, U.P.
Government Order No.984/41-06-180/2005 dated
22/05/2006 and had invited applications for allotment
of Hotel site under the said Scheme from
companies/institutions/consortium of companies/
institutions registered/incorporated in India or abroad
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
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which are in hotel business and satisfying the
eligibility criteria and subject to and on the terms and
conditions set-forth in the said Scheme; and
WHEREAS the Authority, after evaluation of the
applications received from the eligible ‘applicants
including, inter alia, M/s. HAMPHSIRE HOTELS &
RESORTS LLC, a Company incorporated and
existing under the laws of jurisdiction of its
incorporation, has issued its allotment Letter No.
NOIDA/DGM (IND.)/2007/91 dated 12/01/2007
(hereinafter referred to as the “Allotment Letter”) to
the said M/S. HAMPSHIRE HOTELS & RESORTS
LLC allotting them Plot No.03, Block-H, Sector-96,
NOIDA admeasuring 24000 square metre
approximately and more fully described in Schedule
‘I’ hereto and inter alia requiring the M/s.
HAMPSHIRE HOTELS & RESORTS LLC to, inter
alia, pay the premium, take possession and execute
the lease deed within the period stipulated in the
Letter of Allotment; and
… … …
I. That in consideration of the total premium of
Rs.19,53,60,000/- (Rupees Ninteen Crores
Fifty Three Lacs and Sixty Thousand only)
agreed to be paid by the Lessee at the time and
in the manner hereinafter provided and in
further consideration of the lease rent herein
reserved and of the covenants, conditions and
agreements hereinafter contained and on the
part of the Lessee to be paid observed and
performed, the Lessor doth hereby grant and
demise UNTO the Lessee all that plot of land
numbered as 03 in Block H Sector No.96
situated within the New Okhla Industrial
Development Area, District Gautam Budh
Nagar, Uttar Pradesh, and containing by
measurement 24,000 square metre …
… … …
II. That the Lessee has on or before the date of
execution of this lease deed paid unto the
Lessor at its office or as otherwise directed by
the Lessor the yearly Lease Rent of
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
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Rs.48,84,000.00 (Rs. Forty Eighty Lacs Eighty
Four Thousand only) in advance on yearly
basis, for the first 10 years of the Term of the
Lease hereby granted commencing from the
date of execution of the lease deed and the
yearly Lease Rent for the remaining period of
the Term shall be payable by the Lessee
annually in advance on or before the due date
of payment set-forth in Clause 1 hereinabove,
without waiting for any demand, notice or
reminder therefor. … …”
4. The allotment of the hotel sites by NOIDA to various such allottees
was challenged by way of two Writ Petitions (Civil Misc. Writ Petition
No.24917/2007 and PIL Writ Petition No.29252/2007) in the High Court2
submitting inter alia that the allotment was at a very low price. By an
interim order dated 22.05.2007 the High Court directed the State
Government to exercise its power of revision under Section 41(3) of the
U.P. Urban Planning and Development Act, 1973 read with Section 12 of
said Act and to take a re-look in regard to the allotments. The State
Government considered the matter and found the allotments to be irregular
and, therefore, directed NOIDA to cancel the same. The decision was
implemented by NOIDA by issuing cancellation orders dated 03.08.2007.
In view of the cancellation, the original writ petitions were allowed to be
withdrawn.
However, the allottees then preferred writ petitions challenging
cancellation of their allotments. These writ petitions were allowed by the
2 The High Court of Judicature at Allahabad
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High Court by common order dated 13.05.2008 and the cancellation orders
dated 03.08.2007 were set aside on the ground that they were opposed to
principles of natural justice for want of opportunity of hearing. The High
Court, therefore, remanded the matter for taking a fresh decision.
The order of remand was, however, challenged by the allottees by
filing Special Leave Petitions in this Court. By way of an interim order,
this Court permitted the State Government to give hearing to the concerned
allottees and pass a reasoned order in accordance with law, uninfluenced
by any of the observations made by the High Court in its judgment and
order dated 13.05.2008. Accordingly, the matter was considered by the
State Government and by individual orders dated 08.09.2008 passed in the
case of each of the allottees, a decision was taken by the State Government
to cancel the allotments made by NOIDA.
