[2011] 7 S.C.R. 66

ITC LTD.

STATE OF UTTAR PRADESH & ORS.

(Civil Appeal No. 4561 of 2008)

JULY 5, 2011

[R. V. RAVEENDRAN AND

B. SUDERSHAN REDDY, JJ.]

Uttar Pradesh Urban Planning and Development Act, c 1973:

s.41(3) rlw ss.12 and 14 -Allotment of commercial plots in commercial area for construction of 5 star, 4 star and 3 star hotels on 90 years lease - Plots allotted at industrial rates - D Later on, allotments cancelled as the same were made without following the procedure of auction, and the allotment on fixed industrial rates caused loss to government exchequer - HELD: Under private law, a lease governed exclusively by the provisions of Transfer of Property Act could E be cancelled only by filing a civil suit for its cancellation or for a declaration that it is illegal, null and void and for the consequential relief of delivery back of possession - Where the grant of lease is governed by a statute or statutory regulations, and if such statute expressly reserves the power of cancellation or revocation to the lessor, it will be F permissible for an Authority, as the lessor, to cancel a duly executed and registered lease deed, even if possession has been delivered, on the specific grounds of cancellation provided in the statute - In the instant case, NO/DA is a statutory authority and it has not alleged or made out any G default in payment or breach of conditions of the lease or breach of rules and regulations - Nor is it the case of NO/DA that any of the allottees is guilty_ of any suppression or misstatement of fact, misrepresentation or fraud - Therefore, the allotment of commercial plots by NO/DA to the allottees H 66

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 67

for setting up hotels is valid -There is no violation of the A regulations or policies of NO/DA in allotting commercial plots for hotels - Therefore, cancellation of allotment is unsustainable.

ss. 41(3) - Allotment of plots - Cancellation of- HELD: 8 When valuable rights had vested in the a/lottees, by reason of the allotments and grant of leases, such rights could not be interfered with or adversely affected, without a hearing to the affected parties - Natural justice - Opportunity of hearing.

Administrative Law: c

Allotment of commercial plots for hotels - Cancellation order - Judicial review of - HELD: In the instant case, the allotments of plots for hotel projects were challenged in writ petitions and in compliance with the direction of the High D Court, the state government had a relook at the matter and found some irregularities in allotment - The decision of the state government in revision, is not based on any different policy, but based on its finding that the existing regulations and policies of NO/DA were violated - The policy of the state E government cannot override the NO/DA Regulations - If any policy is made, intending to give different meaning to the words 'commercial use' and 'industrial use', that can be given effect only if the regulations are suitably amended - The fact that the tourism or hotels have been given the status of 'industry' F will not convert them into industries, for the purpose of allotment of plots, nor will the use of land by such tourism or hotel industry, will be an industrial use - Allotment of plots for hotels in a commercial area is wholly in consonance with the NO/DA Regulations and Master plan which earmarks areas for specific land uses like industrial, residential, G commercial, institutionaI, public, semi-public, etc - Therefore, the allotment of plots situated in commercial areas earmarked for commercial use, to hotels did not violate any provisions of the Act or the NO/DA Regulations - NO/DA (Preparation H

A and Finalisation of Plan) 1991 Regulations, 1991 - Policy dated 22.5.2006 of Government of Uttar Pradesh - Uttar Pradesh Urban Planning and Development Act, 1973.

Public law - Breach of statutory provisions or procedural

8 irregularities - Allotment of plots for hotels on 90 years lease

- Cancellation of - Remedial action - Explained.

TOURISM:

Running a hotel/boarding house/restaurant - HELD: Is c a commercial activity - By no stretch of imagination, use of a plot for a hotel can be considered as use of such land for an industrial purpose - It was not necessary for NO/DA to change the land use of plots_ to be allotted to hotels, from commercial to industrial use.

D Urban Development:

Allotment of commercial plots for 5 star, 4 star and 3 star hotels - Requirement of inviting tenders - Commercial plots in commercial area allotted at fixed industrial rate without E inviting tenders - HELD: Allotment of commercial plots is governed by the NO/DA Policies and Procedures for Commercial Property Management, 2004 - Under the said policy, commercial properties of NO/DA can be allotted only on sealed tender basis or by way of public auction - The F allotment of commercial plots at fixed rate was, therefore, clearly contrary to the said regulations of NO/DA - The failure to follow the procedure prescribed in the NO/DA Commercial Property Management Policy is a violation of the policy and such violation has resulted in loss to the public exchequer - G Therefore, the state government can certainly interfere under its revisiona/ jurisdiction - As the allotment is of commercial plots governed by NO/DA Commercial Property Management Policy, and as the reserve rate itself was Rs.300001per sq.m., allotment at Rs. 7,400 per sq.m. caused loss and violated the H regulations and policy of NO/DA - However, the violation

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 69

occurred on account of a mistake on the part of the officers A of NO/DA in misinterpreting the government policy dated 22.5.2006 - The a/lottees are given the option to continue their respective leases by paying the premium (allotment rate) at Rs. 70,0001per sq.m. (with corresponding increase in yearly rent/one time lease rent}, without any location benefit charges 8

- NO/DA Policies and Procedures for Commercial Property Management, 2004 - Uttar Pradesh Urban Planning and Development Act, 1973 - s.41.

Words and Phrases:

Expression 'industry' used in the context of tourism/hotel

- Connotation of.

Keeping in view the Common Wealth Games 2010 and pursuant to a meeting with the Secretary, Sports and o Youth Affairs, Government of India, the NOIDA, on 17.10.2006, invited applications for allotment of plots of industrial land at industrial rates of Rs. 7,4001per sq. mts. plus location charges for 5 star, 4 star and 3 star hotels on 90 years lease ha.sis. Allotments of 9 plots for 5 star E hotels 2 plots for 4 star hotel and 3 plots for 3 star hotels were made on 12.01.2007. The Government scheme dated 22.05.2006 was approved on 05.06.2006 and the lease deeds were registered in two cases and in other cases, the registration was kept pending on the ground of under valuation stating that as against circle rate of F Rs.70,0001per sq. mt., the premium for the sale was only Rs. 7,400 per sq. mts. Writ petitions were filed in the High Court on the ground that the allotment of the said plots was at a very low price. Pursuant to the direction of the High Court to the State Government to exercise its power G of revision u/s.41(3) read with s.12 of the U. P. Urban Planning and Development Act, 1973, the Government concluded that the allotments made were irregular for (i) allotments of commercial plots had been made for H

A industrial purposes at industrial rates without getting the

land use changed from commercial to industrial in accordance with the regulations and without obtaining the consent of the state government; and (ii) the plots earmarked for commercial use in a commercial area were B allotted at rates applicable to industrial plots, without

calling for competitive bids/tenders and without the permission of the state government. It, therefore, directed on 01.08.2007 NOIDA to cancel the allotments and initiate action against the officers of NOIDA responsible for the c irregularities. Consequently, the NOIDA issued

cancellation letters dated 3.8.2007 canceling the allotments and consequential leases granted in favour of the appellants; and the said writ petitions were dismissed as withdrawn.

D The allottees filed writ petitions before the High Court challenging the cancellation of allotment of plots and the leases by communications dated 3.8.2007. A Division Bench of the High Court allowed the writ petitions. It quashed the order dated 1.8.2007 of the State E Government and the cancellation orders dated 3.8.2007 passed by NOIDA on the ground that they were opposed to principles of natural justice for want of opportunity of hearing as required under proviso to s.41(3) of 1973 Act.

The High Court, therefore, remanded the matters to the F State Government for taking decision afresh.

In the instant appeals filed by the allottees, it was contended for the appellants that the High Court, having quashed the order of the State Government dated G 1.8.2007 and the consequential orders of cancellation

dated 3.8.2007 passed by NOIDA, ought to have upheld the allotments and the leases and should not have remanded the matter to the state government for consideration.

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 71

On 9.7.2008 the Court directed status quo regarding A possession. On 18.7.2008 the Court, while granting stay of dispossession of the appellants from the respective sites allotted to them, directed the State Government to give a hearing to the appellants and pass a reasoned order in accordance with law. The state government B accordingly passed individual orders dated 8.9.2008 in the case of each of the appellants, holding that the allotment of plots to them was bad. It cancelled the allotments and directed action to be taken against the erring officers of NOIDA. c

 The questions for consideration before the Court were: (1) "Where allotment has been followed by grant of a lease (which is duly executed) and delivery of . possession in favour of the less-ee, whether the leases could be unilaterally cancelled by the lessor?" (2) D "Whether the cancellations were on account of change in policy as a consequence of change of government, or on account of new government's desire to nullify the actions of previous government?" (3) "Whether the allotments of plots to appellants suffer from any E irregularity or illegality?"

Disposing of the appeals, the Court

HELD: 1. The High Court rightly set aside the orders dated 1.8.2007 of the State government, because no hearing was given to the appellants as required u/s 41(3)

of the 1973 Act. Even otherwise, when valuable rights had vested in the allottees, by reason of the allotments and grant of leases, such rights could not be interfered with or adversely affected, without a hearing to the G affected parties. The High rightly directed the state government to decide the matter afresh after hearing the appellants. This court reiterated the said direction in its interim order dated 18.7.2008. Therefore, there is no need to interfere ith the final order of the High Court. [para H

A 16) (107-C-D-F-G]

Whether completed lease can be cancelled:

2.1. Two lease deeds have been duly registered. In regard to other lease deeds, which were presented for B registration, though there is no objection for registration, registration formalities are kept pending in view of a demand by the registration authorities for deficit stamp duty and registration charges on the basis of circle rate and the issue is pending before the registration officer C concerned or in cpurt. As far as NOIDA is concerned, execution and registration of the leases were complete.d, and, consequently, possession of the plots was delivered to the allottees/lessees in April and May, 2007. Each appellant has also incurred considerable amount for D preliminary expenditure for the hotel project (in addition to the premium, location benefit charges, rent, stamp duty and registration charges) as they were expected to execute the projects in a time bound manner. [para 19]

[110-H; 111-A-D] E 2.2. Under private law, a lease governed exclusively by the provisions of Transfer of Property Act, 1882 could be cancelled only by filing a civil suit for its cancellation or for a declaration that it is illegal, null and void and for the consequential relief of delivery back of possession.

F Unless and until a court of competent jurisdiction grants such a decree, the lease will continue to be effective and binding. Unilateral cancellation of a registered lease deed by the lessor will neither terminate the lease nor entitle a lessor to seek possession. This is the position under G private law. [para 21) [111-G-H; 112-A]

2.3. But, where the grant of lease is governed by a statute or statutory regulations, and if such statute expressly reserves the power of cancellation or H revocation . to the lessor, it will be permissible for an

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 73

Authority, as the lessor, to cancel a duly executed and A registered lease deed, even if possession has been delivered, on the/ specific grounds of cancellation provided in the statute. [para 22] [112-B]

2.4. In the instant case, NOIDA is an authority 8 constituted under the Uttar Pradesh Industrial Area Development Act, 1976, for development of an industrial and urban township (also known as Noida) in Uttar Pradesh under the provisions of the Act. Section 7 empowers the authority to sell, lease or otherwise C transfer whether by auction, allotment or otherwise, any land or building belonging to it in the industrial development area, on such terms and conditions as it may think fit to impose, on such terms and conditions and subject to any rules that may be made. Section 14 empowers the Chief Executive Officer of the Authority to D resume a site or building which had been transferred by the Authority and forfeit the whole or part of the money paid in regard to such transfer, in the following two circumstances : (a) non-payment by the lessee, of consideration money or any installment thereof due by E the lessee on account of the transfer of any site or building by the Authority; or b) breach of any condition of such transfer or breach of any rules or regulations made under the Act by the lessee. Thus, if a lessee commits default in paying either the premium or the lease F rent or other dues, or commits breach of any term of the lease deed or breach of any rules or regulations under the Act, the Chief Executive Officer of NOIDA can res1, Jme the leased plot or building in the manner provided i~ the statute, without filing a civil suit. The authority to resume G implies and includes the authority to unilaterally cancel the lease. [para 23] [112-C-H; 113-A]

2.5. NOIDA has not alleged or made out any default in payment or breach of conditions of the lease or breach H

A of rules and regulations. Nor is it the case of NOIDA that any of the appellants is guilty of any suppression or misstatement of fact, misrepresentation or fraud. Neither the cancellation of the allotment and the lease by NOIDA by letter dated 3.8.2007, nor the orders dated 1.8.2007 or B 8.9.2008 made by the state government refer to any of these grounds. Therefore, the allotment of commercial plots by NOIDA to the appellants for setting up hotels is valid. There is no violation of the regulations or policies of NOIDA in allotting commercial plots for hotels. c Therefore, cancellation of allotment is unsustainable. The cancellation cannot be sustained with reference to the grounds mentioned in s. 14 of the Act. The grounds mentioned for cancellation are mistakes committed by NOIDA itself in making allotments and fixing the premium,

0 in violation of the Regulations and policies of NOIDA by officers of NOIDA. These are not grounds for cancellation u/s 14 of the Act. [para 25 and 58] [113-F-H; 114-A; 141- D]

2.6. Section 41 (3) of the U.P. Urban Planning and E Development Act, 1973 shows that the State government, can examine the legality or propriety of any order of NOIDA and pass appropriate orders. If the state government in exercise of its revisional jurisdiction finds the allotments were irregular or contrary to the F regulations or policies of NOIDA and directs cancellation,

the allotments become invalid and leases also become invalid. Consequently, NOIDA can resume possession, without intervention of a civil court in a civil suit. [para 27]

[116-B-D]

State of Haryana vs. State of Punjab - 2002 (1) SCR 227 = 2002 (2) sec 507 and State of Karnataka vs. All India Manufacturers Organisation - 2006 (1) Suppl. SCR 86 = 2006 (4) sec 683 - held inapplicable.

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 75

Whether cancellation was on account of change in A Government?:

3.1. This is not a case where as a consequence of change in government, the new government has reviewed the decision relating to hotel site allotment, 8 merely because it was a decision of the previous government. Nor is it a case of new policy of the new government being at variance with the policy of. the previous government. In the instant case, the allotments of plots for hotel projects were challenged in two writ C petitions and in compliance with the direction of the High Court, the state government had a relook at the matter, found some irregularities in allotment and, by letter dated 1.8.2007, directed NOIDA to take action to remedy the irregularities found in the allotments. The orders dated 8.9.2008 were made in view of the final order of the High D Court and the interim order of this Court directing reconsideration. The decision of the state government in revision, is not based on any different policy, but based on its finding that the existing regulations and policies of NOIDA were violated. [para 29] [118-B-D-G-H] E

Whether the allotments violate the regulations/policies of

NOIDA?

4.1. In the instant case, no amendment was made changing the land use of the plots in question from commercial to industrial. The state government on examination of all the facts in its revisional jurisdiction found that the hotel plots allotted to appellants were part

of Sectors 96, 97 and 98 (for five star plots) and other sectors (for plots for 4 star and 3 star hotels) which were G earmarked for commercial use under the NOIDA Master Plan. It was of the view that in view of tourism/hotels being declared as an "industry" and the government policy requiring allotment of plots for tourism/hotels at industrial rates,. if any plot had to be allotted for a hotel, H

A the land use of the said plot had to be changed to

industrial use in the Master plan by adopting the prescribed procedure under the regulations, before making the allotment. It was also of the view that if the plots were allotted for hotel industry, then the B construction should be as per the NOIDA building

regulations and directions applicable to industries in regard to FAR, ground coverage, height, setbacks, construction of building etc. It was also of the view thJt if plots in commercial areas are to be allotted it could be c only in accordance with the NOIDA Commercial Property Management Policy which required all commercial plots to be allotted on sealed tender or public auction basis.

