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M/S C.L. Gupta And Sons & Another v. Chairman, Noida & Another - WRIT - C No. - 40235 of 1998  RD-AH 17957 (16 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Misc. Writ Petition No.40235 of 1998
M/s C.L. Gupta & Sons and another
Chairman, New Okhla Industrial Development Authorities and another
Hon'ble Anjani Kumar, J.
Hon'ble Sabhajeet Yadav, J.
This is a writ petition filed by the petitioners under Article 226 of the Constitution of India. Petitioner no.1 is a partnership firm and petitioner no.2 has been authorised to file the present writ petition on behalf of the firm.
The petitioners, as stated in the writ petition, filed an application before the respondents (which shall in short be referred to as NOIDA) on 28th October 1996 for the allotment of 8000 sq.Mts. of land for Administrative Office, Show Room, Research & Development Wing near Delhi to promote their business of export on large scale and further to secure more export orders. The application for allotment of land was accompanied by a project report and a cheque of Rs.50,00,000/- (Rupees fifty lakhs). A copy of the application has been annexed as Annexure-1 to the writ petition. On the aforesaid application the NOIDA allotted the plot of land No.A-22, Sector 62, area 8000 Sq.Mts. at the rate of Rs.2,500/- per Sq. Mt. and total valuation of the plot in question comes to Rs.2,00,00,000/- (Rupees Two Crores). The petitioners were required to complete other formalities as communicated by letter of NOIDA dated 7th November 1996 which is annexed as Annexure-2 to the writ petition. It so happened that though the petitioners had applied for and were allotted 8000 Sq. Mts. of land but on the spot the plot allotted to the petitioners, namely Plot No.A-22 Sector 62, was having an area of 10,000 Sq. Mts. In these circumstances the petitioners were given an offer for purchasing the additional 2000 Sq. Mts of land vide letter dated 15th November 1996 by the NOIDA. This letter is annexed as Annexure-3 to the writ petition. The petitioners gave its consent for the additional 2000 Sq. Mts of land by their letter dated 19th November 1996 and the NOIDA authorities have allotted 10,000 Sq. Mts of land of Plot No. A-22, Sector 62 at the rate of Rs.2,500/- per Sq. Mt. The total valuation of the land thus comes to Rs.2,50,00,000/-. This was informed by the NOIDA by its letter dated 27th November 1996 (Annexure-5 to the writ petition).
The petitioners apart from initial deposit of Rs.50,00,000/- have again deposited a sum of Rs.75,00,000/- through their cheque dated 3rd December 1996. Thus the total money that the petitioners have deposited with the NOIDA is Rs.1,25,00,000/-. Besides the deposit of the aforesaid amount the petitioners have submitted lease agreement through their letter dated 3rd December 1996 which is Annexure-6 to the writ petition. The petitioner was asked by the NOIDA to deposit half yearly instalments of lease rent vide their letter dated 23rd June 1997. In compliance of the said letter the petitioners have again deposited a sum of Rs.41,53,322/-. The receipt is annexed along with the writ petition. The petitioners have stated that as and when any demand is made they have complied the same within the scheduled fixed by the NOIDA.
When the inspection of the land in question was made it was found that the land was plain and have even surface but in the month of February 1997 when the petitioners' requested for delivery of possession was being considered the petitioners found that the portion of land was at a lower level on account of some unauthorised excavating of earth. This came to the notice of the petitioners in the month of February 1997 before the delivery of posession that because of unauthorised excavating of the earth the plot has been converted into a big pond and the area is full of water. The levelling cost of the aforesaid plot would have come to approximately Ten Lakhs of rupees, therefore, the petitioner by their letter dated 8th March 1997 requested the NOIDA to develop the plot by filling the pond by earth failing which the pond shall be filled by the petitioners on the expenses of the authority. A true copy of the letter dated 8th March 1997 is annexed as Annexure-8 to the writ petition. The request was again repeated by letter dated 29th July 1997 which is annexed as Annexure-9 to the writ petition. The petitioners, therefore, have not been in a position to take possession and start work of construction as per their project report though the petitioners had already deposited a sum of Rs.1,25,00,000/- i.e. half of the valuation of the land and lease rent etc. So on account of non-completion of the aforesaid formalities the entire investment of the petitioners is blocked and the petitioners are suffering recurring loss on account of blocked money and escalation of cost of the project.