Since these orders were passed during the pendency of the
challenge in this Court, the allottees were permitted to challenge the orders
of cancellation dated 08.09.2008 by filing additional grounds in pending
Special Leave Petitions.
5. After considering the rival submissions, by its judgment and order
dated 05.07.2011, this Court found that the allotment of commercial plots
to the allottees was valid and legal, but, since the commercial plots could
CONTEMTP PETITION (C) NO.413 OF 2019 IN Civil Appeal No.4564 of 2008
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have fetched premium at a rate of Rs.70,000/- per square metre at the
relevant time, this Court made following observations:-
“110. In these cases the allotment of commercial plots
to appellants is valid and legal. The violation is in
making such allotment on fixed allotment rate which
is less than the rate the plots would have fetched by
calling for tenders or by holding auctions. Therefore
the equitable solution in these cases is to give an
opportunity to the lessees to pay the difference
thereby in consideration which arose on account of
wrong interpretation instead of cancelling the leases.
111. According to the State Government, the
commercial plots would have fetched a premium at
rate of Rs.70,000 per square metre at the relevant time
(October 2006 to January 2007) and NOIDA
Authority had been denied the benefit of that
allotment rate, by reason of allotment of the plots at
Rs.7400/- per square metre. Therefore if the
appellants are willing to pay the balance of premium
as claimed by respondents, the leases need not be
interfered.
112. In this case the violation of the policies of
NOIDA in making allotments has resulted in a lesser
premium being charged than what would have been
applied for commercial plots. According to
respondents the premium that would have been
charged was Rs.70,000/- per square metre as against
Rs.7,400 per square metre. Therefore, the violation of
the guidelines in regard to disposal of commercial
plots has resulted only in a loss of revenue by way of
premium and if this could be made up, there is no
reason why the leases should not be continued.
… … …
115. .. … …Therefore if the appellants (2006-2007
allottees) are to be extended the aforesaid benefits
offered to allottees under the 2008 Scheme, the rate of
Rs.70,000/- per square metre (the rate of 2008 scheme
was 10% more than Rs.70,000/- per square metre)
claimed by the respondents becomes logical and
reasonable. We therefore find no reason to reject the
claim of respondents that the allotment rate should be
Rs.70,000/- per square metre. We accordingly grant
the appellants an opportunity to save the leases by
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paying the difference in premium at Rs.62600/- per
square metre to make it upto Rs.70,000/- per square
metre.
116. In view of the above we dispose of these
appeals as follows :
(i) The order of the High Court setting aside the
revisional order dated 1.8.2007 of the State
Government and the consequential orders of
cancellation of allotment of plots dated 3.8.2007 by
NOIDA Authority, is affirmed.
(ii) The revisional orders dated 8.9.2008 passed by the
State Government cancelling the allotments of plots to
appellants, are set aside.
(iii) The appellants are given the option to continue
their respective leases by paying the premium
(allotment rate) at Rs.70000/- per square metre (with
corresponding increase in yearly rent/one time lease
rent), without any location benefit charges. The
appellants shall exercise such option by 30.9.2011.
Such of those appellants exercising the option will be
entitled to the following benefits which has been
extended in regard to the allottees under 2008
allotment scheme of NOIDA Authority:
(a) 40% of FAR can be used by the allottee as
commercial space (as stipulated in the 2008
scheme).
(b) Permission to pay at its option, the
balance to make up 25% of the premium
(after adjusting all amounts paid at Rs.7400/-
per square metre plus location benefit
charges) on or before 30.9.2011 and the
balance 75% of premium in sixteen half
yearly instalments commencing from
1.1.2012 with interest at 11% per annum (as
offered to the applicants in 2008 scheme).
(c) The lessees will be entitled to transfer
rights in accordance with the 2008 scheme.
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On exercise of such option, the lease shall continue
and the period between 1.8.2007 to 31.7.2011 shall be
excluded for calculating the lease period of 90 years.