As NOIDA did not alter the land use of the plots in question from commercial use to industrial use in the

0 Master Plan nor did it amend the definitions of

commercial use and industrial use in the 1991 Regulations so that hotels would no longer be a commercial use, but an industrial use, the state government held that statutory regL.lations and directives E of NOIDA had been violated in making the hotel plot

allotments. [para 31] [120-D-H; 121-A] ·

Whether plots earmarked for commercial use in commercial area could be allotted for hotels?:

F 5.1. The NOIDA Building Regulations and Directions of 2006 make it clear that FAR and the permissible height of the building is far more advantageous in the case of commercial hotel buildings when compared to industrial buildings. It may be mentioned that even when the 1986 G Building Regulations were in force till 4.12.2006, the provisions for FAR and height of building were far more advantageous to commercial buildings, when compared to industrial buildings. [Para 36] [126-E-F]

5.2. Running a hotel or boarding house or a H

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 77

restaurant is a commercial activity and use of a land or A building for hotel is commercial use. By no stretch of imagination, use of a plot for a hotel can be considered as use of such land for an industrial purpose. An industrial building is defined in Regulation 3.12(e) of the 2006 Building Regulations as a building in which B products or materials of all kinds and properties are manufacture, fabricated, .assembled or processed. As per the 1991 Regulations, use for a hotel is a commercial use. [para 37) [126-F-H]

5.3. Having regard to the provisions of the NO.IDA c

(Preparation and Finalisation of Plan) 1991 Regulations, 1991 use of land for hotel cannot be considered as an industrial use, but will continue to remain a commercial use. The policy of the state government dated 22.5.2006 cannot override the NOIDA Regulations. If any policy is D made, intending to give different meaning to the words 'commercial use' and 'industrial use', that can be given effect only if the regulations are suitably amended. [para

38] [127-F-G] E 5.4. When tourism is given the status of an industry, it does not mean tourism involves manufacturing, fabrication, processing or assembling, but it refers to a service industry. By giving the status of 'industry', the

policy enabled a particular service activity (iii the instant F case tourism and hotels) to secure certain benefits in allotment of land at concessional prices and certain tax exemptions. Therefore, the fact that the tourism or hotels

have been given the status of 'industry' will not convert them into industries, for the purpose of allotment of plots,· G nor will the use of land by such tourism or hotel industry, will be an industrial use. It does not also mean that all the hotels and tourist offices should be shifted from commercial areas to industrial areas or that hotels or tourist offices cannot operate in commercial areas, or that H

A they cannot get allotment of land or building earmarked for commercial use. Allotment of plots for hotels in a commercial area is wholly in consonance with the NOIDA Regulations and Master plan which earmarks areas for specific land uses like industrial, residential, commercial, B institutional, public, semi-public, etc. Therefore, the allotment of plots situated in commercial areas earmarked for commercial use,. to hotels did not violate any provisions of the Act or the NOIDA Regulations. It was not necessary for NOIDA to change the land use of c plots to be allotted to hotels, from commercial to industrial use. [para 39-40] [127-H; 128-B-H]

Whether allotment of hotel sites by NOIDA should have been by inviting tenders/holding auctions?

D 6.1. Allotment of commercial plots is governed by the NOIDA Policies and Procedures for Commercial Property Management, 2004. Under the said policy, commercial properties of NOIDA can be allotted only on sealed tender basis or by way of public auction. For \his purpose NOIDA E has to fix a reserve rate and the person who gives the highest bid/offer above the reserve rate, who is otherwise eligible, is allotted the plot. The said policy in regard to the procedure for allotment of commercial properties was not amended or modified to provide for allotment of F commercial properties for hotels at fixed prices. The allotment of commercial plots at fixed rate was, therefore, clearly contrary to the said regulations of NOIDA. [para

44] [131-F-H; 132-A]

Home Secretary v. Darshj!t Singh Grewal 1993 (4) SCC G 25 - relied on

Brij Bhusan vs. State of Jammu & Kashmir - 1986 (2) SCC 354, Sachidanand Pandey vs. State of West Bengal 1987 (2) SCR 223 =1987 (2) SCC 295, and MP Oil Extraction

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 79

vs. State of MP 1997 (1) Suppl. SCR 671 = 1997 (7) SCC A 592 - distinguihsed

6.2. The state government policy dated 22.5.2006 or its adoption by tJOIDA on 5.6.2006 did not amend to the regulations, instructions, policies and procedures of B NOIDA. If the said Tourism/Hotels development policy dated 22.5.2006 contained any procedure which was at variance with the existing regulations or procedures of NOIDA; such procedures in the policy dated 22.5.2006 could come into effect only by NOIDA amending its C

regulations and Property Management Policies. As per the 1991 Regulations ahd 2006 Building Regulations, hotel buildings are commercial buildings and use of land for hotels is commercial use and any plot allotted for hotels is a commercial property. Therefore, any allotment D of a plot for hotels should comply with the NOIDA Commercial Property Management Policy, 2004. Unless the said Policy was amended, providing for allotment at fixed rates, in regard to any sub-category of commercial plotS, allotment of a commercial property belonging to NOIDA otherwise than by sealed tender basis or auction E basis will be an allotment in violation of and contrary to, the regulations directives and policies of NOIDA. [para 48]

[134-D-G]

6.3. The failure to follow the procedure prescribed in F the NOIDA Commercial Property Management Policy is a violation of the policy and such violation has resulted in loss to the public exchequer. The violation of the regulations and policies of NOIDA may be unintentional and a bonafide mistake on account of a mis-reading of G the requirement of the policy dated 22.5.2006.

Nevertheless it is a violation. If there is a violation of the regulations and policies of NOIDA in making allotments, the state government can certainly interfere under its revisional jurisdiction. [para 49-50] [135-A-F-G] H

A (cl Whether the rate charged was erroneous and has led to any loss?

7.Mere earmarking of particular land for allotment to hotels which is a commercial activity at industrial plot

8 prices, does not mean there is a loss in respect of an amount equal to the difference between the rate of commercial plots and rate of industrial plots. Any decision to allot plots to hotels at industrial rates, by itself, did not cause any loss, as such a decision was intended to be an incentive to attract investment.

But there will be a c 'IOSS' I if a plot Which is earmarked for Commercial USe,

allotted for a commercial purpose, which is required to be allotted at commercial rates by tender or auction, is erroneously charged either at a residential plot rate or an industrial plot rate. The regulations and policies of NOIDA D require the allotment of commercial plots to be by sealed

tender or by public auction. As the allotment is of commercial plots governed by NOIDA Commercial Property Management Policy, and as the reserve rate itself was Rs.30000/- per sq.m. it has to be held that E allotment at Rs.7,400 per sq.m. caused loss and violated

the regulations and plicy of NOIDA. [para 53 and 55]

[138-D-F; 139-C-E-F]

IV. What should be the consequence of the violation?

8.1. The violation occurred on account of a mistake on the part of the .officers of NOIDA in misinterpreting the government policy dated 22.5.2006, which has resulted in lesser allotment price. The allottees were in no way to be blamed for the mistake. Nor were the allottees guilty G of any suppression, misstatement or misrepresentation of facts, fraud, collusion or undue influence in obtaining the allotments at Rs. 7,400/- per sq.m. According to respondents, the rate of premium ought to have been Rs.70,000/- per sq.m. being the market rate, even though H the reserve rate was only Rs.30,000/- per sq.m. The

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 81

mistake was found out by the state government, in A exercise of revisional jurisdiction. But by "then the allotment was followed by payment of premium, execution of the lease deed, and delivery of possession.

By the time the state government decided that the allotment should be cancelled the transaction was B complete in all respects. The fact that the registration of some of the leases was kept 'pending' in view of a dispute relating to valuation would not be relevant for this purpose. [para 58) [141-E-G]

8.2. In public law, breach of statutory provisions, c

procedural irregularities, arbitrariness and mala fides on the part of the Authority (transferor) will furnish grounds to cancel or annul the transfer. But before a completed transfer is interfered on the ground of violation of the regulations, it will be necessary to consider: whether the D transferee had any role to play (fraud, misrepresentation, undue influence etc.) in such violation of the regulations, in which event cancellation of the transfer is inevitable.

If the transferee had acted bona fide and was blameless, it may be possible to save the transfer but that again E would depend upon the answer to the further question as to whether public interest has suffered or will suffer as a consequence of the violation of the regulations:

(i) If public interest has neither suffered, nor likely to F suffer, on account of the violation, then the transfer may be allowed to stand as then the violation will be a mere technical procedural irregularity without adverse effects.

(ii) On the other hand, if the violation of the G . regulations leaves or likely to leave an everlasting adverse effect or impact on public interest (as for example when it results in environmental degradation or results in a loss which is not reimbursable), public interest should prevail and the H

transfer should be rescinded or cancelled.

(iii) But where the consequence of the violation is merely a short-recovery of the consideration, the transfer may be saved by giving the transferee an opportunity to make good the short-fall in consideration. [para 63.1] [145-F-H; 146-A-D]

8.3. If the government or its instrumentalities are seen to be frequently resiling from duly concluded solemn transfers, the confidence of the public and C international community in the functioning of the government will be shaken. To save the credibility of the government and its instrumentalities, an effort should always be made to save the concluded transactions/ transfers wherever possible, provided (i) that it will not D prejudice the public interest, or cause loss to public exchequer or lead to public mischief, and (ii) that the transferee is blameless and had no part to play in the violation of the regulation. [para 63.2] [146-E-G]

E 8.4. If the concluded transfer cannot be saved and has to be cancelled, the innocent and blameless transferee i..ould be reimbursed all the payments made by him and all expenditure incurred by him in rgard to the transfer with appropriate interest. If some other relief can be granted on grounds of equity without harming F public interest and public exchequer, grant of such equitable relief should also be considered. [para 63.3]

[146-H; 147-A-B]

Syed Abdul Qadir vs. State of Bihar 2008 (17) SCR 917 G = 2009 (3) sec 475 - relied on.

8.5. In the instant case, the allotment of commercial plots to appellants is valid and legal. The violation is in making such allotment on fixed allotment rate which is H less than the rate the plots would have fetched by calling

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 83

for tenders or by holding auctions. The violation of the A 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. According to the State Government, the commercial plots would have fetched a B premium at rate of Rs.70,000 per sq.mat the relevant time (October 2006 to January 2007) and NOIDA had been denied the benefit of that allotment rate, by reason of allotment of the plots at Rs.7400/- per sq.m. Therefore, the equitable solution is to give an opportunity to the lessees c to pay the difference thereby in consideration which arose on account of wrong interpretation instead of cancelling the leases and if the appellants are wiling to pay the balance of premium as claimed by respondents, . the leases need not be interfered; [para 65-661 [148-B-G] 0 8.6. Therefore, if the appellants (2006-2007 allottees) are to be extended the benefits offered to allottees under the 2008 scheme, the rate of Rs.70,000/- per sq.m. (the rate of 2008 scheme was 10% more than Rs.70,000/- per sq.m.) claimed by the respondents becomes logical and E reasonable. Therefore, there is no reason to reject the claim of respondents that the allotment rate should be Rs.70,000/- per s.q.m. The appellants are granted an opportunity to save the leases by paying the difference in premium at Rs.62600/- per sq.m. to make it upto F Rs.70,000/- per sq.m. [para 69] [151-D-F]

(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 G cancellation of allotment of plots dated 3.8.2007 by NOIDA, 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 sq.m. (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 benefits which has been extended in regard to the allottees under 2008 allotment scheme of NOIDA:

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 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 shall return all amounts paid by such appellant to NOIDA 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. If NOIDA returns the amount to the appellant within 31.12.2011, the rate of interest payable by NOIDA shall be only 11% per annum instead of 18% per annum. [para 70] [151-

G-H; 152-A-C-E-H; 153-A-C]

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 85

Case Law Reference: A

2002 (1) SCR 227 held inapplicable para 28

2006 (1 ) Suppl.SCR 86 held inapplicable para 28

1986 (2) cc 354 distinguished para 42 B

1987 (2) SCR 223 distinguished para 42

1993 (4) sec 25 distinguished para 47

1997 (1) Suppl. SCR 671 distinguished para 52

2008 (17) SCR .917 distinguished para 64 c

CIVIL APPELLATE JURISDICTION : Civil Appeal No . . 4561 of 2008.

From the Judgment & Order dated 13.5.2008 of the High D Court of Judicature at Allahabad in SLP No. 15375 of 2008.

WITH

C.A. Nos. 4562, 4563, 4564, 4565, 4566, 4567, 4566, 4569, 4570, 4571, 4572 & 4968 of 2008.

Gopal Subramanium, SG, T.R. Andhyarujina, Harish N.

Salve, Ranjit Kumar, Maninder Singh, P.P. Rao, S.K. Agarwal, K.K. Venugopal, Satish Chandra Mishra, Ratnakar Dash, Ravinder Srivastava, Fakhruddin, Harish Malhotra, Shail Kumar F Dwivedi, AAG, L.K. Bhushan, Swaty Malik (for Dua Associates), Ruby Singh Ahuja, Meenakshi Grover, Manu Aggarwal, Abeer Kumar, R.N. Karanjawala, _Manik Karanjawala, Simran Brar, Vedanta Verma (for Karanjawala & Co.), Abhinav Mukerji , Gaui'av Sharma, Surbhi Mehta, Bindu Saxena, Aparajita Swarup, Shailendra Swarup, Neha Khattar, D. Bhadra, Hashmi, G Ravinder Agarwal, Arun K. Sinha, Rakesh Singh, Sumit Sinha, Dheeraj Malhotra, Aslam Ahmed, Babit Singh Jamwal, Gagan Gupta, D. Bhattacharya, M.K. Singh, Pramod B. Agarwala, Rajul Shrivastav, Abhishek Baid, Antara, Ameet Singh,

A Pareena Swarup, Praveen Swarup D. Mehta, Ameet Singh,

Nikhil Majithia, Anuvrat Sharma, M.K. Choudhary, Tanuj Khurana, S.K. Verma, R.K. Yadav, Ashutosh Srivastava for the appearing parties.

B The Judgment of the Court was delivered by

R.V.RAVEENDRAN, J. 1. The appellants in these appeals are the lessees of plots allotted by the New Okhla Industrial Development Authority (for short 'the Authority' or 'NOIDA') for construction of 5 star, 4 star and 3 star hotels in C Noida, District Gautam Budh Nagar, Uttar Pradesh. The said Authority was constituted under the provisions of the

U.P.lndustrial Area Development Act, 1Q76 ('Act' for short) for development of an Industrial and Urban Township of Noida in Uttar Pradesh, neighbouring Delhi.

2. Tourism was granted the status of an "industry" by the state government during 1997-98, by extending certain concessions and facilities available to industries. However as tourism •. in particular hotel industry, had not received the required encouragement, the state government with the intention E of attracting capital investment in tourism industry came up with a policy, as per its communication dated 22.5.2006 addressed to the Director General of Tourism, Uttar Pradesh. Relevant portions of the said policy are extracted below :

(1) Land should be earmarked for hotels by the concerned Development Authorities while preparing the Master Plan with the cooperation of the Tourism Department and such land should be provided for hotels. Where the Master-Plan stands finalized. the said procedure has to be followed in respect of surplus land. In regard to Development Authorities which have not finalised the Master Plan, steps may be taken for reserving land for hotels to the extent possible, near tourist spots/places of tourism with the assistance of the Tourism Department.

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 87 -·-~·.

[R.V. RAVEENDRAN, J.]

Whenever the Master Plans of Authorities are A revised, the land should be earmarked for hotels with the assistance of the Tourism Department. The

lands earmarked will be kept reserved for tourism/ hotels for five years from the date of publicizing the scheme. If no hotel entrepreneur comes forward in B five years, the authority shall be free to alter its land

use.

(2) If change in land use by the Authority is necessary for giving the earmarked plot to hotel industry, such c change in land use shall be done by the Authority in accordance with the rules and the prescribed procedures on a 'case to case' basis by the competent authority.

(3) D

(4) xxxxx

(5) Since Tourism including Hotels, has been given the E status of Industry, in regard to hotels also plots shall be earmarked as in the case of industries, and shall be allotted at industrial rates as in the case of industrial plots. This policy shall be implemented in every district of the State.

(6) xxxxx

(7) They shall be given cent-percent rebate in Sukh Sadhan Tax for five years from the date of starting of new hotels. Other concessions shall be G admissible as per industrial policy.

(8) The earmarked land for Hotel industry, shall be allotted only to Tourism entrepreneurs.

(10) Land shall be made available to hotel entrepreneurs

by all Authorities including the Housing and Industrial Development Departments, at industrial rates. To ensure that hotel entrepreneurs may get the benefit of this provision, all the above Authorities 8 shall ensure the necessary arrangements/ amendment in their rules so that it may be possible to rr.ake available the land to hotel entrepreneurs on industrial rates.

(11) Only in areas where there are Authorities, the estimation of category wise requirement, determination of number of plots and star category wise determination of hotels will be made by the concerned Authorities. In other areas the Tourism

D Department shall assist in this exercise.

xxxxx

(15) After earmarking the land for hotels, applications

will have to be invited for allotment to hotel/tourist

E entrepreneurs on industrial rates. The condition of eligibility for applicant shall be as follows:- x x x

(16) Where there is industrial lands, and more than one applicant, the Development Authorities shall allot the industrial land on the basis of suitability F of the applicants, in accordance with the current procedure."

(emphasis supplied)

3. At the 135th meeting of the Board of Directors/Members G of NOIDA (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 H area (Phase I) to the plots to be allotted to the hotel industry.

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 89

[R.V. RAVEENDRAN, J.]

