Present:
Hon. Mr. Justice Amitava Lala, Acting Chief Justice, & Hon. Mr. Justice Ashok Srivastava.
Appearance:
For the Appellants : Mr. M.N. Singh.
For the Respondent : Mr. Somesh Khare.
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Amitava Lala, ACJ.-- In this appeal the appellants have challenged the judgement dated 18th December, 2006 and decree dated 23rd December, 2006 passed by the IInd Additional Civil Judge (Senior Division), Gautam Budh Nagar in Original Suit No. 411 of 2004 (International Print-O-Pac Limited Vs. New Okhla Industrial Development Authority and another), whereby the suit of the plaintiff-respondent has been decreed.
Though the appeal has been filed by the appellants-New Okhla Industrial Development Authority and another, who were defendants in the suit, but in order to understand the controversy we want to have the case of the respondent, who was plaintiff in the suit, at first.
Briefly stated facts, according to the respondent, are that pursuant to the application made by respondent for allotment of industrial plot for setting up a printing and packaging industry, the respondent was allotted 10 plots bearing Nos. 4 to 11, Block-C, Hosiery Complex, Phase-II, Extension, Noida by the appellants by allotment letter dated 13th September, 1994. The total area allotted was 32010 square meters @ Rs.500/- per square meter. Out of total allotted area, an area of 6000 square meters consisting of Plot Nos. C-7 and C-8 was allotted @ Rs.500/- plus Rs.60/- per square meter for being corner plots located on wide roads, whereas remaining area of 26010 square meters consisting of eight plots i.e. Plot Nos. C-4, C-5, C-6, C-7A, C-8A, C-9, C-10 and C-11 was allotted @ Rs.500/- plus Rs.30/- per square meter on account of being located on 24 meter and 30 meter wide roads. Accordingly, as per the allotment letter, a sum of Rs.1,71,45,300/- including location charges of Rs.33,60,000/- was paid by the respondent to the appellant no. 1 in 10 equal instalments upto the year 1997. Lease deed for all the plots was executed on 01st June, 1995 and physical possession was handed over to the respondent on 02nd June, 1995. On 23rd December, 1995 the respondent applied for amalgamation of all the plots, permission for which was granted in two parts i.e. for Plot Nos. C-4, C-5, C-6, C-7 and C-7A in first part and for Plot Nos. C-8, C-8A, C-9, C-10 and C-11 in second part vide letter dated 19th April, 1996 of the Assistant Development Manager (Industries) of the appellant no. 1. However, it was specifically mentioned in such letter that terms and conditions will remain as it is as per the allotment letter dated 13th September, 1994 and lease deed dated 01st June, 1995. The respondent applied to the Industrial Financial Corporation of India for a long term project loan of Rs.14 crores, for which approval was accorded by the appellant no.1 and a No-Dues Certificate was also issued vide letter dated 20th August, 1997. The respondent has always regularly been making payments and even the instalments due till the year 1999 have been paid in 1997 itself. However, when in the month of May, 1999 the representative of the respondent went to the office of the appellants to obtain a challan to deposit annual advance lease rent due for the year 1999-2000, he was asked to deposit additional lease rent amounting to Rs.1,41,945/- and also location charges including interest @ 15% from the retrospective date of allotment amounting to Rs.13,65,525/- and was told that the location charges have been enhanced under a new policy of the year 1999. By letter dated 16th July, 1999 the appellant no. 2 demanded an amount of Rs.15,07,470/- including locational charges, lease rent and interest on difference in the amount of locational charges, followed by reminder dated 30th August, 1999. Appellant No. 2 again by letter dated 24th September, 1999 informed the respondent that not only Plot Nos. C-7 and C-8 but all 10 plots constitute a single corner plot and the respondent has to pay location charges @ Rs.90/- per square meter at the then prevailing rate of Rs.900/- per square meter, defying the terms and conditions of allotment letter and lease deed. Against this background, the respondent represented its case before the appellants by letters dated 24th May, 1999, 27th May, 1999, 08th September, 1999, 22nd October, 1999, 06th May, 2000 and 08th May, 2000 but the appellants refused to consider the request of the respondent and rejected the same. The respondent after obtaining permission from the appellants has constructed factory campus as per building maps sanctioned by the appellants and invested huge amount, therefore, to run the plant in the new building the respondent was required to obtain an enhanced electricity load, for which the U.P. Power Corporation Ltd. required a No Objection Certificate to be issued by the appellants. When the respondent requested the appellants to issue No Objection Certificate, the appellant no. 2 vide its letter dated 12th January, 2004 demanded an amount of Rs.29,35,396/-, which included an amount of Rs.1,20,000/- for the site office made on Plot No. 8 and Rs.6,37,500/- as interest thereon from 1994. Thereafter, the respondent on 02nd March, 2004 informed the appellants that Rs.1,20,000/- has been paid through demand draft No. 101733 dated 12th October, 1994 for Rs.56,42,243/- issued by Canara Bank, East of Kailash, New Delhi deposited vide Challan No. 97787 dated 12th October, 1994. The said demand draft amount included the amount of allotment money Rs.50,93,590/-, advance lease rent Rs.4,28,633/- and an amount of Rs.1,20,000/- as the cost of construction of site office on plot no. 8 allotted to the respondent as per the terms of allotment letter. It was further clarified in the letter by the respondent that all the dues including premium amount, location charges, upto date lease rent and amount for the site office have already been paid by the respondent, therefore, the demand for difference amount in location charges and interest thereon from the retrospective date of allotment should be withdrawn and No Objection Certificate be issued to the respondent. However, the appellant no. 2 vide its letter dated 16th March, 2004 refused to issue No Objection Certificate and again demanded an amount of Rs.29,35,396/- allegedly due upto 31st January, 2004 to be paid within 30 days. Thereafter the respondent again vide its letters dated 13th Apri, 2004, 27th April, 2004, 01st June, 2004 and 04th June, 2004 informed the appellants about the loss suffered on account of non-issuance of No Objection Certificate. On 12th July, 2004 the respondent sent a legal notice to the defendants. Subsequent thereto, the respondent received a letter dated 16th July, 2004 of the appellants, wherein it has been stated that it is not possible to exempt local fee payable with retrospective effect from the date of allotment of plots, therefore, the respondent was required to deposit Rs.22,69,394/- due till 31st July, 2004 within 15 days. Against this background, the respondent has filed the Original Suit No. 411 of 2004 for declaring the aforesaid demands with retrospective effect as null and void, for a prohibitory injunction against the appellants from realising the demanded amount, as stated above, and also for a mandatory injunction to the appellants to issue No Objection Certificate to the respondents to obtain enhanced electricity load.