Consequently the period of lease mentioned in the
lease deed shall stand extended by a corresponding
four years period, so that the lessee has the benefit of
the lease for 90 years. An amendment to the lease
deed shall be executed between NOIDA Authority and
the lessee incorporating the aforesaid changes.
(iv) If any appellant is unwilling to continue the lease
by paying the higher premium as aforesaid, or fails to
exercise the option as per para (iii) above by
30.9.2011, the allotment and consequential lease in its
favour shall stand cancelled. In that event, NOIDA
Authority shall return all amounts paid by such
appellant to NOIDA Authority towards the allotment
and the lease, and also reimburse the stamp duty and
registration charges incurred by it, with interest at
18% per annum from the date of payment/incurring of
such amounts to date of reimbursement by NOIDA
Authority. If NOIDA Authority returns the amount to
the appellant within 31.12.2011, the rate of interest
payable by NOIDA Authority shall be only 11% per
annum instead of 18% per annum.
(v) Parties to bear their respective costs.”
6. Thus, the allottees who were willing to pay the premium at
Rs.70,000/- per square metre, with corresponding increase in yearly
rent/one-time lease rent without any location benefit charges, could
exercise an option whereafter an amendment to the lease deed had to be
executed between NOIDA and the concerned allottee. But those allottees
who were unwilling to continue the lease by paying the higher premium,
were to be returned all amounts paid by them towards the allotment and
the lease and the amount of stamp duty and the registration charges
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incurred by them with interest at 18% per annum from the date of
payment/incurring of such amounts to the date of reimbursement.
7. The Petitioners exercised their option to continue their respective
leases by paying the premium at Rs.70,000/- per square metre.
8. On 29.09.2011, 25% of the premium and lease rent was deposited
by the Petitioner and thereafter, on 03.04.2013 additional amount of Rs.5
crores was deposited. It is submitted that despite such deposits, no
supplementary lease deed was executed. According to the Petitioners,
after making over the additional amount, at the rate stated by this Court,
the supplementary lease deed had to be executed on the basis of which the
Petitioners could have raised finance and gone ahead with the project. On
the other hand, according to NOIDA, the lease rent and other dues had to
be cleared first, only whereafter the supplementary lease deed would be
executed.
It is in this background that the present Contempt Petitions have
been filed in this Court.
9. During the course of hearing of these Contempt Petitions, on
05.09.2019 two options were suggested to resolve the disputes between
the parties. Those options were:-
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“All the contempt petitioners-allottees shall pay up all
the amounts that are due alongwith the accrued
interest on or before 31.12.2019, whereafter, NOIDA
shall execute a supplementary lease deed in favour of
the contempt petitioners-allottees.
OR
The plots in question which were allotted to the
contempt petitioners-allottees be resumed by NOIDA
and put up for fresh auction, and from and out of the
proceeds the money deposited by each of the
contempt petitioners-allottees be returned by the
NOIDA along with interest @ 11% p.a.”
Both the sides sought accommodation to seek instructions in the
matter and they were directed to file affidavits. Accordingly, the affidavits
were filed on behalf of the Petitioners as well NOIDA.
10. All the Petitioners filed their affidavits willing to exercise the
Second Option. The affidavit filed on behalf of NOIDA on 13.09.2019
stated as under:-
“4. In reference to the order passed by this Hon’ble
Court, it is respectfully submitted that the NOIDA
would have not objection if this Hon’ble Court is
pleased to permit the petitioner – allottee-lessee to
pay up all the amounts that are due along with
accrued interest on or before 31.12.2019 where after
the NOIDA shall execute the Supplementary lease
deed in favour of the petitioner-allottee-lessee
company.
5. With reference to the second option set out in the
Hon’ble Court’s order dated 5.9.2019 and taking into
consideration contents of para 3 of the affidavit dated
11.9.2019 filed on behalf of the petitioner-allotteelessee company, the following five aspects may very
kindly be considered by this Hon’ble Court:
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(i) that the petitioner-allottee lessee has
been enjoying possession of the leased plot
since the September 2009;
(ii) that under terms of the allotment, the
processing fees is non-refundable;
(iii) that the stamp duty is paid to the State
Government and not to NOIDA and as per
the directions issued by this Hon’ble Court
in its Judgment dated 5.7.2011, the stamp
duty was refundable only in the event the
allottee were to exercise the option of not
accepting the rate fixed by this Hon’ble
Court i.e. Rs.70,000/- per sq.mt. The
petitioner – allottee-lessee exercised the
option of continuing with the allotment @
Rs.70,000/- per sq.mt. Therefore, the
petitioner is not entitled to seek refund of
the stamp duty from NOIDA.