The rate referred was the reserve rate of Rs.7400/- per sq.m.

A applicable to Industrial Area (Phase I) plots, fixed by the NOIDA Board at its meeting held on 20.3.2006. 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 B 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. c

4. At a meeting held by the Circle Commissioner, Meerut on 2.7.2006 with officials of NOIDA, 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 sq.m. for 5 star hotels in Sectors 96, 97 and 98; (b) five .plots each mesuring 20000 sq.m. for 4 star hotels in Sectors 72, 101, 105, 124 and 135; and ( c) three plots for 3 star hotels (measuring 20000, 20000 & 10000 sq.m.) in Sectors 62, 63, and 142. 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 G 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

A 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 sent a communication dated 20.7.2006 to the State Government seeking approval of its decision to make a provision for hotels in commercial

8 areas under Zone 3 and inclusion of it in NOIDA Master Plan, 2021.

5. The Secretary, Sports & Youth Affairs, Government of India, held meetings with NOIDA officials on 28.7.2006 and 22.8.2006 in connection with preparations for Commonwealth C 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 sq.m. (instead of 40,000 sq.m. earlier proposed), the D area of 4 star hotels to 12500 sq.m. (instead of 20000 sq.m.) and the area of 3 star Hotels to 7500 sq.m. (instead of 10000 sq.m.) and thereby convert the 14 plots into 25 plots made up of 10 plots for 5 star hotels, 5 plots for 4 star hoteils and 10 plots for 3 star hotels. At the meeting held on 28.8.2006 under E 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 sq.m. 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.SOC/ G 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 sq.m. each)

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 91

[R.V. RAVEENDRAN, J.]

Plot No.SDC/H-1 in sectors 72, 103, 105 and 135 A and plot No.124A/1 in sector 124.

(iii) Ten plots for 5 star hotels : (area 24.000 sq.m.)

Plot Nos.H-1 to H10 in sectors 96, 97 and 98.

The proposal for approving the increase in number of plots and reductions in their size was placed before 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 c should provide for obtaining Hotel Completion Certificate by December 2009 (with authority to CEO to grant extension of time). ·

6. In pursuance of the said decision, NOIDA published the Hotel Site Allotment Scheme on 17.10.2006, by D 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 E till 10.11.2006). We extract below the relevant information from the Brochures. The following eligibility criteria were prescribed:

Eligibility criterion for selection (extracted from clauses 8 to 11 of Brochures) F

Minimum experience in 10 years for 5 star and 4 star; 5 Hotel business years for 3 star Average turnover during Rs.100 crores, Rs. 75 crores & the last three years Rs.50 crores respectively for five star, four star and three G

star,

Net worth Positive

Allotment of hotel sites among the eligible applicants shall H

be done on the basis of their experience, turnover and net worth. Allotment of hotel site to the eligible applicants shall be made in descending order, of the plot applied for, on the basis of their evaluation. In case same marks are obtained by more than one applicant, then allotment amongst them shall be made on the basis of draw of lots.

For each hotel that has a tie up/collaboration with international chain of hotels or in case the applicant company/institution is itself an international chain, then three additional marks shall be awarded for each hotel in the 3/4/5 star and above/equivalent rating category owned/ managed by the applicant.

"Rate of Allotment, that is premium payable (Clause 13 of the Brochure)

(a) The current rate of allotment is Rs.7,400/- (Rupees

Seven Thousand Four Hundred Only) per square metre. ·

(b) Besides, Location benefit charges as stated below shall be charged in addition to above allotment rate at the following rates :-

(i). 2.5% of above rate if plot is on 18 mtr. but less than 30 mtr. wide road.

' (ii) 5% of above rate if plot is on a road having width of 30 mtr. or above.

(iii) 2.5% of above rate if plot is facing/abutting green belt or park.

(iv) 2.5% of above rate if plot is a corner plot.

The maximum location charges would not exceed

10% of the total allotment amount of the plot.

H (c) The land rate stated above is subject to change

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 93

[R.V. RAVEENDRAN, J.]

without giving any notice. The rate prevailing on the A date of issue of allotment letter would be applicable."

Payment of annual rent : (extracted from clause E in the Brochures) B

In addition to the amount paid/payable for the allotment of plot, allottee shall have to pay yearly lease rent in the manner given below :

(a) The lease rent will be 2.5% of the total amount paid for the plot and will be payable annually.

(b) On expiry of every ten years from the date of execution of the lease deed, lease rent would be enhanced by 50% of the annual rent payable at the time of such enhancement.

xxxxxx

(e) Allottee has the option to pay lease rent equivalent to 11 years of the current lease rent as "One Time Lease Rent" unless the Authority decides to withdraw this facility. On payment of One Time Lease Rent, no further annual lease rent would be required to be paid for the balance lease period.

This option may be exercised at any time during the lease period, provided the allottee has paid the earlier lease rent due and lease rent already paid will not be considered in One Time Lease Rent option."

Norms of development (extracted from Clause (I) in the Brochures):

(a) Ground coverage and floor area ratio is as under : Maximum ground coverage 25% [for 5/4 star] 30% [for 3 star]

A Maximum FAR 2 [for 5/4 star] 1.5 [for 3 star] Maximum height & set backs as per building bye-laws

(b) Other norms: B i. 5% of the FAR can be used for Commercial space.

ii.

Basement below the ground floor to the maximum extent of ground coverage shall be allowed and if c use for parking and services would not be counted in the FAR. Basement used for parking will be permitted upto the setback line of the plot. n

"Transfer (Clause J of the Brochures)

D 1.

The allotted plot shall not be transferred before the allotted premises is declared functional by the Authority. In case the allottee wants to transfer the plot after the hotel is declared functional, the allottee will have to seek prior permission from the

E Authority. Authority may refus.e to allow transfer without giving any reason. However, in case the . transfer is permitted, transfer charges shall be payable as per policy of the Authority and all terms and conditions of transfer memorandum shall be

F binding jointly and severally on the transferee and transferor.

No change in shareholding pattern of the members in the Consortium shall be permih "'!d till the project is completed and functionality certificate is G obtained from the Authority.

In no circumstances, the sub-division of plot will be allowed by the Authority.

The allottee shall not be allowed to use any land H other than allotted premises and shall also ensure

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 95

[R.V. RAVEENDRAN, J.]

to keep the allotted premises, environment neat & A clean.

Cancellation (Clause (o) of the Brochures)

(i) lfit is discovered that the allotment of the plot has . been obtained by suppression of any fact or B misstatement or misrepresentation or fraud the allotment of the plot shall be cancelled and the entire deposited amount shall be forfeited to the Authority._ c (ii) If there is any breach in the terms of allotment, or if the allottee does not abide the terms and conditions of the building rules or any rules framed by NOIDA, the allotment may be cancelled by the Authority and the possession of the demised D premises shall be taken over by the Authority from the allottee. In such an event, allottee will not be entitled for any compensation whatsoever and refund of any amount credited or is in arrears/ overdue as Revenue Receipt(s) if any, may be E refunded after forfeiting the amount as per rules.

However, total forfeited amount would not exceed the total deposits.

7. The number of applications received under the said scheme published on 17.10.2006 and the allotments made after F processing and evaluation, are as under :

Category of No. of plots No. of Number of Hotel Plots offered for applications allotments allotment received made 5 star 10 15 9 G

4 star 5 5 2 3 star 10 11 3 Total 25 31 14 H

A It is stated by NOIDA that the evalation of applications and recommendations for allotment were made by an independent Screening Committee (U.P.lndustrial Consultants Ltd.) and the recommendations for allotmer1ts were approved by the CEO of NOIDA. The allotments were made on 12.1.2007 and the B allottees were required to pay the premium for the leases at the rate of Rs.7400/- per sq.m. plus location charges. At the 142nd meeting held on 9.2.2007, the Board of Directors of NOIDA approved the CEO's acceptance of the recommendations of the Screening Committee relating to C allotment and directed that the remaining.11 unallotted plots (7

plots in 3 star category, 3 plots in 4 star category and 1 plot in 5 star category) be re-advertised.

8. At the 143rd meeting held on 9.3.2007, the Board of NOIDA perused the relevant agenda and noted the allotments D made to the allottees, the payments received by way of premium from the allottees and the proposals for execution of lease deeds in favour of the allottees of the hotel plots, under the government scheme dated 22.5.2006 approved on 5.6.2006. In pursuance of the above, lease deeds have been E executed and presented for registration in March, April -and

May, 2007. In two cases the lease deeds have been registered.

In other cases, it is stated that the registration is pending in view of proceedings for under-valuation on the ground that as against the circle rate of Rs.70,000 per sq.m., the premium for the lease F was only Rs.7,400 per sq.m.

9. At that stage, two writ petitions (Civil Misc. W.P.

No.24917/2007 and PIL W.P. No.29252/2007) were filed in the High Court of Allahabad, challenging the allotment of the hotel sites by NOIDA on the ground that the allotment was at a very G low price. The first writ petition was filed on 22.5.2007, hardly within one month from date of execution of the lease deeds. In the said writ petition, a division bench of the High Court made a reasoned interim order on 22.5.2007 directing the state government to exercise its power of revision under section H

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 97

[R.V. RAVEENDRAN, J.]

41(3) of the U.P. Urban Planning & Development Act, 1973 (for A short '1973 Act') read with section 12 of the Act and take a relook in regard to the allotments made in favour of the appellants by NOIDA and take an independent decision. In pursuance of the said application, the state government examined the matter and concluded that the allotments made B to the appellants were irregular on two grounds. Firstly allotments of commercial plots had been made for industrial purposes at industrial rates without getting the land use changed from commercial to industrial in accordance with the regulations and without obtaining the consent of the state government. c Secondly, the plots earmarked for commercial use in a commercial area were allotted at rates applicable to industrial plots, without calling for competitive bids/tenders and without the permission of the state government. It therefore directed NOIDA to cancel the allotments and initiate action against the D officers of NOIDA responsible for the irregularities.

10. NOIDA implemented the said direction dated 1.8.2007 issued by the State Government by issuing cancellation letters dated 3.8.2007 cancelling the allotments and consequential leases granted in favour of the appellants. NOIDA informed the E allottees that action was being taken as per rules to refund the money being paid by them and called upon them to return the possession of the plots. Letters of cancellation stated that as per the NOIDA Development Area Building Regulations and Directions, 1986 and 2006. (published in the Gazettes dated F 01.12.1986 and 05.12.2006 respectively), hotels fall under commercial category and therefore the Government Policy dated 22.05.2006 was null and void; and that even if the government policy dated 22.5.2006 was valid, the following mistakes in the allotment could not be legally rectified and G therefore the allotments were being cancelled:

(i) F.A.R. of the plots is fixed at 2.00 in the Brochure whereas F.A.R. of industrial plots is 0.60.

(ii) The Government Order dated 22.05.06 issued by H

the Tourism department does not refer to 5% of F.A.R. being used for commercial activities. But NOIDA's hotel scheme contained in the Brochures shows that 5% of F.A.R. is fixed for commercial activities,

(iii) According to the Building byelaws of the Authority published in the Gazette dated 16.12.2006, 'hotel' is kept in commercial category. All the allotted plots are shown for commercial use in NOIDA Master Plan. According to the current policy of the Authority, the disposal of commercial plots has to be done by inviting bids/tenders. But the said procedure was not adopted.

(iv) The allotment of plots is made at industrial rates.

D The then prevailing reserved rates in Industrial Area Phase-I was Rs.7,400/- per sq.mt. And its allotment should be made on the basis of bids/tenders. But in the allotment of hotei, the bids/tender procedure along with the above rates were not followed.

(v) All the plots allotted in the cases in question are shown for commercial purpose. Before including these plots in hotel scheme, according to Para 2 of the Government Order dated 22.05.06 it was necessary to change. the use of the land from commercial to industrial, for which permission from N.C.R. Planning Board was necessary which was not complied with in the case at hand."

11. The state government also filed an affidavit before the G High Court on 2.8.2007, in the writ petitions challenging the

allotments, referring to its aforesaid decision and the consequential direction issued to the NOIDA on 1.8.2007. The relevant portions of the said affidavit are extracted below :

H "3. That after receipt of the orders of this Hon'ble Court the

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 99

[R.V. RAVEENDRAN, J.]

matter was examined by the infrastructure and A Development committee in consultation with concerned Officers including chairman & CEO, NOIDA and found that without changing the land use of land in question, the commercial land was given for industrial purpose and opined that the allotment of land by NOIDA does not B appear to be justified and seems liable for cancellation in accordance with law."

"4. That the recommendations of Infrastructure and Industrial Development Commissioner was considered by C the State Government and a decision was taken in exercise of the power vested under section 41(1) of the U.P.Urban Planning and Development Act, 1973 to direct NOIDA Authority to take action in accordance with law. It was also decided to direct the NOIDA Authority to identify the guilty officials and send the recommendation to the D Government."

In view of the affidavit filed by the State Government, and the cancellation of allotments by NOIDA. the writ petitioners sought

leave to withdraw the writ petitions. The High Court by a E detailed order dated 10.8.2007, dismissed the writ petitions as withdrawn, as the reliefs sought had been granted.

12. Thereafter the appellants filed writ petitions before the High Court challenging the cancellation of allotment of plots and F the leases by communications dated 3.8.2007. The said writ petitions were allowed by a Division Bench of the Allahabad High Court by a common order dated 13.5.2008. The High Court quashed the order dated 1.8.2007 of the State Government and the cancellation orders dated 3.8.2007 passed by NOIDA on the ground that they were opposed to principles G of natural justice for want of opportunity of hearing as required under proviso to section 41 (3) of 1973 Act. The High Court therefore remanded the matters to the State Government for taking a fresh decision, after affording an opportunity of hearing H

A to the writ petitioners, keeping in view the following

observations of the High Court:

"The question as to whether the rates were fixed in the advertisement whereas the same were meant to be only a reserved price, would lead to the conclusion that a minimum price had been fixed and that offers for higher amount could be made but at the same time, it is to be noted that in spite of this price which was indicated in the advertisement, only 14 plots could be settled as against the 25 plots which had been advertised. This clearly indicates that in spite of adequate advertisement having been made, the authority was unable to fetch investors for almost half of the plots. This clearly reflects that the stringent conditions which had been imposed in the advertisement, detracted prospective investors to a great extent. Even before this Court, there is no challenge by way of any such prospective investor to the said advertisement or the procedure adopted by the authority except for two petitions filed as a PIL which were also ultimately withdrawn by the petitioners therein. Thus, in these circumstances, it cannot be readily inferred that the deal was a ma/a fide deal or was some sort of underhand dealing merely because plots had been sold at much higher rates in the nearly commercial area. This, in our opinion, would be comparing uncomparables inasmuch as the terms and conditions in the present allotment are far more stringent and curtail much of the rights as against those plots which have been settled by NOIDA at higher rates on different terms and conditions. In the instant case, the authority has come up with the plea that there was a mistake in the implementation of the policy on account of an incorrect interpretation with regard to the industrial rates to be applied at the time of allotment. It is surprising as to how the authority has termed it as a mistake when extensive deliberations had taken place and conscious decisions-had-been implemented followed by execution of

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 101

[R.V. RAVEENDRAN, J.]

lease deeds and registration thereof.

Admittedly no misrepresentation had been made by petitioners, on the contrary, it is a clear case of misrepresentation by the NOIDA that land would be allotted at fixed price of Rs.7,400/- per sq. mtr. Not a single person has come forward to offer any higher price for 8 either of the plots. No doubt, statutory rules have been violated but such violations appear to be more technical than contrary to public interest.

It is not in dispute that once the NOIDA had adopted the C policy decision dated 22nd May, 2006 in toto, regulations could be amended and if same had not been done, the State Government could have asked the NOIDA to make the amendments for giving effect to the policy decision

d*dn~M~.2006.

The question as to whether the rules and regulations

require amendment for the purposes of justifying the advertisement, has not all been considered by the State Government or NOIDA while passing the impugned order.

This has vitally affected the rights which accrued in favour E of the petitioners on account of the action of the parties in altering their position after the allotment was made.