In the meantime the petitioners in response to the letter dated 23rd June 1997 informed the NOIDA authority that the petitioners had already informed the authority that the petitioners have not been able to take possession because the plot has not been fully made even surfaced and developed and in fact on the spot there is a big pond. The petitioners, therefore, requested the authority to complete the levelling work at the site as stipulated. The NOIDA replied the aforesaid letter by its letter dated 28th August 1997 whereby for the first time the petitioners have been informed that the plot has been allotted to the petitioner on "as is where is" basis, therefore, the petitioners' request for levelling of the plot cannot be acceded and no relief is permissible as far as development of area is concerned. The area of NOIDA is already developed and all infrastructures are existing there. Within 15 days of the issue of this letter to the petitioner the petitioner submitted a reply to the NOIDA authority by their dated dated 1st September 1997 and informed that when the plot was inspected by the petitioners before allotment, it was plain and an even plot but after the plot was allotted to the petitioner and the petitioner deposited the money, a big haul of land excavated from the plot which is now filled in by water and has converted plot into a pond on the major portion of the land. The petitioners, therefore, submitted that the petitioners are suffering losses on account of deposit of money and are not in a position to get possession of their asset namely the plot in question so that the petitioners may proceed with its project. It was, therefore, requested that the matter may be looked into and the land may be filled in by completing the earth work so that the petitioner may take possession and start its project. The petitioner will not be liable for payment of any interest etc.
When nothing was done on the part of respondents, the petitioner filed a Writ Petition before this Court being Writ Petition No.37654 of 1997 which was disposed of by this Court by its judgement and order dated 19th November, 1997 with the following directions :-
"..................... if any representation of the petitioner is pending or a fresh one which may be moved along with a certified copy of the order within two weeks from today shall be disposed of by NOIDA authorities concerned expeditiously preferably within two months from the date of production of a certified copy of this order............."
The aforesaid direction was issued by this Court on 19th November 1997. The petitioners in pursuance to the direction issued by this Court submitted its representation dated 24th December 1997. After the aforesaid representation was filed pursuant to the direction issued by this Court on 19th November 1997 the respondents for the first time by their letter dated 2nd January 1998 have informed the petitioners in reference to the representation of the petitioners dated 24th December 1997 that the authority has taken initiative of filling the pond and necessary direction has already been issued to the concern department of the NOIDA and as and when the plot comes to even level the petitioners shall be informed. This letter has been annexed as Annexure-14 to the writ petition.
The petitioners again wrote a letter to the authority on 24th January 1998. Respondent-authority vide letter dated 7th February 1998 informed the petitioners, giving reference to petitioners' letter dated 24th January 1998, that Project Engineer-I has informed that work of filling the pond over Plot No.22/62 is going on and as soon as the work is over the petitioners shall be informed. Now the aforesaid filling of the pond was going on and as would be clear from the letter dated 7th February 1998 the authority has informed the petitioners that the work of filling the pond is on and the petitioners shall be informed after completion of the same. The petitioners requested for delivery of possession after completion of work. The petitioners through letter of their advocate, Prabhat Goel, dated 8th July 1998 informed the NOIDA that the petitioners though have completed all formalities as long back in December 1996 itself but the delivery of possession is being delayed as the work of filling of the pond has not been completed till February 1998, nor the petitioners are informed by NOIDA. The petitioners, therefore, informed the NOIDA that because of the delay on the part of respondents the cost of the project of petitioners is escalating. The petitioners, therefore, requested the authority to complete the work at the earliest and hand over possession of the plot to the petitioner. The respondent-authority neither completed the work of filling the pond nor delivered possession to the petitioners. The petitioners therefore preferred this writ petition before this Court. It would not be out of place to mention that NOIDA has not decided the petitioners' representation as directed by this Court by its order dated 19th November, 1997.
During the pendency of the writ petition, the petitioners filed an amendment application which was allowed by this Court and the petitioners filed an amended copy of the writ petition.
The petitioners received a letter dated 30th August 1999 issued from the respondent-authority which is annexed as Annexure-18 to the amended writ petition, whereby the petitioners have been directed to pay a sum of Rs.2,15,17,780. The said amount of Rs.2,15,17,780/- includes Rs.1,25,00,000/- towards Ist to IVth instalments and Rs.90,17,780 towards interest. The petitioners after receipt of the aforesaid letter have submitted another representation stating that without any justification or occasion a demand of Rs.1,25,00,000/- has been made and a penalty of interest of Rs.90,17,780/- has been imposed for no fault of the petitioners. The petitioners, therefore, have challenged this demand being illegal, arbitrary and in the facts and circumstances of the case since the petitioners have not been delivered possession of the plot in question, they are not liable to pay the demand of the amount which is completely without jurisdiction. The petitioners have annexed along with their representation the documents which demonstrate that they have performed whatever they have been asked to do for registration of the lease deed as far back in 1996 and because of non delivery of possession the instalments which the petitioners were supposed to deposit have not been deposited though the petitioners' amount of Rs.2,95,00,000/- was already with the NOIDA and the petitioners have not been able to utilise the same, as the NOIDA is not paying any interest on the petitioners' deposit with NOIDA. This representation of the petitioner dated 10th September 2004 has been filed before the authority and the authority vide its letter dated 15th December 2004 informed the petitioner that the penalty of interest can not be waived. The NOIDA further directed the petitioners to deposit the amount which is due along with penal interest and the penalty that will be imposed for the delay on the part of the petitioners in execution of the lease deed. Only thereafter the possession was supposed to be delivered to the petitioners otherwise action in accordance with law will be initiated. The decision of the Board referred to in the letter dated 15th December 2004 is also communicated to the petitioners when the authority has found that since the allotment of plot was to the petitioner on "as is where is basis" and, therefore, question of filling of the pond does not arise. This fact was informed to the petitioners but they have not initiated proceedings for taking possession. The order passed by the Board refers to a report issued by the NOIDA engineers that the project engineer has already informed the authority that the pond has already been filled in in the month of January 1997 itself and the petitioners were duly informed of the aforesaid fact vide letter dated 29th August 1998 but the petitioner instead of taking delivery of possession has filed writ petition before this Court.