(iv) that while enjoying possession of the
leased plot, the petitioner has belatedly
approached this Hon’ble Court by alleging
that the Supplementary lease deed has not
been executed.
(v) the interest that was paid was only on
account of the delay on the part of the
petitioner – allottee-lessee in not paying
the amount on time for which the petitioner
-allottee-lessee itself is responsible,
therefore, whether such interest amount is
also liable to refunded and that too with
interest.
Therefore, this Hon’ble Court may like to consider
whether the petitioner-allottee-lessee is to be refunded
the amount with reference to all the 9 heads,
excluding the stamp duty and that too with 11%
interest so as to enable the NOIDA to take its final
decision with respect to the second option noted in the
Hon’ble Court’s order dated 5.9.2019.”
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11. The matter came up on 17.09.2019. After quoting the relevant
portion from the Order dated 05.09.2019, the Order recited as under:-
“Thereafter, affidavits have been filed by the
concerned contempt petitioners in all the matters.
By way of example, we may quote the figures
available from the affidavit filed by the contempt
petitioner in Contempt Petition (Civil) No.413 of
2019, which are to the following effect:
Sr.
No.
Date Challan Particular Amount
1 11.11.2006 4704 Processing
Charges
5,00,000
2 11.11.2006 4704 Registration
Money
5,00,00,000
3 06.03.2007 6392 Instalment 14,53,60,000
4 06.03.2007 6392 Lease Rent 48,84,000
5 06.03.2007 6392 Interest 16,95,867
6 26.03.2007 5964/5969 Interest 3,53,640
7 11.05.2007 44314 One Time
Lease Rent
5,37,24,000
8 29.09.2011 5315 Balance
Premium
25% as per
order of
Hon’ble
Supreme
Court &
Advance
Lease Rent
17,01,68,000
9 03.04.2013 5611 Part
Payment of
Instalment
5,00,00,000
Total Amount Paid 47,66,85,507
12.03.2007 Stamp Duty
Payment
1,99,27,050
(Lease Deed Registered 28/03/2007)
Total Amount Paid 49,66,12,557”
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The contempt petitioners thereafter submitted that they
would have no objection if NOIDA was to resume all
the plots in question subject to the aforesaid amounts
being refunded to the contempt petitioners.
In response, an affidavit has been filed by NOIDA in
which it is submitted that certain elements out of the
amounts mentioned hereinabove would be nonrefundable and, as such, those amounts ought not to be
taken into account while coming to the aggregate sum
that could be returned to the contempt petitioners. It
was also submitted that the interest @ 11% per annum
as suggested in the order passed by this Court would be
at a rate higher than the prevalent rate and, as such, it
needed to be scaled down.
We heard Mr. Mukul Rohatgi, learned Senior Advocate
and Mr. Ravindra Kumar, learned Advocate.
Mr. Mukul Rohatgi, learned Senior Advocate fairly
submitted that the amounts mentioned against Heads at
Sr. Nos.1, 5, 6 and Stamp Duty may not be refunded to
the contempt petitioners provided reasonable rate of
interest was awarded to them on the amounts deposited
by the contempt petitioners. In his submission, interest
@ 11% per annum would be reasonable considering the
fact that the huge amounts were deposited with the
authorities.
Mr. Ravindra Kumar, learned Advocate submitted that
the contempt petitioners had all the while enjoyed the
property and, as such, they were not entitled to any
interest on the amounts deposited by them. Said
submission was refuted by Mr. Rohatgi submitting that
the land has always been lying without being put to any
profitable use and, as such, the contempt petitioners
have not really enjoyed any benefit from the land.