Whether the implementation of the policy without bringing an amendment in the rules and regulations would be fatal, should have been the subject matter of deliberations by F the State Government while passing the impugned order inasmuch as we do not find any such reason reflected therein. Even otherwise, if this irregularity did exist, then it was still open to the State Government to have considered the implementation of any such amendment looking to the G fact that the hotels were very much urgently required and the work was required to be finished by 2009. It is nobody's case that there was no fair advertisement indicating the terms and conditions on which the allotment was to be made. The policy to invoke the industrial rates H

for allotment was only to promote the hotel business in view of the forthcoming Commonwealth Games and, in the long run, to promote tourism. It is for the State Government to decide as to whether the rates prescribed were reasonable vis-a-vis the object sought to be achieved. It cannot be lost sight of that there are many allotments made by the Government even free of cost to exclusively charitable institutions or institutions which provide services on 'no profit no loss' basis to the public at large. Can it be said that the allotment of such plots have also to be tuned keeping in view the high rate of revenue that can be collected from the land? Thus, the purpose which has to be seen and the object which is sought to be achieved, in our opinion, is in the realm of policy decision to be taken by the State Government founded on a reasonable basis and which has a rational nexus with the object to be achieved. The consideration for fixing appropriate rates may also be one of the factors but the same has to be concluded by taking an appropriate decision. Thus, the decision in this case was required to take after giving opportunity of hearing to the petitioners as the petitioners had acquired valuable rights due to intervening events.

This is we are saying again keeping in view the undiluted facts that out of 25 .plots that were offered, only 14 prospective allottees have applied and were allotted plots .....

In the absence of any kind of allegation of fraud or misrepresentation or impression of bias or favouritism or nepotism or corruption, the decision to cancel the allotment needs a fresh look by the State Government in the back ground of the observations made.

In our opinion the law laid down by the Hon'ble Supreme Court in the case of Sachidanand Pandey. (Supra) is appropriately applicable in the facts of the present case and should have been noticed by the State Government

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 103

[R.V. RAVEENDRAN, J.]

along with other aspect of the matter before taking a A decision in the matter.

The State Government has failed to take note of the fact that the price fetched in respect Of plots settled With the petitioners was considered again by the Board of NOIDA B in its 137th meeting dated 4th September, 2006 and after noticing the settlement made, at a price of Rs.7,400/- per sq. mtr. with the petitioners, the Board approved the same.

Meaning thereby that even. if, there may have been some irregularity in the settlement of plots, vis-a-vis policy C guidelines stood condoned by the NOIDA itself. The State

Government should have a/so kept in mind that the petitioners had already been put in actual possession over the land in question, the lease-deeds had already been executed and 11 cases a/so registered.

D The issue so formulated by us need examination by the State Government afresh in the background that public interest must prevail in all circumstances and all statutory provisions and the power conferred upon the State Government under Section 41 of Act, 1973 must have at E its heart larger public good."

(emphasis supplied)

13. The appellants being aggrieved by the said common order of the High Court, to the extent it remanded the matters F to the State Government for fresh consideration, have filed these appeals by special leave. The appellants contended that the High Court, having quashed the order of the State Government dated 1.8.2007 and the consequential orders of cancellation dated 3.8.2007 passed by NOIDA, ought to have G upheld the allotments and leases and should not have remanded the matter to the state government for fresh consideration. On 9.7.2008 this court directed status quo regarding possession. On 18.7.2008 this court granted leave and issued the following directions : H

"Interim stay of dispossession of the petitioners from the respective sites allotted to them. The petitioners shall maintain status quo and shall not put up any construction on the sites and shail not create any third party rights.

The High Court while setting aside the cancellation of letters of allotment has directed the State Government to give a hearing to the petitioners individually and therefore pass a reasoned order, in the light of its observations, in regard to its proposal to cancel the allotment of sites.

W~ direct that the State Government (Principal Secretary, Industrial Development Department, Uttar Pradesh Government} shall accordingly give a hearing and pass a reasoned order in accordance with law uninfi'uenced by the

observaions made by the High Court in the impugned judgment dated 13.5.2008.

All the petitioners agree to appear before the concerned Authority without further notice on 11.08.2008 for such hearing. We make it clear that the participation in such hearing by the petitioners and passing of orders by Uttar Pradesh Governl'T}ent will be without prejudice to the respective contentions of parties:

List on 09.09.2008. The concerned Authority shall take its decision by that date and submit its decision to this Court."

(emphasis supplied)

14. In pursuance of it, the state government (Principal Secretary, Infrastructure and lnc!ustrial Development} gave a hearing to the appellants and passed individual orders dated G 8.9.2008 in the case of each of the appellants, without reference to the observations or directions of the High Court. The state government has held that the allotment of plots to the appellants was bad and cancelled the allotment and directed action to be taken against the erring officers of NOIDA. In the said orders H

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dated 8.9.2008 made under section 41 (3) of the 1973 Act, the A state government has held :

(i) The object of the government policy dated 22.5.2006 was to treat hotels as 'industry', and make allotment of land

in favour of hotel entrepreneurs on industrial terms, subject 8 to the statutory Regulations, 1996 and Building Regulations, 2006 on land earmarked for industrial use.

Therefore all conditions applicable to industrial buildings will apply to construction of hotels. NOIDA Master Plan had to be amended demarcating Sectors 96, 97, 98 (where five star Hotel Plots H-1 to H-10 are situated) and other C commercial areas allotted for hotels, for industrial use.

(ii) Though NOIDA at its 135th meeting on 5.6.2006 while adopting the government policy dated 22.5.2006 resolved to change its rules, regulations and policy, it did not do so D and consequently the allotments of plots were in violation of the statutory provisions, in particular Regulations 3(1)(b) and 4(1)(b)(iii) read with Regulation 2(d) and (e) of the 1991 Regulations. The adoption of government policy dated 22.5.2006, did not result in automatic amendment E or modification of the regulations of NOIDA.

(iii) The allotments were made at the industrial rate of Rs.7400 per sq.m. The plots allotted were commercial plots, of which the prevailing circle rate was Rs. 70,000 per F sq.m. As a result, there was a loss of Rs.1643.77 crores to NOIDA in the premium charged for the 14 plots. If the rental income for 90 years, with reference to a premium of Rs.70000/- per sq.m. is calculated, the loss on account of annual rent would be Rs.3077.37 crores. Thus the total loss of revenue by not inviting tenders was Rs.4721.14 G crores.

(iv) NOIDA could not have allotted commercial plots at fixed rates, in favour of the appellants without public auction or inviting tenders. If it wanted to allot eommercial H

plot at a fixed rate, it ought to have amended its regulations and policies, and that was not done.

(v) The allotment of plots at Rs.7400 per sq.m. was illegal as the said price was not approved by the Board of NOIDA. The Board of Directors had directed at the 135th meeting on 5.6.2006 while deciding to implement the Government policy dated 22.5.2006, 'to apply the rate of Industrial Area Phase I' for hotel industry. This meant that the reserve rate was to be fixed at Rs.7400/- per sq.m. for the plots and applications ought to have been invited by sealed tenders. But the CEO of NOIDA had shown in the Brochures, a fixed allotment rate of Rs.7400/- per sq.m. contrary to the decision of the NOIDA Board. Secondly the reserve rate had to be fixed after ascertaining the market value which was also not done. The policy of NOIDA both in regard to allotment of both commercial plots and Industrial area - Phase I plots was on the basis of sealed tenders. That was violated by allotting plots at a fixed rate.

(vi) The policy of the government dated 22.5.2006 adopted by NOIDA by resolution dated 5.6.2006 contemplated change of land use, amendment of regulations and policies of NOIDA, and following the prescribed procedure for allotment of commercial and industrial plots. But neither the amendments were carried out, nor the prescribed procedures followed.

(vii) The following violations make the allotments invalid :

(a) reserved price being treated as fixed price; (b) procedure for allotment of plots in commercial areas and industrial areas (Phase I) which was by auction or by bids not being followed; (c) change of land use not being effected; and (d) regulations not being amended to give effect to the policy dated 22.5.2006.

15. As these revisional orders dated 8.9.2008 were H passed by the state government, during the pendency of these

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appeals, in pursuance of the directions of this court issued on A 18.7.2008, this court permitted the appellants to challenge the said orders of cancellation dated 8.9.2008 by filing additional grounds in order to avoid duplication of proceedings. The respondents were also permitted to file their additional counter affidavits. These appeals were therefore heard with reference 8 to the challenge to the orders of cancellation dated 8.9.2008, in addition to the challenge to the order of remand of the High Court dated 13.5.2008.

16. We may first briefly deal with the challenge to the order of the High Court dated 13.5.2008. The High Court rightly set C aside the orders dated 1.8.2007 of the state government, because no hearing was given to the appellants as required under section 41 (3) of the 1973 Act. Even otherwise, when valuable rights had vested in the appellants, by reason of the allotments and grant of leases, such rights could not be D interfered with or adversely affected, without a hearing to th~ affected parties. Violatipn of principles of natural justice was a ground to set aside the order dated 1.8.2007 and the consequential orders dated 3.8.2007. Several objections were raised by appellants to the cancellation. These objections had E not been considered by the state government. As the High Court was setting aside the orders dated 1.8.2007 and the consequential order dated 3.8.2007, on the ground of violation .of principles of natural justice, necessarily it had to direct the state government to reconsider the entire matter. The High F Court therefore referred to the several issues which required to be considered and several admitted facts which will have a bearing thereon, and directed the state government to decide the matter afresh after hearing the appellants. This court reiterated the said direction in its interim order dated G

18. 7.2008. Therefore there is no need to interfere with the final order of the High Court.

"'1-7-.., Therefore what in effect remains for our consideration is the validity of the orders of cancellation dated 8.9.2008 H

A passed by the state government in exercise of its revisional jurisdiction. On the facts and circumstances and on the contentions urged, the questions that arise for consideration in these appeals broadly are :

I. Where allotment has been followed by grant of a lease (which is duly executed) and delivery of possession in favour of the lessee, whether the 1eases could be

unilaterally cancelled by the lessor?

II. Whether the cancellations were on account of change in policy as a consequence of change of government, or on account of new government's desire to nullify the actions of previous government?

Ill. Whether the allotments of plots to appellants suffer from any irregularity or illegality?

(a) Whether allotment of commercial plots for hotels, is contrary to the government policy dated 22.5.2006, adopted by NOIDA on 5.6.2006, or [he regulations and policies of NOIDA?

(b) Whether allotment of hotel sites by NOIDA should have been only on the basis of sealed tenders/public action?

(c) Whether the allotment rate is erroneous resulting in any loss to NOIDA?

IV. If there is any violation of the regulations/policies of NOIDA in making the allotments, what is the consequence?

(i) Who is responsible for the same?

(ii) Whether there is any suppression, misstatement or misrepresentation of facts, or fraud, collusion or undue influence on the part of any of the appellants in obtaining the allotment/lease?

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(iii) What should be the remedial action?

I. Whether a completed lease can be cancelled?

18. The particulars of the lease deeds executed by NOIDA witti regard to the hotel buildings allotted on 12.1.2007 to various allottees are as under:

CA No.

Name of the Cate- Plot Date of Date of allottee/lessee gory Number execution delivery of of lease possessdeed ion

4561/08 ITC Ltd. 5 star Plot No.H-5 11.4.2007 11.4.2007 Sector 97 (pending registration)

4562/08 Indian Hotels Ltd. 5 star Plot No.H-2 4.4.2007 9.4.2007 Sector 96 (pending registration)

4563/08 Bharat Hotels Ltd. 5 star Plot No.H-1 28.3.2007 29.3.2007 Sector 96 (registered)

4564/08 Hampshire Hotels. 5 star Plot No.H-3 .28.3.2007 28.3.2007 & Resorts Pvt.Ltd ..

Sector 96 (registered)

4565/08 Arora Holdings Ltd. 5 star Plot No.H-6 18.4.2007 27.4.2007 (consortium) Sector 97 (pending registration)

4566/08 Crimson Hotels 5 star Plot Nci.H-7 11.7.2007 18.4.2007 Ltd. through Sector 97 (pending Clarkston Hotels registration) (P) Ltd.

4567/08 Mariada Holdings 3 star PlotSDC-H 18.4.2007 26.4.2007 Ltd. (consortium) -1 Sector 62 (pending registration)

4568/08 M/s Mast Craft Ltd. 3 star Plot SOC- 18.4.2007 27.4.2007 (consortium)

H-2 pel)ding through Mis.

Sector 105 registration) NOIDA Luxury Hotels & Resorts (P) Ltd.

4569/08 Swiss-Bell Hotels 5 star H-9 18.4.2007 24.4.2007 International Ltd. .Sector 98 (pending (consortium) registration)

4570/08 Rendezvous 5 star H-8 20.4.2007

A Hotels lnterna- Sector 98 (pending 24.4.2007 tional Pvt.Ltd. registration) (Consortium) through Somap Hotels (P) Ltd.

4571/08 Royal Orchid 3 star 124 A/2 20.4.2007 26.4.2007 B Hotels Ltd.

Sector 124 (pending (consortium) registration)

4572/08 Orchid lnfras- 4 star 124 A/1 - - Structure Devel- Sector 124 opers Pvt. Ltd.

4968/08 Metrovino Mana- 4 star SDC/H-1 3.5.2007 4.5.2007 c gement Ltd.

Sector 105 (pending (Consortium) registration) - Elbrus Builders 5 star H-4 - - (P) Ltd.

Sector 96 (Consortium)

19. The appellants applied for allotment in pursuance of D advertisements/brochures issued in October 1996 by NOIDA

inviting applications from hotel entrepreneurs for allotment of plots for hotels. Each of the appellants fulfilled the elaborate eligibility criteria for allotment of respc.-; tive category of plot.

After detailed comparative evaluation of the applications E through an independent agency NOIDA found them fit and

eligible for allotment. Out of 25 plots, allotments were made only in respect of 14 plots. NOIDA issued them letters of allotment on 12.1.2007. Each appellant paid the lease premium ranging between Rs.17.76 crores (five star plots) to Rs.5.55 crores F (three star plots) as premium plus location benefit charges.

Many also exercised the option to pay 27.5% of the premium plus location benfit charges, as eleven years rent in advance in lump sum as 'one time lease rent' instead of paying yearly rent for 90 years. On payment of premium and other dues by G the allottes, in terms of the relevant regulations, lease deeds were executed in favour of the appellants, in the standard lease

format of NOIDA in the months of March, April and May, 2007 . and they were duly presented for registration. The appellants

have also incurred stamp duty and registration charges ranging H from about Rs.2 crores to Rs.62 lakhs. Two lease deeds (in

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favour of Bharat Hotels Ltd. and Hampshire Hotels & Resorts A Ltd.) have been duly registered. In regard to other lease deeds, thoµgh presented for registration, though there is no objection for registration, registration formalities are kept pending in view of a demand by the registration authorities for deficit stamp duty and registration charges on the basis of circle rate B and the issue is pending before the concerned registration officer or in court. As far as NOIDA is concerned, execution and registration of the leases were completed and consequently possession of the plots were delivered to the respective allottee/lessee in April and May, 2007. Each C appellant has also incurred considerable amount for preliminary expenditure for the hotel project (in addition to the premium, location benefit charges, rent, stamp duty .and registration charges) as they were expected to execute the projects in a time bound manner.

20. In the aforesaid factual background, the first contention of the appellants is that when the leases have been granted, executed and registered, when entire premium and other dues have been paid and possession has been delivered, the lessor (NOIDA) cannot unilaterally cancel the leases. The appellants E do not challenge the power of NOIDA as lessor, to terminate the lease on the ground of fraud and misrepresentation under

clause Xlll(1) of the lease deed or on the ground of breach of the terms of the lease under clause XIV of the lease deed.

What is challenged is the right to cancel a concluded lease F itself, on the ground that allotment was not valid.

21. A lease governed exclusively by the provisions of Transfer of Property Act, 1882 ('TP Act' for short) could be cancelled only by _filing a civil suit for its cancellation or for a G declaration that it is illegal, null and void and for the consequential relief of delivery back of possession. Unless and until a court of competent jurisdiction grants such a decree, the lease will continue to be effective and binding. Unilateral cancellation of a registered lease deed by the lessor will neither terminate the lease nor entitle a lessor to seek H

A possession. This is the position under private law.

22. But where the grant of lease is governed by a statute or statutory regulations, and if such statute expressly reserves the power of cancellation or revocation to the lessor, it will be

8 permissible for an Authority, as the lessor, to cancel a duly executed and registered lease deed, even if possession has been delivered, on the specific grounds of cancellation provided in the statute.

23. NOIDA is an authority constituted for development of C an industrial and urban township (also known as Noida) in Uttar Pradesh under the provisions of the Act. Section 7 empowers the authority to sell, lease or otherwise transfer whether by auction, allotment or otherwise, any land or building belonging to it in the industrial development area, on such terms and D conditions as it may think fit to impose, on such terms and conditions and subject to any rules that may be made. Section 14 provides for forfeiture for breach of conditions of transfer.

