Court No. - 39
Case :- WRIT - C No. - 14653 of 2019 Petitioner :- M/S Logix Buildtech Private Limited Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Nitin Sharma,Gaurav Bhatia Senior Advocate Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Shashi Nandan, learned Senior Counsel and Sri Gaurav Bhatia, learned Senior Counsel assisted by Sri Nitin Sharma, learned counsel for the petitioner, learned Standing Counsel for the respondent no.1 and Sri Kaushalendra Nath Singh, learned counsel for the respondents no.2, 3 & 4.
The petitioner in the writ petition is seeking quashing of the order dated 16.08.2018 whereby recovery of Rs.93,73,68,817/- is sought to be made from the petitioner. The petitioner is also seeking quashing of the demand notice dated 06.03.2019 whereby recovery of Rs.30,66,40,625/- is also sought to be made from the petitioner.
The contention of the petitioner is that he was allotted the land for commercial development being Commercial Property No.BW-58 situated at Sector 32 NOIDA, Gautam Budh Nagar, Uttar Pradesh on 23.07.2010 and the project was required to be completed within five years i.e. 22.07.2015.
It is contended that some time in the year 2013 certain applications were filed before the National Green Tribunal (in short 'NGT)' with regard to prevent illegal and unauthorised construction works undertaken by the developers within 10 kms. radius of the Okhla Bird Sanctuary, therefore, the 'NGT' passed an interim order on 14.08.2013 directing that all the construction works going on within 10 kms. radius of Okhla Bird Sanctuary without obtaining proper Environmental Clearance (in short 'EC') or incontravention thereof shall be immediately stopped by making necessary Panchanamas and by preparing status report.
Subsequently, another order was passed on 28.10.2013 wherein it was clarified that all the buildings which were built up without 'EC' within 10 kms. radius of Okhla Bird Sanctuary or within the territorial limit of eco-sensitive zone as may be notified by the Ministry of Environment & Forests (in short 'MoEF') as stated above are to be declared as illegal constructions and Government of U.P. shall take immediate steps for removal of those buildings after giving proper notice to the parties concerned.
Another order was passed by the 'NGT' on 3rd April, 2014 directing the Secretary, 'MoEF' to take into consideration the demarcation of boundaries in fixing the eco-sensitive zone apart from the issues as to whether it is site specific etc. and it was directed that till such notification is issued, the interim order passed by the Tribunal as modified subsequently shall continue to be in operation.
The contention of the petitioner further is that since this interim order was in operation in 2014 and 2015 he was entitled to treat the said period as 'Zero Period' for which there was a provision made by the NOIDA Authorities and which matter was required to be considered by the Board on a case to case basis as would be clear from the order dated 29.11.2016. It is stated that by the letter dated 10.01.2017 addressed to the Additional CEO (S), NOIDA Administrative Office (Annexure-30 to the writ petition) the petitioner had requested for treating the period from 14.08.2013 to 28.10.2015 be declared as 'Zero Period'.
It is stated that the respondents authorities by order dated 05.06.2017 (Annexure-32 to the writ petition) treated only two months period from 14.08.2013 to 28.10.2013 as 'Zero Period' and for the period from 29.10.2013 to 19.08.2015 it was treated as period without charging penal interest.
It is stated that the impugned demand notice dated 06.03.2018 requires the petitioner to pay time period extension charges Rs.30,66,40,625/- for the period from 23.07.2017 but does not take into consideration the period, the interim order of the 'NGT' existed from 14 august 2013 upto the period when the 'NGT' had directed the interim order shall continue to be in operation till the notification issued by the 'MoEF'.
Annexure-17 to the writ petition shows that the notification was issued by the 'Ministry of Environment, Forest and Climate Change on 19.08.2015, therefore, the interim order of the 'NGT' would continue to be operate till this date as was clarified by the 'NGT' itself in its earlier order of 28.10.2013. This benefit has not been granted to the petitioner. So far as the charge of interest on instalment of the amount of Rs.36,07,83,194/- which shows as outstanding upto 31st December, 2017 also does not take into consideration the period from the date of the first interim order of the 'NGT' dated 14th August, 2013 upto the date of the 'MoEF' Notification dated 19.08.2015.
Sri Kaushlendra Nath, learned counsel for the respondents, however, referred to the order of the 'NGT' dated 28.10.2013 where the 'NGT' has clarified that the possession with regard to the interim order granted on 14.08.2013 was extended only upto 17.09.2013 and his submission, therefore is that the interim order was only for the period for two months. However, from the subsequent order of 3rd April, 2014 the 'NGT' has clarified its earlier order and has directed that till notification was issued by the 'MoEF', the interim order passed by the Tribunal as modified shall continue to remain in operation.
In respect of his grievances the petitioner is stated to have submitted an application before the CEO and Chairman (NOIDA) on 29.08.2017 (Annexure-42 to the writ petition ) for reschedulement of payments after adjustment of 'Zero Period' and waiver of Time Extension charges in respect of Plot No.BW-58, Sector 32, NOIDA, Uttar Pradesh. The petitioner has also submitted an application dated 08.04.2019 before the OSD (Commercial Department), NOIDA, Administrative Office (Annexure-44 to the writ petition) In our opinion, since the application of the petitioner is already pending before the CEO and Chairman (NOIDA) it would be appropriate to direct the respondent no.2 to take a decision on the petitioner's application.
We therefore dispose of this writ petition with a direction to the respondent no.2, Chairman & Chief Executive Officer, NOIDA, Gautam Buddh Nagar to take a decision on the petitioner's applications dated 29.08.2017 and 08.04.2019 bearing in mind the observations made above expeditiously preferably within a period of 2 months from the date of receipt of a certified copy of this order in his office.
Needless to say the respondent no.2 shall while deciding these applications and the grievances of the petitioner shall also give an opportunity of hearing to the respondents.
Till such decision is taken no coercive action shall be taken against the petitioner in respect of the impugned order dated 16.08.2018 and the demand notice dated 06.03.2018.
Order Date :- 26.4.2019/N Tiwari