Mr. Kumar then left the matter to the discretion of the
Court and suggested that the Court may consider
granting interest at such rate as it deems appropriate.
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Considering the entirety of the matter, in our view, the
appropriate interest rate could be @ 7% per annum.
In the circumstances, the options given in order dated
05.09.2019 could be availed, subject to the aforesaid
modification. The appropriate affidavits shall be filed
by the contempt petitioners as well as NOIDA within
three weeks from today. The affidavits shall indicate
in tabular form all the amounts as stated hereinabove
and then indicate separately those which would not be
refundable. If there be any other charges or dues, the
same be indicated with clarity in the affidavit of
NOIDA.”
12. A further affidavit was filed on behalf of NOIDA on 25.11.2019
submitting inter alia that in case the Petitioners express their intention not
to continue with the allotment and seek refund, the case would be required
to be considered as surrender in terms of Clause ‘N’ of the Brochure, in
which case the deposited sum or 30% of the premium, whichever is less,
would be required to be forfeited and the remaining amount would be
refunded without interest. It was stated in the affidavit as under:-
“3. It is submitted that pursuant to the allotment and
the execution of the Lease Dead in favour of the
Petitioner Company, possession of the allotted plot
was handed over to the Allottee – Lessee way back on
28.9.2007. Ever since then the Petitioner is in the
possession of the allotted plot. However, as submitted
in the Affidavit filed earlier the Petitioner Company,
except for making part payment of the first instalment
the petitioner company failed and neglected to pay all
the 16 instalments. As a result, it is in arrears of huge
dues payable to the NOIDA. It is submitted that
earlier, a Compliance Affidavit in reference to
Hon’ble Court’s Order dt. 5.9.2019 had been filed on
13.9.2019, the contents whereof are reiterated and the
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same may be taken into consideration by this Hon’ble
Court.
4. It is further submitted that this Hon’ble Court,
vide Order dt. 17.09.2019, has been pleased to grant
opportunity to the respondent to submit an Affidavit
indicating in a tabular form the amounts that had been
deposited by the Petitioner. Liberty has also been
granted by the said order to indicate with clarity any
other charge or dues which is not refundable.”
13. In the aforesaid backdrop, we heard learned counsel led by Mr.
Mukul Rohatgi, Senior Advocate for the Petitioners on one hand and Mr.
Ravindra Kumar, learned Advocate for NOIDA.
14. Two options were suggested in the Order dated 05.09.2019.
Going by the affidavits filed by the Petitioners and the stand taken by the
learned counsel on their behalf, the Petitioners are not agreeable to the
First Option, though NOIDA is completely agreeable.
15. The Second Option as suggested in the Order dated 17.09.2019,
contemplated sale of the plots after resumption by NOIDA, and payment
to the Petitioners from and out of the sale proceeds. It was also made
clear that the interest of NOIDA could be secured by ensuring that in case
the price quoted in the fresh auction was lesser than what was assured
under the current arrangement with the Petitioners, the shortfall could be
directed to be made good by the Petitioners. But the affidavit filed by
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NOIDA has not dealt with this aspect and has suggested deduction of 30%
of the premium as stated above.
16. During the course of discussion, the learned counsel for the
Petitioners invited our attention to communication dated 21.10.2019
addressed by Commercial Department of NOIDA to M/S INGKA Centres
India Pvt. Ltd. accepting E-bid for allotment of a Commercial Property
admeasuring 47833 square meters, which is comparable with the size of
the plots in the instant case. The communication shows that the bid at the
rate of Rs.1,59,010.4528 per sq. metres was accepted, as against the price
of Rs.70,000/- per sq. metres in the instant case.