The suit was contested by the appellants by filing a written statement, wherein formal denial of the averments made in the plaint was made. The main contention of the appellants as was before the Court below and now before this Court is that due to mistake on the part of the office of the appellants, the location charges could not be shown at the time of granting permission for amalgamation of the plots, therefore, when it was rectified subsequently, the demand has been raised and the respondent has to pay such charges. The respondent is bound to comply with the terms and conditions of the allotment letter and lease deed. Since the respondent has not deposited the amount demanded subsequently, No Objection Certificate could not be issued. The appellants have relied upon Paragraph-4 of Clause-L (Miscellaneous) of the Policies & Procedures for Industrial Property Management- May, 2002 (in short called as the "Policy, 2002"), wherein it is provided that in case where the allotment is made for more than one plot to an applicant, then for the purpose of location charges the same would be imposed on the entire area of all the plots. However, in such cases, if the allottee desires, he can get the legal documents executed separately for each plot. Existence of any policy of 1999 has been denied by the appellants before the Court below.
Ultimately, the Court below after considering of all the facts and circumstances and the evidences led before it, decreed the suit filed by the respondent vide judgement dated 18th December, 2006.
The moot point for consideration is whether the demand, as has been raised, can be raised with retrospective effect or not on the basis of a Policy framed in the year 2002, which was not in existence at the time of allotment and also when there was no other policy for the same at the time of allotment.
We have heard the learned Counsel appearing for the parties and gone through the records as well as the judgement passed by the Court below. We find that the allotment was made in the year 1994 and lease deed was executed in 1995. As per the letter of allotment, the respondent has deposited the entire amount by the year 1997. In the year 1996 permission for amalgamation of all the ten plots was also granted to the respondent by the appellants and it was clearly mentioned in the permission letter dated 19th April, 1996 that the terms and conditions of allotment shall be the same as mentioned in the allotment letter dated 13th September, 1994 and lease deed dated 01st June, 1995. In the year 1997 permission as well as No Objection Certificate was also granted by the appellants in favour of the respondents when the respondent had applied for long term project loan of Rs. 14 crores. From the date of allotment till 1999, no such demand was raised by the appellants from the respondent. All of sudden, in the year 1999 and thereafter upto 2004 the appellants raised demand for deposit of location charges, etc. at the enhanced rate on the ground that due to mistake it could not be calculated at the time of granting permission for amalgamation of plots. It appears to us that the Policy, 2002 is made for prospective use. No provision could be shown under such policy that it would be effective retrospectively. Therefore, such Policy cannot be made applicable retrospectively for the amalgamation done in the year 1996. The appellants cannot recover any local fee or interest or any other penal amount against the terms and conditions of the allotment letter and lease deed. Unless any rule is made relating to revenue clearly enforcing any policy with retrospective effect, the said policy cannot be said to have come into force with retrospective effect. Moreover, according to us, unlike the other laws, the fiscal laws are very much specific in making a claim from a person because any recovery against the law will be treated to be unjust enrichment on the part of the State or the State authority. In a case of fiscal dispute, both the authority and the assessee have to go by the mathematical precision. Similar view has already been taken by the Division Benches of this Court, presided over by one of us (Amitava Lala, J.) in the judgements reported in 2011 (8) ADJ 771 (DB) (M/s. Parsvnath Developers Ltd. Vs. Greater Noida Industrial Development Authority and another) and 2009 (3) ADJ 82 (DB) (M/s. Premium Suitings Pvt. Limited Vs. Commissioner of Central Excise, Division Kanpur).
In view of the above, we find that the judgement of the Court below, impugned in this appeal, is well considered and has been passed taking into account all the materials and evidences led before it and upon careful consideration of the same. We do not find any infirmity in the judgement and decree passed by the Court below. Hence, no relief can be granted in favour of the appellants in this appeal. Thus, the appeal is dismissed, however, without imposing any cost. Interim order, if any, stands vacated.
(Justice Amitava Lala, ACJ) I agree.
(Justice Ashok Srivastava) Dated:08th November, 2012.
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Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Ashok Srivastava, J.
Under the authority of the Hon'ble Acting Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 12.55 P.M. in the Court upon notice to the parties.
The appeal is dismissed, however, without imposing any cost.
Dt./- 08.11.2012.
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For judgement and order, see order of the date passed on the separate sheets (seven pages).
Dt./-08.11.2012.
SKT/-