# Allure Developers Pvt. Ltd v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-23
- **Case number:** Writ-C No. 19361 of 2020
- **Bench:** Pritinker Diwaker, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/allure-developers-pvt-ltd-v-state-of-u-p-anr-47694
- **Pages:** 6

## Headnote

C.S.C., Sri Kaushalendra Nath Singh, Sri
Sarthak

A.
Local
authority
-
Zero
period
benefit - Lease deed executed, but
the possession of land could not be
handed over due to dispute with
farmer,
resulting
into
non
commencement
of
project
-
Encroachment was removed only on
21.08.2020, however claim of zero
period benefit was granted only upto
30.09.2016 - Lease rent also charged
- Legality challenged - Held, the
petitioner was liable to get zero
period benefit from 19.12.2014 up to
21.8.2020
when the encroachment
was admittedly cleared from the plot
allotted
-
Held
further,
the
respondent No. 2 is not justified to
charge the lease rent @ 2.5% of the
total premium from 19.12.2014 up to
21.8.2020. (Para 14)
Writ petition allowed. (E-1)

## Text

136 INDIAN LAW REPORTS ALLAHABAD SERIES
operation was initiated without providing
an opportunity of hearing. It was, therefore,
in view of the facts of that case, the order
of single operation was set aside.

21. Therefore, the aforesaid two
judgements are of no help to the petitioner.

22. In view of the aforesaid facts and
circumstances of this case, though notice
may not have been given to the petitioners
prior to issuance of the impugned order of
single operation of the account, no
prejudice has been caused to them. In the
aforesaid judgement in Aligarh Muslim
University, the Supreme Court held that not
mere violation of natural justice but de
facto prejudice (other than non-issue of
notice) has to be proved. In view of the
indisputable facts of the present case, only
one view is possible, and that is, that the
petitioner Committee of Management had
no right to continue beyond 24.4.2021. The
benefit of the extended term of the
Committee of Management, brought about
by the amendment in the Scheme of
Administration, would not inure to the
petitioner
Committee
of
Management
which was existing on the dates of adoption
and approval of the amended Scheme of
Administration.

23. In view of the aforesaid facts and
circumstances of the case, in the opinion of
the Court, the petition has no legs to stand
and it is, accordingly, dismissed.
----------
(2022) 10 ILRA 136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.
Writ-C No. 19361 of 2020

Allure Developers Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Samarath Singh, Sri Hritudhwaj Pratap
Sahi, Sri Sankalp Narain, Sri Siddharth
Singhal, Sri Ravi Nanda, Sri Amit Saxena
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh, Sri
Sarthak

A.
Local
authority
-
Zero
period
benefit - Lease deed executed, but
the possession of land could not be
handed over due to dispute with
farmer,
resulting
into
non
commencement
of
project
-
Encroachment was removed only on
21.08.2020, however claim of zero
period benefit was granted only upto
30.09.2016 - Lease rent also charged
- Legality challenged - Held, the
petitioner was liable to get zero
period benefit from 19.12.2014 up to
21.8.2020
when the encroachment
was admittedly cleared from the plot
allotted
-
Held
further,
the
respondent No. 2 is not justified to
charge the lease rent @ 2.5% of the
total premium from 19.12.2014 up to
21.8.2020. (Para 14)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Shri Amit Saxena, learned Senior
Advocate assisted by Shri Siddharth
Singhal & Shri Ravi Nanda, learned
counsel for the petitioner and Shri Sarthak
under the authority of Shri Kaushalendra
Nath Singh, learned counsel for the
respondent No. 2.
10 All. Allure Developers Pvt. Ltd. Vs. State of U.P. & Anr.
137

2. The writ petitioner is a private
limited company registered under the
provisions of the Companies Act, 1956,
with its registered office at 3016/5, Second
Floor, Street No. 12A, Ranjeet Nagar, New
Delhi. The petitioner is engaged in the
development of residential as well as
commercial projects.

3. The writ petition was initially filed
seeking the following reliefs:-

"i) a writ, order or direction in
the nature of mandamus directing the
respondent no.2 to handover the vacant,
physical and peaceful possession of the
Encroached Portion of the Subject Plot
admeasuring 17261 sqm forming part of
Plot No. SC02/C, Sports City, Sector 150,
Noida Gautam Budh Nagar allotted to the
petitioner.

ii) a writ, order or direction in
the nature of mandamus directing the
respondent no. 2 to give "zero period" from
the date of execution of the Lease Deed i.e.
19-12-2014 till the time the petitioner is
given the vacant, physical and peaceful
possession of the said Encroached Portion
of the Subject Plot being Plot No. SC-02/C,
Sports City, Sector 150, Noida Gautam
Budh Nagar allotted to the petitioner.