17. The facts set out in afore-quoted paragraphs of the Judgment dated
05.07.2011 indicate that the plots in the instant case were meant for fivestar and three-star hotels which were to come up well-in-time to cater to
the demand for hotels around Commonwealth Games, 2010. It has been
more than 10 years since the Games got over but no development on these
plots has occurred. The tussle is going on between the Petitioners on one
side who submit that because of indifferent and recalcitrant attitude on
part of the authorities, they could not enter into any arrangement for
financial accommodation, and as such, no development could be
undertaken; while on the other hand, the submission on part of NOIDA is
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that unless the payment of premium in entirety was made, no lease could
be executed. Each side is blaming the other and the resultant effect is that
the properties are lying undeveloped, no payment of premium is
forthcoming and the public interest is not getting subserved. It was in this
background that the Second Option was suggested so that the Petitioners
are allowed to withdraw themselves from the arrangement and, at the
same time, the interest of NOIDA is also well secured. Submissions were
advanced on the basis of what weighed with this Court when the
Judgment dated 05.07.2011 was passed, where this Court had given the
facility of withdrawal from the arrangement to such of the allottees who
were unwilling to continue. In that case, the concerned allottees were
allowed to withdraw all the amounts including the stamp duty and
registration charges along with interest @ 18% per annum. This aspect of
the matter has been pressed into service on behalf of the Petitioners to
submit that they were willing to forego the amounts indicated at Sl. Nos.
1, 5 and 6 of the illustrative chart quoted in the Order dated 17.09.2019
and as such the offer on part of NOIDA to refund the deposited amounts,
after deducting 30% of the premium amount without payment of any
interest, would not be fair, if the current prices of the lands in the area
were to be taken into account. It was also submitted that the fault actually
lies with NOIDA in not permitting the Petitioners to enter into financial
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accommodation, and thus no development could take place. These
submissions are undoubtedly refuted by the learned counsel for NOIDA.
18. The present status is nothing but a stalemate in which valuable
assets of a public authority are locked completely. The public interest is
neither getting subserved, nor is NOIDA getting instalments towards
premium on time. We asked the learned counsel for NOIDA if any
proceedings for resumption of land were undertaken, to which the
response was in the negative. In this situation, the modalities suggested by
the Second Option, in our considered view, could yield results which
would be favourable to both sides, and at the same time would take care
of public interest as well. However, considering the price index which is
available through the bid as described in the communication dated
21.10.2019, and keeping the interest of NOIDA in forefront, in our view,
the modalities stated hereafter, will take care of public interest and
competing claims of both sides.
19. Before we come to the modalities, certain aspects need to be
clarified including what amounts the Petitioners would be entitled to:-
A] From the illustrative chart, which was quoted in the Order dated
17.09.2019, the claims with regard to amounts mentioned against Sl.
Nos.1, 5 and 6 were given up by the Petitioners.
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B] As regards stamp duty, the stand of NOIDA is that the money was
not paid to NOIDA but was paid to the State Government, and, therefore,
NOIDA cannot be made to refund the amount towards stamp duty. Since
the State Government is not party to the present matter, no direction in
that behalf can be issued, and the matter shall have to be left to the State
Government to consider whether there could be refund of stamp duty
either in full, or in part.
C] Rest of the amounts comprise of two types of payments: a)
towards instalments of premium; and b) towards payment of lease rent.
20. As regards lease rent, it is evident from the chart in the Order
dated 17.09.2019 that an amount of Rs.44,84,000/- was paid by the
Petitioner by way of lease rent on 06.03.2007 and one-time lease rent
amounting to Rs.5,37,24,000/- was paid on 11.05.2007. One-time lease
rent constitutes payment for the entirety of the period of lease covered by
the document. Therefore, that component of the amount which represents
the remainder period after the plot is sold in terms of this Order, ought not
to be charged by NOIDA from the Petitioners. If the plot is re-sold, the
new allottee, in any case, will be paying in respect of such remainder
period under a fresh lease executed in his favour. The Petitioners shall,
therefore, be entitled to refund of that component of amount of one-time
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lease rent which proportionately represents the remainder period after the
plots in question are sold in terms of this Order. They shall not, however,
be entitled to any interest on such component.
21. The amount of interest on refund of the amounts paid towards
premium that the Petitioners would be entitled to was subject matter of
discussion on the earlier occasion. By order dated 17.09.2019 it was
found that the appropriate rate of interest could be 7% per annum. The
Petitioners would, therefore, be entitled to 7% annual interest on the
amounts deposited by them towards premium from time to time. These
amounts payable towards interest shall be calculated upto 30.04.2021 and
shall stand frozen as on that date.