The said section empowers the Chief Executive Officer of the Authority to resume a site or building which had been E transferred by the Authority and forfeit the whole or part of the money paid in regard to such transfer, in the following two circumstances : a) non-payment by the lessee, of consideration money or any installment thereof due by the lessee on account of the transfer of any site or building by the Authority; or b) F breach of any condition of such transfer or breach of any rules or regulations made under the Act by the lessee. Sub-section

(2) provides that where the Chief Executive Officer of the Authority resumes any site or building under sub-section (1) of section 14, on his requisition, the Collector may cause the G possession thereof to be taken from the transferee by use of such force as may be necessary and deliver the same to the Authority. This makes it clear that if a lessee commits default in paying either the premium or the lease rent or other dues, or commits breach of any term of the lease deed or breach of H any rules or regulations under the Act, the Chief Executive

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Officer of NOIDA can resume the leased plot or building in the A manner provided in the statute, without filing a civil suit. The authority to resume implies and includes the authority to

unilaterally cancel the lease.

24. Clause XIV of the lease deeds executed by the NOIDA 8 in favour of the appellants provides that "notwithstanding - anything to the contrary contained herein, in the event of breach of terms of lease, or if the lessee does not abide by the terms and conditions of the building regulations and directions or any rules framed by the lessor from time to time", the lease may C be cancelled by the lessor and the possession of the demised premises can be taken over by the lessor from the lessee.

Clause XIII (i) provides that "if it is discovered that the allotment/ lease of the demised -premises has been obtained by suppression of any fact or misstatement or misrepresentation or fraud on the part of the lessee", then the lease shall be D cancelled and the entire deposit amount shall stand forfeited. Therefore NOIDA has the authority, having been empowered by the statute, to cancel the lease and resume possession, without recourse to a civil court by a suit, in two circumstances

(i) non-payment of the premium/rent/other dues; (ii) breach of E conditions of transfer or breach of rules or regulations under the Act (the conditions referred would include any suppression of fact or misstatement or misrepresentation or fraud on the part of the lessee in obtaining the lease).

25. NOIDA has not alleged or made out any default in payment or breach of conditions of the lease or breach of rules

and regulations. Nor is it the case of NOIDA that any of the appellants is guilty of any suppression or misstatement of fact, misrepresentation or fraud. Neither the cancellation of the G allotment and the lease by NOIDA by letter dated 3.8.2007, nor the orders dated 1.8.2007 or 8.9.2008 made by the state government refer to any of these grounds. Therefore the cancellation cannot be sustained with reference to the grounds mentioned in section 14 of the Act. The grounds mentioned for H

A cancellation are mistakes committed by NOIDA itself in making allotments and fixing the premium, in violation of the Regulations and policies of NOIDA by officers of NOIDA. These are not grounds for cancellation under section 14 of the Act.

26. The learned counsel for the respondents submitted that . the lease was terminated by the state government, in exercise of revisional jurisdiction under section 41 of the UP Urban Planning and Development Act, 1973 read with section 12 of the Act on the ground that there were irregularities and violations of regulations and policies of NOIDA in allotting the C hotel plots to the appellants. It is submitted that the state government has such power to cancel the allotment and as a consequence the lease. Let us examine whether the state government has such power. Section 12 of the Act provides that the provisions of Chapter Vil and sections 30, 32, 40 .• 41, D 43, 44, 45, 46, 47, 49, 50, 51, 53 and 58 of the Uttar Pradesh

Urban Planning and Development Act, 1973 as re-enacted and modified by Uttar Pradesh President's Acts (Re-enactment with Modifications) Act, 1974 shall mutatis mutandis apply to the Authority with the adaptations mentioned in the said section.

E Section 41 of the 1973 Act, relating to control by State Government, is thus applicable to NOIDA. The said section with the adaptations mentioned in section 12 of the Act, reads as under:

"41. Control by State Government- (1) The Authority, the Chairman or the Chief Executive Officer shall carry out such directions as may be issued to it form time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with the exercise of its power and discharge of its functions by the Authority, the Chairl!lan or the Chief Executive Officer under this Act, any dispute arises between the Authority, the Chairm;:in or the Chief Executive Officer and the State Government the decision

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[R.V. RAVEENDRAN, J.]

of the State Government on such dispute shall be final.

(3) The State Government may, at any time, either on its own motion or an application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of 8 satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit.

Provided that the State Government shall not pass on order prejudicial to any person without affording such person a C reasonable opportunity of being heard.

(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court." D

27. Sub-section (3) enables the state government, either on its own motion or on an application made to it in this behalf, to call for-the records of any case disposed of or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and E may pass such order or issue such direction in relation thereto as it may think fit. The allotments were challenged in two writ litigations before the Allahabad High Court (Civil Misc.WP 24917/2007 and PIL WP No. 29252/2007). A division bench of the High Court directed the state government to exercise its F power of revision and have a relook in regard to the allotments made in favour of the appellants by NOIDA in exercise of its power under section 41 (3) of the 1973 Act (read with section 12 of the Act). The order dated 1.8.2007 passed by the state government in pursuance of the said direction of the High Court G was set aside by the High Court on the ground that the order violated section 41 (3) of the 1973 Act and directed fresh consideration after hearing the parties. This Court also directed the state government to pass a fresh order. Accordingly the state government examined the matter and passed the impugned H

A orders dated 8.9.2008. The state government has concluded

that the allotments by NOIDA were in violation of the regulations and policies of NOIDA and therefore cancelled the allotments and consequential leases. The State Government is empowered to issue such direction. (Whether the order of the B State Government is valid on merits is a separate issue). The

limited question under consideration is whether the state government can cancel the allotments and consequently the leases. Section 41 (3) shows that the state government, can examine the legality or propriety of any order of NOIDA and c pass appropriate orders. If the state government in exercise of its revisional jurisdiction finds the allotments were irregular or contrary to the regulations or policies of NOIDA and directs cancellation, the allotments become invalid and leases also become invalid. Consequently NOIDA can resume possession,

0 without intervention of a civil court in a civil suit.

II. Whether the cancellation was on account of the change in government

28. The appellants submitted that the Hotel plot scheme E was introduced and allotments were made in pursuance of a

policy of the government that was in power in 2006; and that immediately after the allotment and execution of the lease deeds, there were changes in government on 15.5.2007. The appellants contend that the direction to cancel the allotments F (issued on 1.8.2007) and the orders of cancellation (issued on

8.9.2008) was apparently a consequence of the new government reviewing and changing the policies by the previous government or as a consequence of the new government's intention to upset the decisions of the previous government. It G is submitted that the successor government cannot reopen

concluded transactions of the previous government on the ground of change in policy or by merely reconsidering them.

Reliance is placed upon two decisions of this Court in support of their contention - State of Haryana vs. State of Punjab - 2002 (2) SCC 507 and State of Karnataka vs. All India H

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[R.V. RAVEENDRAN, J.]

Manufacturers Organisation - 2006 (4) SCC 683. In State of A Haryana, this Court observed :

" ..... What really bothers us most is the functioning of the political parties, who assume power to do whatever that suits and whatever would catch the vote-bank. They forget 8 for a moment that the constitution conceives of a Government to be manned by the representatives of the people, who get themselves elected in an election. The decisions taken at the governmental level should not be so easily nullified by a change of government and by some other.political party assuming power, particularly C when such a decision affects some other State and the interest of the nation as a whole. It cannot be disputed that so far as policy is concerned, a political party assuming power is entitled to engraft the political philosophy behind the party, since that must be held to be the will of the D people. But in the matter of governance of a State or in the matter of.execution of a decision taken by a previous government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding government must be held duty bound to E continue and carry on the unfinished job rather than putting a stop to the same."

(emphasis supplied)

In State of Karnataka, (supra) this Court while reiterating the above principle laid down in State of Haryana, added :

Taking an overall view of the matter, it appears that there could hardly be a dispute that the project is a mega project which is in the larger public interest of the State of G Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be H

A taken every time there is a change of Government has been clearly laid down ......... "

29. On a careful consideration, we find that the contention has no merit. This is not a case where as a consequence of

8 change in government, the new government has reviewed the decision relating to hotel site allotment, merely because it was a decision of the previous government. Nor is it a case where any new policy of the new government, being at variance with the policy of the previous government. The principles stated in C the said two decisions will be relevant in such cases. In this case, the allotments of plots for hotel projects were challenged in two writ petitions - the first of which was filed on 22.5.2007.

In the said writ petition, the High Court made an interim order dated 25.5.2007, directing the state government to have a relock of the entire matter in view of the serious allegations made D in the writ petitions about allotment at throw away prices. In fact, the High Court specifically directed the state government to exercise its power of revision under section 41(3) of 1973 Act and take an independent decision. It is in compliance with the said direction that the state government had a relock at the E matter, found some irregularities in allotment and directed

NOIDA to take action to remedy the irregularities found in the allotments, vide letter dated 1.8.2007. This was confirmed in the affidavit dated 2.8.2007 filed by the state government before the High Court. Therefore, the decision dated 1.8.2007 was not F a decision taken by a subseq!Jent government in an attempt to find fault with the policies or actions of the previous government, but a decision taken in exercise of a power under section 41 of the 1973 Act in the normal course of governmental business, in pursuance of specific directions of the High Court. The G orders dated 8.9.2008 were made in view of the final order of the High Court and the interim order of this court directing

reconsidration. We therefore, reject the contention that the decisions dated 1.8.2007 and 8.9.2008 of the state government were the result of any ulterior motive to interfere with the policies H or decisions of the earlier government. The decision of the

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[R.V. RAVEENDRAN, J.]

state government in revision, is not based on any different A policy, but based on its finding that the existing regulations and policies of NOIDA were violated.

Ill. Whether the allotments violate the regulations/policies of NOIDA?

30. The Central Government requested the governments of Uttar Pradesh and Haryana to encourage the high segment hotel industry and add to the available room capacity in areas adjoining Delhi, in time to meet the increased demand expected during the Commonwealth Games scheduled to be C held in October, 2010. The Uttar Pradesh government had declared 'tourism' to be an industry as far back as 1997-98 to encourage tourism in the State. It however found that the said incentive did not have any marked effect, as far as increasing the number of quality hotels, an integral part of tourism. To attract D the twin objects, that is to comply with the request of the central government for creation of more star hotels, and also to attract capital investment in the hotel segment of tourism industry throughout the state, the state _government came out with a policy on 22.5.2006 with the following two new hotel-specific E incentives, in addition to the standard incentives available to tourism industry : (i) allotment of plots for hotels at industrial plot prices; and (ii) 100% rebate in Sukh Sadan Tax for five years from start-up. When the policy dated 22.5.2006 is read as a whole, the scheme that emerges is this: The development authorities were expected to earmark specific areas for setting F

up hotels while preparing the Master Plan, with the assistance of tourism department. Where the development authorities had already finalized the master plan, they were required to earmark surplus lands (that is, areas not reserved for any identified or G specific use) for allotment to hotels. If suitable surplus land was not available and it becomes necessary to allot plots earmarked for other use, for purposes of hotels, the development authorities were required to follow the rules and change the land use so that the.land could be legitimately used for hotel industry.

A In areas where there were no devlopment authorities, suitable

lands near tourist spots were to be acquired/transferred to tourism department which would allot the land to Hotels/tourism industry. The plots earmarked for hotels had to be allotted to hotels/tourism entrepreneurs at industrial plot rates, as was B done in the case of allotments for industries. The policy was a general policy intended to apply for the entire state. It proceeded on the assumption that earmarking areas for hotels and tourism for allotment at industrial rates, would be under a separate and distinct categorization of land use. It apparently c did not contemplate high value commercial plots in NOIDA

being earmarked for hotel industry and being allotted at industrial rates.

31. The state government on examination of all the facts in its revisional jurisdiction found that the hotel plots allotted to D appellants were part of Sectors 96, 97 and 98 (for five star plots) and other sectors (for plots for 4 star and 3 star hotels) which were earmarked for commercial use under the NOIDA Master Plan. It was of the view that in view of tourism/hotels being declared as an "industry" and the government policy E requiring allotment of plots for tourism/hotels at industrial rates, if any plot had to be allotted for a hotel, the land use of the said plot had to be changed to industrial use in the Master plan by adopting the prescribed procedure under the regulations, before making the allotment. It was also of the view that if the plots were F allotted for hotel industry, then the construction should be as per the NOIDA building regulations and directions applicable to industries in regard to FAR, ground coverage, height, setbacks, construction of building etc. It was also of the view that if plots in commercial areas are to be allotted it could be only in G accordance with the NOIDA Commercial Property Management Policy which required all commercial plots to be allotted on sealed tender or public auction basis. As NOIDA did not alter the land use of the plots in question from commercial use to industrial use in the Master Plan nor amend H the definitions of commercial use and industrial use in the 1991

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[R.V. RAVEENDRAN, J.]

Regulations so that hotels would no longer be a commercial A use, but a industrial use, the state government held that statutory regulations and directives of NOIDA had been violated in making the hotel plot allotments.

32. The state government contends that the allotment of 8 commercial plots to appellants for establishing hotels without converting them to industrial use violated the NOIDA Regulations and therefore impermissible and illegal. The state government further contends that when hotels were given the status of 'industry', the use of land for hotels would be an industrial use and therefore, the allotment of plots by NOIDA C for constructing hotels should have been in areas earmarked as indu.strial area, and that if any area earmarked for commercial use is to be allotted to hotels, such allotment can be only after change of such land from commercial use to industrial use. Alternatively, itis submitted that even if the plots D in area earmarked for commercial use are allotted to hdtels such allotment could be only by adopting the procedure applicable to allotments of commercial plots that is by inviting tenders or bids and not by allotment at any fixed rate that too a fixed rate which is a reserved rate for an industrial plot. Lastly, E it is contended that if a commercial plot could be allotted to a hotel, it cannot be charged the industrial plot rate, but should have been charged as a commercial plot. It is submitted that charging 14 comm.ercial plots at industrial rates has resulted in a loss of Rs.4721.14 crores.

33. On the other hand, the appellants contend that the policy dated 22.5.2006 did not direct or require that allotment of plots for hotels should be in areas earmarked for industrial use. They point out that the hotel business is a commercial G activity and under the 1991 Regulations, commercial use includes use of land or building for a hotel, and use of land or building for locating an industry is an industrial use. It is submitted that allotment of plots in commercial areas to hotels was justified as it is a commercial use. It is next submitted that the policy required only the rates applicable to industrial plots, H

A to be applied to the plots allotted to hotels wherever they are situated, as an incentive for hotel and tourism industry, and that did not mean that the building regulations should be applied to hotel buildings. The allotment of hotel plots having been done at legitimately fixed allotment rates, there is no question of loss B to NOIDA.

These contentions give rise to three sub-issues and we will deal them separatelv.

(a) Whether plots earmarked for commercial use in C commercial area. could be allotted for hotels?

34. We will first examine the question whether commercial plots could not be allotted to hotels, without changing the earmarked land use from 'commercial' to 'industrial' and

0 whether the FAR, maximum height, set backs, ground coverage etc. applicable to hotel plots should be as per the regulations applicable to industrial buildings and not as applicable to commercial buildings.

(34.1) Section 6 of the Act relates to the functions of the E Authority. Sub-section (1) specifies the object of the Authority is to secure planned development of industrial development area. Sub-section (2) provides that the functions of the authority include preparation of a plan for the development of the 'industrial development area' to demarcate and develop sites F for industrial, commercial and residential purposes, to lay down the purpose for which a particular plot shall be used (that is industrial, commercial, residential or other specified purpose) in the development area. In exercise of its power under section 19 read with section 6 of the Act, the Authority made the NOIDA G (Preparation and Finalisation of Plan) Regulations, 1991 ('1991

Regulations' for short).

(34.2) Clauses (d), (e) and (f) of Regulation 2 of the said Regulations define commercial use, industrial use and H institutional use as under:

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[R.V. RAVEENDRAN, J.]

"(d) 'Commercial Use' means the use of any land or A building or part thereof for carrying on any trade, business or profession, sale of goods of any type, whatsoever and includes private hospitals, nursing homes, hostels, hotels, restaurants, boarding houses not attached to any educational institution, consultant offices in any field, B cottage and service industries;

 (e) 'Industrial Use' means the use of any land or building or part thereof mainly for location of industries and other uses incidental to industrial use such as offices, C eatable establishment etc.;

(f) 'Institutional Use' means the use of any land/building or part thereof for carrying on activities like testing, research, demonstration etc. for the betterment of the society and it includes educational institutions;" D

(emphasis supplied)

(34.3) Regulation 4 provides that the NOIDA Master Plan may include Sector Plans showing various sectors into which the development area or part thereof may be divided for the purpose of development. It requires the said Plan to show the various existing and proposed land uses indicating the most desirable utilization of land for (i) industrial use by allocating the area of land for various scales or types of industries or both;

(ii) residential use by allocating the area of land for housing;

(iii) commercial use by allocating the area of land for wholesale

or retail markets, specialized markets, town level shops, showrooms and commercial offices and such allied commercial activities; (iv) public use by allocating the area of land for Government offices, hospitals, telephone exchanges, police G lines etc; (v) organized recreational open spaces by allocating area of land for parks, stadiu1]1 etc.; (vi) agricultural use by allocating the area of land for farming, horticulture, sericulture;

(vii) such other purposes as the Authority may deem fit, in the

',; '

A course of proper development of the development area. The said 1991 Regulations also requires the Plan to include the systematic regulation of each land use area, allocation of heights, number of storeys, size and number of buildings, size of yards and other open spaces and the use of land and B buildings.