iii) a writ, order or direction in
the nature of mandamus directing the
respondent no. 2 to defer the payment of
annual
lease
rent
for
the
period
commencing from the date of execution of
Lease Deed dated 19-12-2014 till the date
on which the vacant, physical and peaceful
possession of the Encroached Portion of
the Subject Plot is handed over to the
petitioner:

iv) a writ, order or direction in
the nature of mandamus directing the
respondent no. 2 to grant extension of time
with regard to the time period stipulated in
the lease deed for completion of the project
commencing from the date of execution of
lease deed i.e. 19-12-2014 till the date on
which the vacant, physical and peaceful
plot of Encroached Portion of the Subject
Plot is handed over to the petitioner; and

v) a writ, order or direction in the
nature
of
mandamus
directing
the
respondent no. 2 to not issue any demand
note or any further or subsequent default
notices till the time the petitioner is given
the
vacant,
physical
and
peaceful
possession of the Encroached Portion of
the Subject Plot being Plot No. SC02/C,
Sports City, Sector 150, Noida Gautam
Budh Nagar allotted to the petitioner; and

vi) any other writ, order or
direction as this Hon'ble Court may deem
fit and proper in the circumstances of the
case to meet the ends of justice.

vii) Award cost of the petition to
the petitioner."

4. The writ petition was amended and
the following reliefs were incorporated:-

"viii) a writ, order or direction in
the nature of certiorari quashing the
impugned order dated 11-02-2021 issued
by New Okhla Industrial Development
Authority i.e. respondent no.2 (Annexure
no.18 to this writ petition) in relation to
Plot being SC-02/C, Sports City, Sector
150, Noida, Gautam Budh Nagar, U.P.

ix) a writ, order or direction in
the nature of mandamus directing the
respondent no. 2 to not take any coercive
steps/actions pursuant to the Impugned
Order dated 11-02-2021.

x) a writ, order or direction in the
nature
of
mandamus
directing
the
respondent no. 2 to expeditiously grant
approval of the building plans submitted
vide
application
dated
12-03-2020
(Annexure 19 to this writ petition) in
138 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of group housing project of the
petitioner in the Subject Plot."

5. It is contended on behalf of the
petitioner that the respondent No. 2 floated
a scheme, being Scheme 2014-15 (Sports
City) for development of Sports City in
Plot No. SC-02 in Sector 150, NOIDA and
invited bids from interested parties for
being awarded the project under the
scheme. The petitioner submitted its bid as
a consortium member and the bid was
accepted by the respondent No. 2 vide
letter of acceptance dated 7.7.2014 issued
in favour of the consortium addressed to
Lotus Greens Constructions Pvt. Ltd., as
lead member. The consortium was allotted
Plot No. SC-02, Sector 150, NOIDA admeasuring 12,00,000 square meters @
Rs.19,400/- per square meter. A sum of
Rs.96,40,00,000/- was deposited by the
consortium including the petitioner after
adjusting earnest money of Rs.20 crores.
As per the understanding by the petitioner
and
other
consortium
members,
the
petitioner would be entitled to an area of
60,000 square meters out of the said Sports
City, Plot No. SC-02/C. The petitioner
deposited a sum of Rs.23,28,00,000/- being
20% of the total consideration in respect of
the plot in question. The respondent No. 2
on 19.12.2014 executed a lease deed in
respect of the 60,000 square meters for a
period
of
90
years.
However,
the
possession of the plot i.e. SC 02-C (area
60,000 square meters) could not be handed
over on account of disputes with farmers
and land owners regarding the acquisition
of the land. The petitioner on account of
not being handed over possession of the
leased plot could not commence the
project. The petitioner under the aforesaid
circumstances applied for grant of zero
period benefit and for different of payment
of installments lease premium and annual
lease rent which was accorded by the
respondent No.2 from the date of allotment
i.e. 07.07.2014 upto 30.09.2016 vide letter
dated 12.09.2016.

6. The lead member of the consortium
M/s Lotus Greens Constructions Pvt. Ltd.
for itself and also on behalf of its members
including the petitioner also applied to the
respondent No.2 for grant of zero period
benefit till the vacant, peaceful and
physical possession of the land allotted was
handed over to the Consortium Members.
When there was no response from the
respondent
No.2
M/s
Lotus
Greens
Constructions Pvt. Ltd., filed Writ Petition
No.18798 of 2017 which was disposed of
directing the respondent No.2 to decide the
application regarding handing over of
possession and grant of zero period benefit
within one month vide order dated
29.05.2019. The respondent No.2 did not
comply with the order dated 29.05.2019.