22. In the light of the aforesaid discussion, the revised Second Option
shall be as under:-
A) The concerned plots allotted to the Petitioners be sold by
NOIDA by inviting E-bids or by auction after advertising the same as
was done in the Scheme No.2019-20 (Commercial Builder Plot-I)
B) If the price quoted in such E-bid for each of the concerned
plots is more than one and a half times of the price at which the
arrangement with the Petitioners was arrived at; that is to say, more than
Rs.1,05,000 per sq. metre, the Petitioners be returned the amounts
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deposited towards premium in each case. However, in case there is
shortfall as against the rate of Rs.1,05,000/- per sq. metre, the shortfall
shall be made good by the Petitioners and to that extent the amount
payable to the Petitioners towards refund of amount paid towards
premium shall stand reduced.
C) Insofar as refund of amounts towards remainder part of the
lease rent and the component of interest payable to each of the Petitioners
are concerned, said amounts shall be made over only if the price received
by NOIDA in fresh sale of said plots in terms of this Order is in excess of
Rs.1,05,000/- per sq. metre and only to the extent of excess beyond
Rs.1,05,000/- per sq. metre.
D) The Petitioners shall, thus, first be made over the
component representing the amount paid by them towards premium in the
manner as stated above. It is only if the rate fetched in such re-sale is
greater than Rs.1,05,000/- per sq. metre that the Petitioners shall be paid
amounts towards the remainder part of the lease rent and component of
interest payable, as stated hereinabove; subject always to the requirement
that these amounts are paid from the amounts representing the excess
above the base price of Rs.1,05,000/- per sq. metre; which will ensure that
NOIDA will always get a base rate of Rs.1,05,000/- per sq. metre for the
concerned plot in such re-sale. If the excess amount beyond Rs.1,05,000/-
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per sq. metre is not sufficient to absorb the amounts payable to the
Petitioners towards component of lease rent and the interest; their
entitlement shall stand reduced to that extent. It is also made clear that if
the difference between the base price of Rs.1,05,000/- per sq. metre and
the price fetched in the re-sale is greater than what would be payable
towards component of lease rent and interest, NOIDA alone shall be
entitled to such excess amount.
E] By way of illustration:-
(a) If the price quoted in E-bid or auction for a plot of 20,000
sq. metre is at the rate of Rs.1,00,000/- per sq. metre, the shortfall will be
Rs.5,000/- x 20,000/- (extent of plot) = Rs.10 Crores. Thus, Rs.10 Crores
shall be deducted from the deposited amount towards premium and the
balance shall be refunded. Since the price quoted in E – bid or auction is
less than Rs.1,05,000/- per sq. metre, nothing shall be payable towards
remainder part of the lease rent and the component of interest.
(b) If the price quoted in E – bid or auction is at the rate of
Rs.1,20,000/- per sq. metre, the amount to be received by NOIDA beyond
the level of Rs.1,05,000/- per sq. metre for the same plot shall be
Rs.15,000/- x 20,000/- (extent of plot) = Rs.30 Crores. As the price
quoted is more than Rs.1,05,000/- per sq. metre:-
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(i) The entire amount deposited towards premium shall be
refunded by NOIDA; and
(ii) So much of the amount representing remainder part of the
lease rent and component of interest which can be assorbed from
and out of Rs.30 Crores shall be refunded but not beyond Rs.30
Crores.
(iii) Thus, if the amount representing remainder part of the lease
rent and the component of interest is greater than Rs.30 Crores,
the entitlement shall be only upto Rs.30 Crores and not in excess
thereof. However, if such amount payable towards these two
heads is less than Rs.30 Crores, the amount shall be paid in full
and the balance shall be retained by NOIDA.
(F) In the process, NOIDA will always get minimum of
Rs.1,05,000/- per sq. metre in such re-sale.
G] After the concerned plots are sold in auction and
appropriate documents are executed in favour of the new allottees, the
concerned Petitioners shall be entitled to apply to the State Government
for refund of amounts paid by them towards Stamp Duty. Such
applications shall be considered by the State Government in accordance
with the extant policy and in accordance with law.