(34.4) Regulation 9 provides that the plan finalized and approved by the Authority shall be effective for such period as may be specified by the Authority, but not less than five years.

C Regulation 11 authorises the Authority to make amendment to the Plan and requires the Authority, before making any amendment to the Plan to publish a notice at least in one newspaper having circulation in the area inviting objections and suggestions and further requires every amendment made to the plan to be published. It provides that the amendment shall come D into operation either on the date of the first publication or on such other date as the authority may fix. It is of relevance to note that in this case no amendment was made changing the land use of the plots in question from commer ial to industrial.

35. The Authority made the NOIDA Building Regulations and Directions, 2006 (for short "2006 Building Regulations"), with prior approval of the state government and in exercise of its powers under sections 9(2) and 19 of the Act. The said Building Regulations replaced the NOIDA Building Regulations F and Directions 1986, with effect from 5.12.2006.

(35.1) Regulation 3.12 defines building as any structure or erection or part of a structure or erection which is intended to be used for residential, commercial, industrial or other purposes. Clause (e) thereof defines 'industrial building' as G referring to a building in which products or materials of all kinds and properties are fabricated, assembled or processed, such as assembly plants laboratories, power plants, smoke houses, refineries, gas plants, mills, diaries or factories.

H (35.2) Regulation 33.3 prescribes the maximum ground

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[R.V. RAVEENDRAN, J.]

coverage, maximum FAR in percentage and maximum height A for industrial building~ The same is extracted below : s.

Plot Area Max.

Max. FAR Max.

No.

Ground in% height Coverage (in mt)

Upto 100 60 120 15 B

Above 100 upto 450 15

a. First 100 Same as (1) above

b. Next 350 or part thereof 60 100

Above 450 upto 2000 15 c a. First 450 Same as (2) above

b. Next 1550 or part thereof 55 80

Above 2000 upto 12000 15

a. First 2000 Same as (3) above

b. Next 10000 or part 55. 70 D thereof

Above 12000 upto 15 20000 -

a. First 12000 Sanie as (4) above

b. Next 8000 or of part 50 65 E thereof

Above20000 15

a. First20000 Same as (5) above

b. Above20000 50 60

F The said regulation shows that no industrial building put up in an industrial plot can exceed a height of 15 mtrs. The permissible FAR for industrial use ranges between 1.2 to 0.6 depending upon the size of the plot. The FAR as per the above table would be 0.679 for a plot measuring 24000 sq.m., 0.72 G for a plot measuring 12500 sq.m. and 0.74 for a plot measuring 7500 sq.m.

(35.3) Regulation 33.4 divides the commercial buildings into two categories that is hotel buildings and buildings for other H

A commercial activities and prescribes the maximum ground coverage, FAR and maximum height for both types of commercial buildings. As we are concerned with hotel buildings, the relevant portion of said regulation dealing with hotel building is extracted below : B

SI.

Use Maximum FAR Max.

No. ground height coverage %

Hotel Building

(a) Below three star category 30% 1.25 24.0 m c

(b) Three star category 30% 1.5 No limit

(c) Above three star category 25% 2.0 No limit

The said regulation shows that for hotel buildings there is no D height restriction at all and the FAR is 2 (for 4 star and 5 star categories) and 1.5 (for 3 star category hotels).

36. The 2006 Building RegulationE make it clear that FAR and the permissible height of the building is far more E advantageous in the case of commercial hotel buildings when compared to industrial buildings. It may be mentioned that even when the 1986 Building Regulations were in force till 4.12.2006, the provisions for FAR and height of building were far more advantageous to commercial buildings, when compared to F industrial buildings.

37. Running a hotel or boarding house or a restaurant is a commercial activity. By no stretch of imagination, use of a plot for a hotel can be considered as use of such land for an industrial purpose. An industrial building is defined in G Regulation 3.12{e) of the NOIDA Building Regulations and Directions of 2006 as a building in which products or materials of all kinds and properties are fabricated, assembled or processed. As per the 1 ~91 Regulations, use for a hotel is a commercial use; and 'industrial use' refers to manufacturing, H

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 127

[R.V. RAVEENDRAN, J.]

fabrication, assembling and processing activities. If the land A allotted to a hotel is to be considered as an allotment for an industrial use and the building constructed in such plot is to be considered as an industrial building, the consequence will be that no five star, four star or three star hotel can be constructed in such plots. Further the restrictions for industrial buildings, B relating to permissible FAR (less than 0. 75 as against 2 for hotels) and height (maximum of 15 M as against absence of any height restriction for hotels) make industrial plots useless and unviable for a hotel. We note below the comparative table of FAR and the permissible height for industrial and commercial c buildings, worked out from Regulations 33.3 and 33.4 of the 2006 Regulations :

Plot Size Under permissible FAR Permissible Height No.

D Industrial Commercial Industrial Commercial

1. 7500 sq.m 0.74 1.5 15 mtr. ' No height Three Star restriction 2. 12500 sq.m 0.72 2 15 mtr.

No height Four Star restriction E

3. 24000 sq.m 0.679 2 15 mtr.

No height Five Star restriction

38. Having regard to the provisions of 1991 Regulations, use of land for hotel cannot be considered as an industrial use, F but will continue to remain a commercial use. The policy of the state government dated 22.5.2006 cannot override the NOIDA Regulations. If any policy is made, intending to give different meaning to the words 'commercial use' and 'industrial use', that can be given effect only if the regulations G are suitably amended. Be that as it may.

39. When tourism is given the status of an industry, it does not mean tourism involves manufacturing, fabrication, processing or assembling. The term 'industry' has different H

A nuances. The traditional meaning of 'industry' may be manufacture or production of goods. When used in the context of an 'industrial area' or 'a land for industrial use' the word 'industry' will refer to use for manufacture, production and allied activities. On the other hand, when the word 'industry' is used B in the context of tourism/hotels, hospitals/nursing homes or banking, it refers to a service industry, that is groups engaged in that particular organized activity, and does not refer to any manufacturing, processing, assembling etc. When the government policy gave tourism and hotels, the status of an c industry, it did not require hotels to undertake manufacturing or production activities. By giving the status of 'industry'. the policy enabled a particular service activity (in this case tourism and hotels) to secure certain benefits in allotment of land at concessional prices and certain tax exemptions. Therefore, the

0 fact that the tourism or hotels have been given the status of 'industry' will not convert them into industries, for the purpose of allotment of plots, nor will the use of land by such tourism or hotel industry, will be an industrial use. It does not also mean that all the hotels and tourist offices should be shifted from commercial areas to industrial areas or that hotels or tourist E , offices cannot operate in commercial areas, or that they cannot get allotment of land or building earmarked for commercial use.

Running hotels, to repeat, is a commercial activity and the use of a land or building for a hotel is commercial use and therefore, allotment of plots for hotels in a commercial area is F wholly in consonance with the NOIDA Rgulations and Master

plan which earmarks areas for specific land uses like industrial, residential, commercial, institutional, public, semi-public, etc.

40. We are therefore of the view that the allotment of plots G situated in commercial areas earmarked for commercial use, to hotels did not violate any provisions of the Act or the NOIDA

Regulations. We are also of the view that it was not necessary for NOIDA to change the land use of plots to be allotted to hotels, from commercial to industrial use. The contentions of H the respondents to the contrary are therefore, rejected.

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[R.V. RAVEENDRAN, J.]

(b) Whether allotment of hotel sites by NOIDA should A have been by inviting tenders/holding auctions?

41. The learned counsel for appellants contended that whenever the State or its authorities decide to dispose of their properties, it need not always be by public auction or by inviting 8 sealed tenders, involving competitive bidding. It is submitted that if the object of a poli.cy relating to allotment of plots is to promote hotel industry and not to earn revenue, it would be open to the state government and its authorities to dispose of their properties by other recognized methods, that is by allotment at C fixed rates after inviting applications from eligible applicants, or by allotment after specific invitation and negotiations, depending upon the facts and circumstances. It is pointed out that in pursuing socio-economic goals, as for example when plots are allotted by development authorities to persons belonging to economically weaker sections or persons D belonging to middle classes, allotments are always made at fixed rate by drawing lots and not by inviting tenders or by auctions. It is submitted that only a few plots as for example, the corner plots or plots of some special category are normally disposed of by either public auction or by inviting tenders.

E According to appellants, whether allotment should be by public

auction or by inviting tenders or by inviting applications for allotment at fixed rate is a decision to be taken by the authority concerned, on the facts and circumstances of each case; and therefore NOIDA did not commit any irregularity, by adopting F the method of allotment of hotel plots at fixed rate applicable to industrial plots, to give a boost to tourism industry in the state, in pursuance of government policy dated 22.5.2006.

42. In support of their contention, the appellants relied upon G the decisions of this Court in Brij Bhusan vs. State of Jammu & Kashmir - 1986 (2) SCC 354, Sachidanand Pandey vs.

State of West Bengal - 1987 (2) SCC 295, and MP Oil Extraction vs. State of MP - 1997 (7) SCC 592. In Brij Bhusan (supra), this Court was considering a case where certain H

SUPREME COURT REPORTS


A entrepreneurs had on their own had offered to set up the factories for manufacturing of resin and turpentine derivatives.

After negotiations the state government gave licences to them to set up factories and assured supply of the required raw materials (Oleo Resin). No advertisements were issued by the B state government inviting tenders for setting up such factories.

Other entrepreneurs who were interested in setting up factories, challenged the grarit'of licence's on the ground that due opportunify :was 'not given to an tf\eent?Efp'renelfl'S to make their applicatlons. This Court rejeeted tt\efWrit petitions holding that c in the absence bflnateriarto 'show that the State had acted

rnala ficfe'or out of improper or-corrupt motive or in order to promote the privat~ iriterest of someone at the cost of the State, the decision fo grant licences was not open to interference. It reiterated where State is allocating resources for the purpose

0 of encouraging setting up of industries within the State, the

State is not bound to advertise and tell the people that it wants a particular industry to be set up in the State or invite those interested to come up with proposals.

In Sachidanand Pandey, this Court held :

. ~:i ~- -:.~_ .'r

tSttci~, r1~ or , p, ublic-pwned property is not to be dealt

wit~, at:.; t~~ 1 eba, lt~ 4isqret\on. 9; f tbe executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the m.eth.ods, of .scuring the. public interest, when it is

consi~rd 11ec..e$>sa_ry to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism."

H To the same effect is the decision in MP Oil Extraction. The

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 131

[R.V. RAVEENDRAN, J.]

appellants point out that their cases are much stronger than A those considered in those cases, as their allotments were not made on any private negotiations, but after wide advertisement in newspapers inviting applications from all persons who fulfilled the eligibility criteria; and that all applications received were evaluated through an independent agency and allotments s were made as per their recommendation. They submit that the process of allotment was fair and normal. They contend that failure to invite tenders or hold public auction would not vitiate the allotments.

43. But the issue in these cases is different. The principle C laid down in the cases relied on by the appellants would be of some assistance in a situation where there are no specific rules, regulations or policy guidelines governing the procedure as to how allotments are to be made, or contracts are to be awarded, or licences are to be issued. Those decisions may D also be of some assistance while dealing with a grievance that all persons interested or all eligible persons were not given an opportunity to apply. The state government has found that the NOIDA Commercial Property Management Policy required allotment of commercial properties only on sealed tenders or E public auction basis; and if the said requirement was ignored and allotment is made at a fixed rate, contrary to the specific terms of the policies of NOIDA; and that allotment at fixed rate basis had resulted in a huge financial loss to NOIDA.

44. Allotment of commercial plots is governed by the NOIDA Policies and Procedures for Commercial Property . Management, 2004. Under the said policy, commercial

properties of NOIDA can be allotted only on sealed tender basis or by way of public auction. For this purpose NOIDA has to fix G a reserve rate and the person who gives the highest bid/offer above the reserve rate, who is otherwise eligible, is allotted the plot. The said policy in regard to the procedure for allotment of commercial properties was not amended or modified to provide for allotment of commercial properties for hotels at .

. H

A fixed prices. The allotment of commercial plots at fixed rate was therefore clearly contrary to the said regulations of NOIDA.

45. We may also refer to the NOIDA Policies and Procedures for Industrial Property Management, 2006 as

8 amended on 20.3.2006 ("Industrial Property Management

Policy'', for short) iri this connection. It divides the industrial sectors in NOIDA into three industrial Phases as under :

(1) Phase I Sectors from 1 to 11 and 16

c (2) Phase II Includes Phase-II, Phase-II Extension/ Hosiery Complex, Sector-80, 81 and 83

(3) Phase Ill Includes Sector-57, 58, 59, 60, 63, 64 and 65.

D It provided that allotments of industrial plots in Phase I should

be made on the basis of sealed tenders, the reserved rate being Rs. 7400/- per sq.m. It further provided that allotments of plots in Phases II and Ill should be made at fixed prices of Rs.2100 and Rs.4000 per sq.m.

46. The appellants submitted that the said NOIDA Commercial Management Policy and NOIDA Industrial Management Policy are not statutory rules made by the state government under section 18 of the Act, nor are they statutory F regulations made by NOIDA under section 19 of the Act. It is submitted that the NOIDA Commercial Management Policy is merely a set of guidelines and directives prepared by NOIDA in regard to the terms and conditions for transfer of commercial properties of NOIDA and such guidelines could be altered by NOIDA at any point of time. It is pointed out that the said NOIDA G Commercial Management Policy itself stated that it could be amended/modified/altered without any notice. It was submitted that when NOIDA adopted the state government policy dated 22.5.2006 for allotment of plots for hotels at industrial plot rates, the NOIDA Commercial Property Management Policy stood H

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 133

[R.V. RAVEENDRAN, J.]

modified by incorporating an exception to the directive requiring A allotment of commercial plots only by sealed tenders/auction, that allotment for hotel plots could be at fixed rate basis instead of tender basis or auction basis. It was further submitted that at all events, when brochures were issued on 17.10.2006 containing the "special terms and conditions for allotment of B hotel plots" providing for allotment at the fixed rate of Rs.7400 per sq.m., it amounted to declaration of a separate policy for plots allotted or hotels and the guidelines contained in the NOIDA Commercial Property Policy ceased to apply to hotel plots. c

47. In Sachidanand Pandey (supra), the legal position as to the need obeying orders/instructions/procedures was succinctly stated by Chinappa Reddy, J.

"statutes and statutory orders have, no doubt, to be D obeyed. It does not mean that other orders, instructions etc. may be departed from in an individual case, if applicable to the facts. They are not to be ignored until amended. The government or the Board may have the power to amend these orders and instructions, but E nonetheless they must be obeyed so long as they are in force and are applicable"

(emphasis supplied)

In Home Secretary v._ Darshjlt Singh Grewal - 1993 (4) SCC F 25, the need to adhere to policy guidelines was emphasized:

"It may be relevant to emphasize at this juncture that while the rules and regulations referred to above are statutory, the policy guidelines are relatable to the executive powers G of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated it to all concerned including the Chandigarh Engineering College, the Administration is

_!:L

A bound by it. It can, of course, change the policy but until that is cone, it is bound to adhere to it."

(emphasis supplied)

It is thus clear that where an Authority makes regulations and B issues polices and procedures, they are intended to be followed

and complied with. They cannot be ignored or avoided unless superseded or amended. The fact that Authority has the power to amend the regulations, policies and procedures, does not mean that they can be ignored. As long as they are in force, C they are required to be obeyed by the Authority.

48. The state government policy dated 22.5.2006 or its adoption by NOIDA on 5.6.2006 did not amend to the regulations, instructions, policies and procedures of NOIDA. If

0 the said Tourism/Hotels development policy dated 22.5.2006

contained any procedure which was at variance with the existing regulations or procedures of NOIDA, such procedures in the policy dated 22.5.2006 could come into effect only by NOIDA amending its regulations and Property Management Policies.