7. The petitioner under the zero
period policy of the respondent No.2 made
an application for re-schedulement of the
outstanding dues of lease premium and
deposited a sum of Rs.10,26,20,453/- as reschedulement fee as per the policy. The
respondent No.2 instead of allowing the reschedulement raised a demand of Rs.10.88
Crores. The petitioner contested the said
demand on the ground that such demand
could not be raised during the period, the
petitioner was not handed over vacant
physical possession of the plot allotted.
When the Respondent No.2 did not take
any decision in the matter, the petitioner
filed Writ Petition No.7962 of 2020 which
was
disposed
of
vide
order
dated
05.03.2020 directing the respondent No.2
to decide the application seeking grant of
zero period benefit and regarding annual
lease rent within six weeks by order dated
10 All. Allure Developers Pvt. Ltd. Vs. State of U.P. & Anr.
139
05.03.2020 in the light of the observation
made in the order. The respondent No.2 in
compliance of the order dated 05.03.2020
has decided the representation of the
petitioner and arbitrarily rejected the same
by the impugned order dated 11.02.2021.

8. In the aforesaid factual backdrops
the petitioner submits that the inaction on
the part of the respondent No. 2 in
arranging vacant peaceful and physical
possession of the encroached portion of
17261 square meter of the plot allotted to
the petitioners even after more than 5 years
of execution of the lease deed is causing
serious financial loss and the request for
grant of zero period benefit was liable to be
allowed. Instead the respondent No. 2 has
proceeded to reject the same. Admittedly,
the respondent No. 2 did not have
possession over the encroached area of the
plot and the encroachment was removed
only on 21.8.2020 after six years of the
allotment of the land, the petitioner was
certainly entitled to the benefit of the zero
period policy. Further, the petitioner cannot
be forced to pay the lease premium and
annual lease rent in respect of the plot
substantial portion of which has not been
handed
over
to
the
petitioner.
The
petitioner cannot be penalized for the
fault/lapse of the respondent No. 2 who,
admittedly, failed to clear the plot allotted
to the petitioner of the encroachment
existing over it at the time of allotment of
the plot and consequently, the petitioner
was deprived from utilizing the full
potential of the allotted plot. It is, thus,
prayed that the writ petition be allowed.

9. A counter affidavit sworn by Shri
Anil Kumar Singh son of late Shri Ram
Shanker Singh posted as AGM in New Okhla
Industrial Development Authority (NOIDA),
Gautam Budh Nagar has been filed in
response to the writ petition on behalf of
respondent No. 2 stating therein that the
petitioner was given possession of the plot
SC-02/, Sector 150 having an area of 60,000
square meters on 26.12.2014 and there was
no encroachment on the said plot. The entire
land allotted to the petitioner was acquired
land of the NOIDA authority and there was
no disturbance with the farmers. The land of
the farmers is on the other side of the road.
The petitioner never applied for approval of
map to raise constructions and the request for
grant of zero period benefit is unjustified. The
lead member of the petitioners consortium
M/s Lotus Greens Construction Pvt. Ltd., has
already been given the benefit of zero period
vide letter dated 12.9.2016 and the petitioner
was also extended the benefit of zero period
from 10.9.2014 to 30.9.2016. The NOIDA
authority does not have policy to declare zero
period in respect of lease rent and as such, the
relief in that regard prayed for cannot be
granted to the petitioner. The representation
of the petitioner has been rightly rejected by
the impugned order. If the petitioner is still
aggrieved, it may avail the remedy of
approaching the State Government under
Section 41 (3) of the U.P. Urban Planning &
Development Act, 1973 read with Section 12
of U.P. Industrial Area Development Act,
1976.

10. In the rejoinder affidavit, the
petitioner has reiterated its stand taken in the
writ petition and highlighted the contrary
stand of the respondent No. 2 in the counter
affidavit.

11. We have heard the learned
counsel for the parties and have perused the
record.

12. We find that the respondent No. 2
while passing the impugned order has not
considered the case of the petitioner in
140 INDIAN LAW REPORTS ALLAHABAD SERIES
correct perspective. The respondent No. 2
was required to decide the representation in
compliance of the order dated 5.3.2020
passed in Writ Petition No. 7962 of 2020
(Allure Developers Pvt. Ltd. versus State of
U.P. and 2 others). The operative portion of
the order dated 5.3.2020 reads as under:

"The writ petition is disposed of
with the direction to the Chief Executive
Officer, NOIDA-respondent no.3 to pass a
fresh order only with regard to lease rent,
which has been charged from 2015 upto
2020, especially in view of the fact that the
'zero period' has been allowed upto
30.9.2016 and why the petitioner should be
saddled with extra lease rent, once the
property in question was not handed over
to the petitioner and 'zero period' having
been declared by the authority itself. The
said decision shall be taken by the Chief
Executive Officer-respondent no.3 within a
period of six weeks from the date a certified
copy of this order is presented before the
authority concerned.