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23. The modality devised above will ensure that as against the
promised rate of Rs.70,000 per sq. metre, which premium is also in
arrears in the present cases, NOIDA shall get much more than that
towards price of land and will also stand to gain considerably.
Accordingly, in the process, not only will the public interest stand
subserved, but the projects which have run into stalemate, will also come
out of difficulties.
24. The Second Option given in the Order dated 05.09.2019 shall
stand modified to the aforesaid extent.
25. In case the Petitioners are agreeable to these conditions, the
Petitioners may exercise such option by filing appropriate affidavits with
NOIDA along with an appropriate Resolution of the Board of the
concerned Company. Upon such affidavit being filed within two weeks
from the date of this Order, NOIDA shall calculate the amounts deposited
by each of the Petitioners towards premium and so also the amounts
payable to each of the Petitioners towards component of lease rent and
interest from the date of each of those deposits @ 7% per annum upto
30.04.2021. A communication giving all the details, including the
proposed user as well as the minimum price at which the plots would be
put up for sale, shall be addressed to each of the Petitioners exercising
such option on or before 17.05.2021. The possession shall then be
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delivered by each of the Petitioners of the concerned plots back to NOIDA
by 31.05.2021. Upon such handing over of the possession, the title of the
Petitioners in respect of the concerned plots shall stand extinguished. The
Lease Deeds in their favour, shall be delivered up by each of the
Petitioners, which shall also stand cancelled.
26. NOIDA shall, thereafter, put up the plots in question for auction or
invite E-bids within three months, in the same fashion as was done in
connection with the property referred to in the communication dated
21.10.2019. It will be entirely up to NOIDA to put up the plots for sale
collectively or individually or to sell them for any purpose which in the
opinion of NOIDA would subserve public interest and devise the
modalities for sale. From and out of the sale proceeds received in such
sale, the amounts indicated above shall be paid to each of the Petitioners
exercising such Second Option in accordance with the principles as stated
above, within three months of the sale.
27. In case no option is exercised by any of the Petitioners in the
manner indicated hereinabove, or in case no possession is handed over
within the time stipulated even after exercising such option, it shall be
deemed that each of such Petitioners is not desirous of exercising the
Second Option and said Petitioners shall be treated to have opted for the
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First Option as indicated in the Order dated 05.09.2019. In such cases,
NOIDA shall issue appropriate communication calling upon them to pay
up all the dues in terms of the First Option within reasonable time. The
supplementary Lease Deed shall be executed only after all the dues as
indicated in the First Option are cleared. If the amounts are not cleared
within the time stipulated, the concerned plots shall stand resumed in
favour of NOIDA and those Petitioners shall be dispossessed of the plots
in their occupation in a manner known to law.
28. It is made clear that the handing over of possession in exercise of
the revised Second Option, as granted earlier or taking over of possession
in terms of the preceding paragraph, shall be on “as is where is” basis.
The concerned Petitioners shall not be entitled to any value addition, be it
in the form of construction of any structures or erection of any compound
wall. The possession shall be handed over and/or received along with
such value additions, which shall vest in NOIDA. Similarly, every
individual on the plot in question must be made to vacate and the handing
over or receiving of possession must be clear and peaceful.
29. Though the scope of the Contempt Petitions was restricted to see
whether functionaries of NOIDA were guilty of disobedience of the
directions issued by this Court, the matter was considered from the
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standpoint of enabling both sides to settle their disputes and get over the
stalemate which has been obtaining for the last 10 years. The endeavour
was to see that the interest of both sides is sufficiently taken care of and
more than anything else, the public interest must stand subserved. It is
with this solution in mind, that the directions as stated above have been
issued by this Court.
30. Subject to what is stated hereinabove, all the contentions raised in
these Contempt Petitions are rejected and Contempt Petitions are closed.
31. Ordered accordingly.
……………………………J.
[Uday Umesh Lalit]
……………………………J.
[Indu Malhotra]
……………………………J.
[Krishna Murari]
New Delhi;
March 09, 2021.