E As per the 1991 Regulations and 2006 Building Regulations,

hotel buildings are commercial buildings and use of land for hotels is commercial use and any plot allotted for hotels is a commercial property. Therefore any allotment of a plot for hotels should comply with the NOIDA Commercial Property Management Policy, 2004. Unless the NOIDA Commercial F Property Management Policy was amended, providing for

allotment at fixed rates, in regard to any sub-category of commercial plots, allotment of a commercial property belonging to NOIDA otherwise than by sealed tender basis or auction basis will be an allotment in violation of and contrary to, the G regulations directives and policies of NOIDA. The fact that

NOIDA was acting in pursuance of the government policy dated 22.5.2006 would make no difference. The government policy itself very clearly stated that if the implementation of the policy required amendment of the rules, regulations and procedures H of the development authorities, the same had to be carried out.

ITC LTD. v. STATE OF UTTAR PRADESH & ORS. 135

[R.V. RAVEENDRAN, J.]

49. The failure to follow the procedure prescribed in the A NOIDA Commercial Property Management Policy is a violation of the policy and such violation has resulted in loss to the public exchequer. The allotment on sealed tender basis/auction basis is provided, only in regard to commercial properties and not in regard to properties earmarked for residential or institutional B uses. It is also not provided for properties earmarked for industrial use (except in regard to plots situated in industrial areas in Phase I which because of their very advantageous locations are apparently considered to be very valuable). The properties are sold by tender/auction basis with a reserve rate, c so as to secure a higher price/rate on account of the healthy competition among the applicants. The higher revenue would enable NOIDA to subsidize the price of plots for allotment to weaker sections of the society for residential use or for allotment of plots for institutional use or for various D developmental activities. Therefore once a policy is made in regard to commercial properties, it has to be complied with.

50. There is no doubt that the scheme of allotment contained in the NOIDA Commercial Property Policy could be altered or amended by carving out a different procedure for E hotel plots. But that should have been by placing the said Commercial Property Policy before the NOIDA Board for consideration and amendment with reference to hotel plots to be allotted as per government policy dated 22.5.2006. The policy was neither before the NOIDA Board for amendment, nor F was it amended. The violation of the regulations and policies of NOIDA may be unintentional and a bonafide mistake on account of a mis-reading of the requirement of the policy dated 22.5.2006. Nevertheless it is a violation. If there is a violation of the regulations and policies of NOIDA in making allotments, G the state government can certainly interfere under its revisional jurisdiction.

(c) Whether the rate charged was erroneous and has led to any loss?

51. The next question is whether the violation has resulted in any loss of revenue to NOIDA. This requires consideration of the question whether the allotment rate is correct. We have already held that allotment of commercial plots by NOIDA was

possible only by inviting sealed tenders or by holding auction.

B That means that any allotment at a fixed rate (equivalent to the reserved rate for industrial plots) is irregular and in violation of the regulations and policies of NOIDA.

52. But the appellants contend that there was no irregularity in the allotment rate nor any 'loss' to NOIDA by allotting plots C at the rate of Rs.7400/- per sq.m. and that it was validly fixed.

We may briefly refer to the reasons given in support of their contention : The standard methods of attracting capital investment or to encourage a particular industry is to allot land at attractive terms or at concessional prices and give D exemptions and rebates in regard to certain state taxes.

Therefore, if the government took a conscious policy decision to allot plots for hotels at industrial plot rates, which is considerably lesser than the commercial plots rates, it is not to be considered as a loss to the exchequer, but should be E viewed as a part of its strategy to secure investment in hotel

industry in the state. Allotment prices fixed by the Authority mainly depends upon the earmarked use of the land and incidentally upon the situation, proximity or physical advantages of a land. The same land may be allotted at different rates, F depending upon its earmarked use. The policy of the government required allotment of plots to hotels at a fixed rate, that is, the rates chargeable to industrial plots. The government policy did not contemplate allotment of plots for hotels by sealed tenders or by auction. NOIDA adopted the government policy G and fixed the allotment rate equal to the reser.1e rate applicable

to industrial plots in phase-I which was Rs.7400/- per sq.m. The allotment rate by NOIDA primarily depends upon the earmarked use and secondarily the situation, as can be illustrated from the notified rates of NOIDA itself. The NOIDA Board resolution H dated 20.3.2006 shows that the allotment rate varied between

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[R.V. RAVEENDRAN, J.]

Rs.22100 to Rs.7500 in respect of residential plots depending A upon the sector. If the same plots were to be allotted for group housing, the allotment rate varied from Rs.31,000 to Rs.12,000 per sq.m. In and around the same area, if the allotment was for institutional use, the rate could vary between Rs.5000 to Rs.12700 per sq.m and if the allotment was for industrial use B depending upon whether the plots were situated in Phase-II and Phase-Ill, the rate would be either Rs.2100 or Rs.4000 per sq.m, The industrial plots situated in Phase-I, were to be allotted by inviting sealed tenders with the reserve rate being Rs.7400 per sq.m. Thus though the sector in which the property was situated c had a bearing on the allotment rate, the main criterion for fixation of rate was the earmarked use, that is whether the land was earmarked for residential, institutional, industrial or commercial use. If the land is earmarked for commercial use, NOIDA resolution dated 20.3.2006 required the allotment to be by D sealed tenders or by auction with the reserved rate being .Rs.30000 per sq.m. If the very same plots were to be earmarked for institutional use (for research/software/ information technology services) the allotment rate would be only Rs.5000 per sq.m and if they were earmarked for industrial E use, the allotment rate would be only Rs.2100 or Rs.4000 per sq.m. It is therefore contented that allotment at a fixed rate determined by NOIDA, does not involve any loss.

53. It is true that allotment of plots at different rates for different purposes may not give rise to a 'loss' to NOIDA. For F example, NOIDA at its 141st meeting dated 8.1.2007 fixed different allotment rates for different land uses in a multi-product special economic zone: (a) Commercial land use: Rs.70000/- per sq.m. (b) Residential land use: Rs.12000/- per sq.m. (c) Institutional/recreational land use: Rs.5000 per sq.m. {d)

G Industrial land use: Rs.4000 per sq.m. All these lands are situated in a specific demarcated area (special economic zone). The above pricing by NOIDA did not depend upon the situational importance of the area or accessibility of the area or nearness to any landmarks or main roads nor on any physical H

A advantages or disadvantages of the particular lands. The prices were purely dependent upon the earmarked land use. The same land if it was earmarked for commercial purpose would have fetched Rs.70,000 per sq.m. and if it was earmarked for residential use would have fetched Rs.12,000 per sq.m. and if B earmarked for industrial use, would have fetched only Rs.4000

per sq.m. Therefore, when NOIDA allotted plots for residential use at Rs.12,000 per sq.m. it could not be said that it lost Rs.58,000 per sq.m. on the ground that the land would have fetched Rs.70,000 if it had been allotted for commercial use. c Similarly it cannot be said that NOIDA suffered a loss of Rs.66,000 per sq.m. if the land was allotted for industrial use for Rs.4000/- per sq.m on the ground that it would have fetched Rs.70,000 per sq.m. if it had been allotted for commercial use.

Therefore, there is no concept of "loss" to NOIDA, when it takes

0 a decision to earmark different parcels of land for different uses and fixes different rates for them. Therefore mere earmarking of particular land for allotment to hotels which is a commercial activity at industrial plot prices, does not mean there is a loss in respect of an amount equal to the difference between the rate of commercial plots and rate of industrial plots. Any decision E to allot plots to hotels at industrial rates, by itself, did not cause any loss, as such a decision was intended to be an incentive to attract investment. But there will be a 'loss', if a plot which is earmarked for commercial use, allotted for a commercial purpose, which is required to be allotted at commercial rates F by tender or auction, is erroneously charged either at a

residential plot rate or an industrial plot rate.

54. It is next submitted by the appellants that the state government being conscious of the fact that commercial plot G prices was many time more than industrial plot prices, and that it will not be possible to attract capital investment in higher category hotels unless some substantive incentive was given, purposefully and deliberately directed that the plots for hotels even though for commercial use should be charged at industrial H plot rates. The said policy was accepted 'and implemented by

ITC LTDi v:'STATE~OF UTTAR PRADESH & ORS. 139

• 1• -i "<[R.V. iRAVEENDRAN, J.}, r

NOIDA•by fixing the'allotrilentrate at Rs.7400 sq.m. Therefore, A in respect of commercial plots allotted for hotels, the rates should be as applicable to industrial plots. In other words, among commerciatplots, a sub-category of hotels was created entitling allotmE!nt at Rs. 7400 •in view of the policy of the • government.. rt ls pointed 1out that such sub-categorization with a lesser"rates:is:a'stanaatd practice with NOIDA with reference to allotment for different institutional uses. . l; r~"':i*' .. , i!1c:f tr.:· ) ..... a-· .• , . . ;•· 5~. The-said S!Jbmission no doubt, is persuasive and , attractive: But they.ignore the regulations and policies of.NOIDA

-which requifE!. the llotmnt.'ofcommercial P.lots to be by sealed C tender or bY:P.ubl!9 act!ol}.:lf e1ny.su~-categorisation was to be '.made in regard tO.hoels,!it .coutdb~ only.by _ameridment of the . concerned 0 regu,~_tions al}d. th~ C9mmrcial.P.roperty

, Manageme11t.Policy,-to1prpy_id~ for.alloment in regaq to.such .

:ub-categow.atfl?'(e<J_ !n.{iustrial plc?t rtes,.instea~ f ~Y !nviting D

,_seald ten_gers_:, c;>fi hglql'l9:au~on. W~ have already noticed the

, cheme e11visgd.:; by~tie pl_is; y was to create a separate _

caegory of:use i11, rgaf{j to hotels and allot surplus land which .. was not earmarked for any specific use, for the said purpose of hotels~ As thera116fnienfls 'of commercial plots governed by E . NOIDA Cc)rrimercialProperty Management Policy;; and as.the

reserve' fate itselfwas"'Rs:3oOOO/- per sq:m; it has to be held that allotment at'Rs:7;400 p'er'sq-:ni.,.caused loss and violated

I the regulatloris'an(f policy..,.of NOIDA . . - SS. -; h~ ~;;,~~~~· ~~e\~~ed out the ~~nc~unt F of allotments:ingmade at a fixed rate of Rs.7400/per.sq.m. instead of Rs;~70,000/~ .per sq:m,; as Rs.4,721/14crores. as detailed below : . - ' A.

Thevalu~ of~.1,4i..pot~ (~.~~.583, , ,, ,,' _ - -G , sg. 111.) 1.@i~~.7Q!09.,0hP.ef sq.m .. , Rs.1838.08 crores

r_ ,,:Jr :tr~&1;;>!~'11J--_:i.1:r :-,.~.r\ ,,,. . ., i:· •. -~ '' :;:r. --~~ 18'. _ Actual premiYITll~~iv~, from.the. , . ... appeltants; in.regard 1to the 1,1; plf?'fj,; fl'!i'Ul~H; tfJ !'JUh>V .~ , 1 @ Rs. 74001;, per-sq.m.

Rs.194.31 crores H

Loss of premium (B - A)

Add: Loss of revenue by way of lease rent during the lease

Rs.1643.77 crores

B period of 90 years as a consequence of lesser premium Rs.3077.37 crores

Total loss to public exchequer

(C + D) Rs.4721.14 crores

57. We find that the calculational error in arriving at the total loss, even assuming that the commercial rate is Rs.70,000/- per sq.m. The loss of Rs.4721/14 crores arrived at by the state government includes Rs.3077/37 crores as loss of rental

revenue during 90 years in future. If today's value of tomorrow's .. 'loss' income is to be calculated, that can not be done by simply taking the aggregate of the 'loss' over the future period as today's loss. There are well. recognised actuarial methods to calculate the present value of a future loss. !n fact, this is clearly recognized by NOIDA by giving the option to the lessee to pay E by way of a lump sum, an one time lease rent equal to the lease rent of 11 years of the lease instead of paying the annual rent for 90 years. In other words, NOIDA has itself calculated the present value of the future rental income for 90 years as being equivalent to 11 years' current rent. As the rent per year is 2'.5% ' F of the total amount paid for the plot, the one time lease- rent which is eleven times the present an'nual rental value: will be 27.5% of the amount paid as premium. On that basis the loss will be as under : - ' ·

G A.

The area of 14 plots 2,63,500 sq.m.;

Value of 263500 sq.m. at Rs.70,000/- ' per sq.m.

Rs.1844.50 crores

H C.

Value of 2,63,500 sq.m. at

ITC LTD.· v . . STATE OF UTTAR. PRADESH.:& ORS. 141 [R.V. RAYEENDRAN, J.]i , i . . ' ' ' . i ; j:- Rs.7400/-, per sq.m.· -.,, Hs.194.99 crores A

O,. Difference in premium•(B -:-C) . Rs .. 1649.51 crores .

•r t"• ,

"' • J. t . _! , ._. • ~' t E .. Add : .One-time l_ease rent at.27.5% Rs.453.62 .cro_res :;· •. (equivalent to rentaL_inc9nie oyer .. , - _, , 1 r - • B

1 • 90 years) ·, -- . ·, • .,, -· - .·, .. _ ., .. " ,,.-,, .., "· ·- -- ... ... ' ... ' ....... 1 ' '"'1 ..4 -·· ' ,

I . ' 'It .. : 1 ... .

Total difference (D + E) Rs.2103.13 crores* (*Plus stamp duty & registration 1 charges.on the increased premium/rent) .'. ' -,~ ........ ·,-ll,,__f _:.~ . . (,,-,~- -~·--~,~·, .• ~· ....

IV. What should be theconsegu'ence of the violation?

-' -~- l :_,~ .- t .- i -·~· -~' j.~,·

.J'

· 58. Let"tis sum: up the position! The allotment of commercial 1plots by NOIDA to 1ttie appellants forsetting up hotels is valid. There is ho violation of the regufationsor policies; 0 _. of- NOIDA in allotting comm'ercial p1ots'forrh6te!s.rtherefcfrer ' cancellation 'of allotment is unsustainable. Thereis'howeve'r violation of the regulations rand policies of. NOlDA in making ' such allotmenf on'fixed 'rate ba'sis, instead' of inviting sealed:' tenders or-holding public:auction.'This violation:occurred; on· E account of a-mistake on the'pait ofthe•officers ofN01DA.in" misinterpreting the government policy'dated 22:5:2006., The' allotteeswere in no way to be' blamed for the mistake. Nor were the allottees guilty of any suppression; misstatement<or".i misrepresentation of facts, fraud; collusion or .undue influence in obtaining the allotments at Rs.7400 per sq.m. The mistake F. was found out by the state govenment, .iri exercise' of revislonaf''

f ' _ fy -_- , ·~ 'f" ·~ I •' ... .,. .., 1-1 jurisdiction. But by then the allotment was followed by payment ·

of premium, execution 6fthe 11ease deed, 'and. Clelivery o( possession. By the time the state government decided that the allotment should be cancelled-the transaction was complete in

G,: all respects. Tlie tact that the reglstrati'9rtof, some of.the.leases, . ' ' ' - . - -

- ,.. ... . . ) ws kept 'p~~~n~'. .,), Q .vi~'vl{ ';>qf3'"!, J~Jpu!~Ae)~Ji~,9. ,\9,, elytieDw would o_ ·.e relP.liant i tli1.ss. m. o_sejn!+i::e circums.tances.th, e. .. , . ja ~I~FJ;,:Yt1' i:t~~ ~, ~;;111<.:1; tl#1r;..tunrlu lq-t """) High -~9' , y}t\Wtffi~ '' ' ,1mfl1~1;, urep,\jdtQ.dtJ~~~E H m~; rif~~Hlr~~ ~q<;>,~, sL~al~~'il.1b~1 !Pou~1% <@q~&r9,~[1?Mo1 11

A High Court directed reconsideration in the light of its observations that the allotments of commercial plots for hotels were not in violation of any regulations and the allottees were not guilty of any objectionable conduct. The High Court therefore wanted to save the allotment but rectify the error committed in B regard to the valuation and remanded the matter for fresh consideration. However, the appellants challenged the judgment of the High Court and when this Court gave an opportunity to the State Government to pass fresh orders independent of the observations of the High Court, after hearing the parties, it has c reiterated the cancellation, holding that the mistake has resulted in a lesser allotment price. According to respondents, the rate of premium ought to have been Rs.70,000/- per sq.m. being the market rate, even though the reserve rate was only

Rs.30,000/- per sq.m. The question is, on the facts and

0 circumstances, when the allotments are valid and only the fixation of premium is erroneous, whether cancellation of leases is warranted or whether charging the rate claimed by the respondents (Rs.70,000/- per sq.m.) wnuld be the appropriate

' course.