Till such decision is taken by the
Chief Executive Officer, so far as lease rent
is concerned, no coercive steps shall be
taken against the petitioner pursuant to the
demand notice dated 6.9.2019 only with
regard to lease rent. The said demand shall
be subject to final decision that may be
taken by the Chief Executive Officer."

13. A perusal of the orders of the coordinate Bench dated 5.3.2020 shows that
this Court required the Chief Executive
Officer to take a decision regarding
charging of lease rent for the period
possession of the plot not having handed
over to the allottee. We find that the
respondent No. 2 while rejecting the
representation of the petitioner has not
gone into this question at all and simply has
stated that there is no such policy of the
authority.

14. We also find that the respondent
No. 2 under the impugned order dated
11.2.2021 has noted that the encroachment
ad-measuring 17621 square meter was
removed only on 21.8.2020. It necessarily
flows that the petitioner was not put in
possession of the entire land allotted to it
on 26.12.2014 consequent to the execution
of the lease deed on 19.12.2014. In such
view of the matter, we are of the view that
the respondent No. 2 was not justified to
restrict the zero period benefit from
19.12.2014 up to 30.9.2016 only. In the
circumstances that stood attracted to the
case of the petitioner, it was liable to get
zero period benefit from 19.12.2014 up to
21.8.2020 when the encroachment was
admittedly cleared from the plot allotted.
We also find that the respondent No. 2 is
not justified to charge the lease rent @
2.5% of the total premium from 19.12.2014
up to 21.8.2020.

15. Accordingly, the writ petition
stands allowed. The order dated 11.2.2021
passed by the respondent No. 2 in relation
to Plot No. SC-02/C, Sports City, Sector
150, Noida, Gautam Budh Nagar, U.P., is
set aside. The respondent No. 2 is directed
to grant benefit of zero period to the
petitioner from 19.4.2014 up to 21.8.2020
and not charge the lease rent in respect of
the area of the plot, the possession of which
has not been handed over at the time of
allotment.

16. So far as the relief regarding grant
of approval to the building plans submitted
vide
application
dated
12.3.2020
is
concerned, we expect the Authority to do
the needful in accordance with law
10 All. Vijay Vs. State of U.P. & Ors.
141
considering
the
observations
made
hereinabove.
----------
(2022) 10 ILRA 141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-C No. 20102 of 2022

Vijay ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Sharma

Counsel for the Respondents:
C.S.C., Sri Rahul Kumar Singh, Ms. Shreya
Gupta

A. Civil law - Dispute between two private
parties - Separation of judicial and
executive power - Duty of administrative
authorities - First appeal before the Court
of District Judge was pending - During the
course, the District Magistrate directed for
inspection of the property, in question -
Revenue authority forcibly disposed the
petitioner - Legality challenged - Held,
although the District Magistrate was fully
well aware about the dispute relating to
the boundary issue and pendency of the
civil proceedings between the parties
relating to the disputed land before the
civil
court,
he
has
overreached
his
jurisdiction by entering into the disputes
to be adjudicated by the revenue court or
the civil court - Held further, in our
Constitution, there is clear separation of
judicial
and
executive
powers
-
Administrative Officials cannot enter into
any such dispute in exercise of the power
conferred on them under the provisions of
Cr.P.C. and the Revenue Code to fill in the
gap and pass executive orders which
explicitly belongs to the realms of Civil
Court or the revenue court respectively.
(Para 20 and 26)
Writ petition disposed off. (E-1)
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Sri Kamlesh Sharma,
learned counsel for the petitioner, Sri K.R.
Singh, learned Chief Standing Counsel
appearing for the State and Ms. Shreya
Gupta, learned counsel for the respondent
no. 7.

2. The petitioner has knocked the
doors of this Court under Article 226 of the
Constitution of India being aggrieved by
the action on the part of the Sub-Divisional
Magistrate, Tehsil - Kasimabad, District -
Ghazipur in foraying into the dispute
relating
to
private
property
on
the
application filed by the respondent no. 7
before the District Magistrate, Ghazipur
and as such has prayed, inter alia, for the
following reliefs:

(I) Issue a writ, order or direction
in the nature of mandamus directing the
respondent no. 3 to restore the land of the
petitioner in its previous position which
was dispossessed by he respondents during
pendency of the Appeal No. 11 of 2022
(Natthe & anothr Vs. Vikrama) pending
before the learned District Judge, Ghazipur.

(II) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no. 1 to take
disciplinary action against the respondent
nos. 2 to 6 who have illegally dispossessed
the petitioner from his land without
adopting any legal procedure.

3. This Court while issuing notice in
the present writ petition vide interim order
dated
20.7.2022
has
expressed
its