E (i) What is the cause for the violation? ,,

59. The NOIDA Board adopted the above policy dated 22.5.2006 at its meeting held on 5.6.2006 and directed implementation of the policy so as to ensure that construction F of hotels in the allotted plots could be completed before the commencement of Commonwealth Games in 2010. Thus NOIDA Board was conscious that the policy dated 22.5.2006 had something to do with the time bound need to have several 5/4/3 Star hotels in a functional condition by the year 2010.

G Taking note .of the direction in the government policy, that the

allotment of plots for hotel industry should be at industrial rates, NOIDA decided to implement its scheme for allotment of hotel plots, by adopting the rates that were fixed by it as the reerve rate for plots in industrial area Phase I (Rs.7400/- per sq.m.) as the allotment rate. When the said allotment rate was fixed H for hotel plots on 5.6.2006, the plots had not been identified

ITC , LTD. v. STATE OF UTIAR PRADESH & ORS. 143 ·""' '"'

' [R.V. RAVEENDRAN, J.] .

for allotment of hotels. When NOIDA Board resolved to A implement the' poiicy' dated 22.5.2006 a"nd allot plots for hotels at 'industrial rates' that is rates applicable to its plots in industrir; i area (Phase I), apparently it interpreted the policy as d:re:cting that all plots allotted for hotels should be allotted at fixed industrial rate. It is also possible that when the rate was B fixed, it assumed that some surplus land (not earmarked for any . specific purpose)' or land earmarked for industrial use, will be .. allotted to hotels; and when the plots for hotels were

subsequently identified by a Committee headed by the Circle Commissioner, Meerut, in areas earmarked for commercial use c in the. Master Plan, it was assumed by NOIDA officials that in view of the policy of the state government and in view of the NOIDA Board resolution dated 5.6.2006, whatever or whichever plots were. identified. or earmarked as hotel plots should be charged at the industrial plot rate that had been already 0 decided. The error was in assuming that any kind of plot (even commercial plots covered by a special policy requiring disposal by tenders/auctions) should be allotted at fixed industrial rate.

The pressure from Central Government regarding need to have

sever~! .:; tar, fi9tels before the commencement of E Commonwealth Games and the terms of the Government Policy dated 22.5.2006, made them to proceed on that basis, without further verification. That is how the Brochures

(advertisements) showed Rs.7400/- per sq.mas the allotment rate for hotel plots. Thus the charging of premium at a rate of Rs.7400/..tper sq.m. In regard to hotel plots, is purely on account F of the mistake on the part of the officers of NOIDA misreading the government policy dated 22.5.2006 and assuming that it would override NOIDA's regulations and policy regarding commercial properties,

(Ii) Whether allottees were guilty of fraud/ob!ectlonable eoo{luct

60. The next question that arises for our consideration is whether the charging of a lesser rate for the allotment of plots H

A or fixation of Rs. 7400/- per sq.m. as the premium was a consequence of any misrepresentation, fraud or suppression of fact, or collusion on the part of the appellants. It has never been the case of respondents that any of the appellants had at any time misrepresented or suppressed any fact or had B committed any fraud or had colluded with any officer of the

State government or NOIDA or in any way influenced the officers of the state government or NOIDA in either obtaining the allotment or in the fixation of the allotment rate. Neither the direction dated 1.8.2007 of the state government under section c 41 of the 1993 Act nor the letters of cancellation dated 3.8.2007 issued by NOIDA attribute any such improper motive or conduct to any of the appellants.

61. Before the High Court, the respondents clearly admitted that they were not attributing any misrepresentation D or fraud or other objectionable conduct, to the appellants. The stand of the respondents was that the allotments at the rate of Rs.7400/- per sq.m. was due to a mistake on the part of NOIDA officials. The High Court has also ruled out any underhand dealing or malafides in regard to fixation of rate of premium at E the rate of Rs.7400/- per sq.m. The said findings of High Court remain unchallenged. In fact the finding is sound and is not open to challenge. Further, when this Court directed the State Government to pass fresh reasoned revisional order, uninfluenced by the reasoning or findings of the High Court, the F State Government has passed detailed orders dated 8.9.2008

for cancellation of plots. Even in these orders dated 8.9.2008, the state government has not imputed any mala tides, misrepresentation, fraud or suppression of fact, collusion, undue influence or any other illegal act or improper conduct to any of G the appellants. The state government has passed the order of

cancellation dated 8.9.2008 on the ground that NOIDA had itself violated the regulations and policies of NOIDA leading to loss to public exchequer.

H (iii) What should be the remedial action?

1. ITC' LTD. v. STATE OF UTTAR PRADESH & ORS. 145

;1 [RV. RAVEENDRAN, J.]

r .::. ll 62. If.after effecting a transfer, the transferor finds that he A had stipulated a lesser consideration (sale price or lease premium) for the transfer, due to a mistake of fact or wrong understanding or misreading of any law (and such mistake was r; ot caused on account of any fraud, coercion or misrepresentation by the transferee) what is the remedy of the B transferor? In private law, the transferor may have no remedy, c:s completed transactions of transfers cannot be re-opened or i.cancelled.· A 'transfer' of property is an executed contract.

 Section 4 of Transfer of Property Act, 1882 provides that the , chapters and sections of that Act relating to contracts, shall be c ··taken as part of the Indian Contract Act, 1872. Section 20 of Contract Act provides that where both the parties to an .•agreement are under a mistake as to a matter of fact essential . to the agreement, the agreement is void. But the explanation

 thereto provides that an erroneous opinion as to the value of 0 --the thing which forms the subject matter of the agreement is not to be deemed a. mistake as to a matter of fact. Section 21

LI of Contract Act provides that a contract is not voidable because

1 . it was caused by a mistake as to any law in force in India. "''='Therefore, having regard to the provisions of Transfer of E

_:,, Property Act and Contract Act, a transfer can not be cancelled

:: On the ground that parties were mistaken about the ·- consideration. -

63. The position is however different in public law. Breach of statutory provisions, procedural irregularities, arbitrariness F and mala tides on the part of the Authority (transferor) will furnish grounds to cancel or annul the transfer. But before a completed transfer is interfered on the ground of violation of the regulations, it will be necessary to consider two questions. The first question is whether the transferee had any role to play G (fraud, misrepresentation, undue influence etc.) in such violation of the regulations, in which event cancellation of the transfer is inevitable.

(63.1) If the transferee had acted bona fide and was blameless, it may be possible to save the transfer but that again H

A would depend upon the answer to the further question as to whether public interest has suffered or will suffer as a consequence of the violation of the regulations:

(i) If public interest has neither suffered, nor likely to suffer, on account of the violation, then the transfer may be allowed to stand as then the violation will be a mere technical procedural Irregularity without adverse effects.

(ii). On. the other hand, if the vilatio" of the regulations leaves or likely to leave an everlasting adverse effect or impact on public interest (as for exampl~ when it results in environmental degradation or results in a loss which is not reimbursable), public Interest should prevail and the transfer should be rescinded or cancelled.

(iii) But where the consequence of the violation is merely a short-recovery of the consideration, th~ transfer may be . saved by giving the transferee an opportunity to make good the short-fall in consideration.. ·

(63.2) The aforesaid exercise may seem to be E cumbersome, but is absolutely necessary to protect the sanctity of contracts and transfers. If the government or its instrumentalities are seen to be frequently resiling from duly concluded solemn transfers, the confidence of the public and international community In the functioning of the government will F be ishaken. To save the credibility of the government and its

lnstrumentalitles, an effort should always be made to save the concluded transactions/transfers wherever possible, provided

(i) that It will not prejudice the public interest, or cause loss to public exchequer or leeid to public ml$chlef, and (II) that the G transferee is blameless and had no p<irt ta play In the vlolatlon

of the regulation.

(63.3) If the concluded transfer cannot be saved and has to be cancelled, the Jnnocent and blameless transferee should H be reimbursed all the payments made by him and all

ITC LTD. v. STATE OF UTIAR PRADESH & ORS. 147

{R.V. RAVEENDRAN, J.] .

expei:iditure. incurred by him in regard to the, ransfer with A appropriate interest. If some other relief can be-granted on grounds of equity without harming public interest and public exchequer, grant of such equitable relief should also be considered. ·

64. We may give an example from service jurisprudence, B

where a principle of equity is frequently invoked to give relief tu an employee in somewhat similar circumstances. Where the pay or other emoluments due to an employee is determined and paid by the employer, and subsequently the employer finds, C {usually on audit verification) that on account of wrong understanding of the applicable rules by the officers implementing the rules, excess payment is made, criurts have . recognized the need to give limited relief in regard to recovery of past excess payments, to reduce hardship to the innocent employees, who benefited from such wrong interpretation. A D three Judge bench of this Court in Syed Abdul Qadir vs. State of Bihar [2009 (3) SCC 475] stated the principle thus :

"This Court, iii a catena of decisions, has granted relief against recovery of excess payment of emoluments/ E allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if.such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a F particular Interpretation of rule/order, which is subsequently found to be erroneous.

The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from G _, the hardship that will be caused if recovery is ordered. But, / if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong H

payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess."

(emphasis supplied)

65. 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 C 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. According _to the State Government, the commercial plots would have fe.tch_ed a D premium at rate of Rs.70,000 per sq.m at the relevant time (October 2006 to January 2007) and NOIDA had been denied the benefit of that allotment rate, by reason of allotmen.t of the plots at Rs.7400/- per sq.m. Therefore if the appellan_ts are wiling to pay the balance of premium as claimed by E respondents, the teases need not be interfered. '

66. In this case the violation of the policies of NO-IDA in making allotments has resulted in a lessr premium being charged than what would have been applied for commercial plots. According to respondents the premium that would have F been charged was Rs.70,000/- per sq.mas against Rs.7,400 per sq.m. Therefore, the violation of the guidelines in regard to disposal of commercial plots has resulted only in a. loss of revenue by way of premil.Jm and if this could be made up, there is no reason why the leases should not be continued.

67. The appellants of course disputed the claim for a premium at the rate of Rs.70,000/- per sq.m on several grounds. They contended that Rs. 70,000/- was only a circle rate for purposes of registration and was not the actual "market H value". It is also contended that even if Rs.70,000/- was the

ITC LTD. v. STATE OF'UTTARPRADESH & ORS. "149

[R.V. RAVEENDRAN, J.]

market value, it would represent the value of freehold land and A not of a leasehold interest. It is submitted that on account of the following restrictive factors in regard to their leases, the value

.r.;1f the leasehold interest will be far less than the value of

;'reehold property:

(a) A transferee has absolute ownership in a freehold property, whereas in a leasehold for 90 years, the lessee has to surrender the property to the lessor at the end of 90 years.

(b) In regard to a freehold property, there is no liability to C pay any rent. But in these leases, the lessees are liable to pay annual rent equivalent to 2%% of the total amount paid for the plot as lease rent with an increase of 50% in the annual rent once every ten years. This is a continuing liability for ninety years, unless the lessee chooses to pay D eleven years current lease rent as 'one time lease rent'. ·

(c) The leases are subject to the following among other restrictive covenants: (i) they should commence construction within six months of the allotment and E complete the Hotel Project by December, 2009, so as to make the hotel functional by June, 2010 with the threat of

frfeiture if the lessee failed to completeJhe project; (ii) right to transfer being subject to permission from NOIDA and subject to the claim of NOIDA for unearned increases;

(iii) risk of termination for breach and resumption of F possession; and (iv) the restriction regarding user, that is, the entire property having to be used only for a hotel with only 5% of the FAR being permitted to be used as commercial space. It is submitted that freehold properties will not be subject to any of these restrictions.

68. The respondents admitted that a transfer by sale is more valuable than a transfer by way of lease, but contended that long term leases for 90 years fetch a premium on par with prevailing sale price. It is further submitted that as most of the H

A properties in NOIDA are leasehold properties, the circle rate represents the premium for long leases and not freehold prices.

It is pointed out that even in regard to any sale by NOIDA, restrictive covenants regarding use could be imposed and enforced. The respondents also alleged that when NOIDA B invited applications for the unallotted hotel plots, hardly a year

later in March 2008, as against a reserved rate (premium) of Rs. 77000/- per sq.m. fixed by NOIDA, prospective applicants were willing to pay more and that would show that their cl.aim that prevailing premium rate in 2006-2007 was Rs. 70,000/- per c sq.m. was justified. The respondents have produced copies of some of the tenders received in respect of the 2008 offer, in support of their contention.

69. The appellants responded by pointing out that the terms of lease under the 2008 scheme of NOIDA offering hotel plots D for allotment were far more favourable to the lessees, when

compared to the terms on which plots were offered to them, and therefore neither the reserve rate for 2008 offer, nor the responses thereto will be a safe guide to determine the market value of the leasehold interest (premises) in 2006-07. They E referred to the following significant differences in the lease

conditions which made the offer under the 2008 scheme far more attractive and valuable for a lessee, when compared to the terms of lease offered in 2006-2007 to the appellants:

F s. Description Position under 2006 Position under 2008

No of the term allotment allotment

Purpose For setting up hotels For development of and with only 5% of FAR hotels with commercial permitted permitted to be used activities with 40% of use as commercial space FAR permitted to be G used as commercial space

Payment of 50% in 30 days 25% within 30 days

H premium 50% in 180 days Balance 75% in 16 half

•'1rc 1Ufci. v:STATE OF UTIAR PRADESH & ORS. 151 "'-'"'' " ...• c[°R-.V. RAVEENDRAN, J.]

. - ' yearly instalments

. ' l •· .. (alongwith interest at

A '. 11 % from date of Ii , '•: t '' I . ' . allotment compounded . ,. \ ..... ·.•• ... half yearly) . s:· 'Triinsfef of· The lessee shall not The lessee is entitled to B ., rights .. . tranfer the plot - transfer after obtaining

;•J I L'fic. ·, before the hotel completion certificate . ' :• becomes functional. and no transfer charges

1 The Authority may or will be applic;:able if the

plot

t ... , - . may not allow transfer built up commercial

If° transfer is permitted, space is transferred c

, J \," . .,

II .. .. transfer charges within two years from

'f'L." ~: ·-.. ' shall be payable to the date of issue of

h•~ .. ;!-,.I~ 't the Authority. completion certificate

~Therefore if the appellants (2006-2007 allottees) are to be o extended the.aforesaid benefits offered to allottees under the 2008:SChfi!me:1the rate-of-Rs.70,000/- per sq.m. (the rate of 2008 scheme was '10% more than Rs.70,000/- per sq.m.) clairhed'by the respondents becomes logical and reasonable.

We1therefore find.no reason to reject the claim of respondents E that!the:auotment:fate should be Rs.70,000/- per sq.m. We accord_ingly _grant the appellants an opportunity to save the leases 'by'paying 'the difference in premium at Rs.62600/- per

~~~·-{ .... " ~., ... ...... sq.m: to make 1t upto Rs.70,000/- per sq.m.

"70Ctn view of the above we dispose of these appeals as F

foll9~ :- ._.. . .• ,.,:r : .

7(i) The order of.the High Court setting aside the revisional .• order dated fa:2001 of the State Government and the P eg~c::quentiai'ordrs of cancellation of allotment of plots G

pP~ed;3.8.t.OP7:.~Y .NOIDA, is affirmed.

I (ii) cThe revis!onal orders dated 8.9.2008 -passed by the •.•.. , . . State Government cancelling the allotmentS'!Of plots to " ,, .appellants, re set aside.·.. ., ... ~.--- ' • ·riit-::ri ,.

(iii) The appellants are given the option to continue their respective leases by paying the premium (allotment rate) at Rs. 70000/- per sq.m. (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:

(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 sq.m. 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.

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 and the lessee incorporating the . aforesaid changes.

(iv) If any appellant is unwilling to continue the lease by . payi, nQ.th~., higher .premium as aforesaid, or fails to

.,(3~~~t~AA~\'?lihflS,.pegp, arai{.H)), above1by 30.9.2011,

the allotment and consequentiahlease:1n)its favour shall

ITC.1LTO.:-v. STATE OF UTTAR PRADESH & ORS. 153

[R.V. RAVEENDRAN, J.]

stand cancelled. In that event, NOIDA shall return all

I ' amounts paid by such appellant to NOIDA towards the

llotment and the Jease, and also reimburse the stamp duty and registratio'n charges incurred by it, with interest at 18% . _per annum from the date of paymenUincurring of such

.~.amounts to aateof reimbursement.by NOIDA. If NOIDA

rturhst11e amount to the appellant within 31 .. 12.2011, the , rate of interest payable by NOIDA shall be only 11 % per

annum insteacfof 18% per annum. ! , r, -

(vi) Parties to1 bear their respective costs.

If t; ~

R.P. 1., ~- -· Appeals disposed of.

l. I

I. I ,,. . .

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