The petitioners have submitted a report of Chartered Engineer, M/s Sahu Consultants and M/s Ayam in November 2001. They submitted a report that the pond has not yet been filled in. The NOIDA Board has directed the petitioners that till 31st July 2004 the petitioners were liable to pay a sum of Rs.4,77,85,096/- out of which 1,25,00,000/- has already been paid and after deducting the aforesaid amount the amount is Rs.3,52,85,096/- and a sum of Rs.46,61,459/- towards late payment and penal interest is further due. Thus the petitioners have challenged the aforesaid decision of NOIDA-Board"s communication dated 15th December 2004 after amending the present writ petition.
Learned Senior Counsel for the petitioners, Sri R. Venkat Ramani, has submitted that the petitioner has adhered to the schedule of payment as agreed upon and has performed all the formalities after depositing Rs.1,,25,00,000/- which they were supposed to do, namely, submitted the draft lease deed, clearance from Income Tax Department etc. as long back as in the month of January 1997 itself but neither the lease deed could be executed nor possession of the plot was delivered because of existence of pond due to heavy excavation of earth from the plot in question. The petitioners, therefore, made request that the pond may be filled in as early as possible so that the petitioners may start their project which is being delayed and the cost is escalating. Sri Ramani has further submitted that the NOIDA Board has rejected the petitioners' contention on the ground that the plot was allotted to the petitioners on the condition "as is where is basis" whereas from the correspondence referred to and admitted by the NOIDA it is apparent that the plot when it was allotted to the petitioners was even and plain plot which has been converted into a big pond because of the illegal excavation of earth from the plot between the period of allotment and before the delivery of possession. The correspondence, therefore, has been entered into between the petitioners on the one hand and the NOIDA on the other for filling up the pond which according to the decision of the NOIDA Board has not been filled in till February 1998, as would be clear from Annexure-16 to the writ petition which is a letter dated 7th February 1998 written by Sri Ashok Varma, Assistant Development Manager of NOIDA wherein he has informed that the work of filling the pond is going on and the petitioners shall be informed after the same is competed. From February 1998 till the date of passing of order by the NOIDA Board, the NOIDA has never informed the petitioners that the pond has been filled. Sri Ramani, therefore, submitted that the contention of the NOIDA that the condition "as is where is basis" relates to the condition at the time of allotment and delivery of possession of plot to the petitioners, the allotment in favour of petitioners was made in the year 1996. This is contrary to the stand taken by the NOIDA and the view taken by the NOIDA Board to the contrary suffers from the error of law and imposition of penalty, penal interest and demand of another Rs.1,25,00,000/- which could have been demanded only after delivery of possession is wholly illegal and the request of the petitioners for waiver of the penalty, the penal interest is rejected arbitrarily by the NOIDA.
Sri U.S. Awasthi, learned counsel appearing for the NOIDA authority has raised a preliminary objection regarding maintainability of the writ petition firstly on the ground that the petitioners have raised disputed question of facts and secondly the petitioners have sought the enforcement of contractual obligation, which should not be done by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
Learned counsel for the petitioners submitted that the argument advanced on behalf of NOIDA deserves to be rejected, firstly for the reason that NOIDA is a state within the meaning of Article 12 of the Constitution, which is not disputed by the NOIDA and consequently in view of the law laid down by the Apex Court in the case of ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others (2004) 3 Supreme Court Cases, 553; and DLF Universal Ltd. Vs. Appropriate Authority and another (2000) 5 Supreme Court Cases, 552; particularly in the case of Kumari Shrilekha Vidyarthi and others Vs. State of U.P. and others (1991) 1 Supreme Court Cases, 212, which has been dealt with by the Apex Court in the case of ABL International Ltd. (supra) and has dealt with as under :-
"Unlike the private parties the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. to this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions."
The Apex Court further held in paragraph 53, which runs as under :-
"53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in is contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of the State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs. 16 lakhs. On facts we found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when the Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner."
In view of the Apex Court decision in the case of ABL International Ltd (supra), we are of the opinion the the preliminary objection raised on behalf of NOIDA deserves to be rejected and is hereby rejected. Similar is the view taken by the Apex Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India (1979) 3 Supreme Court Cases, 489.
Coming to the facts of the present case and action taken by the NOIDA in passing the impugned order, learned counsel for the petitioners submitted that the terms and conditions of allotment of the plot, which is annexed as Annexure-'1' to the writ petition at running page 28 of the paper book lays down the conditions of the allotment. The emphasis laid down by counsel for the respondents at clause (3), which runs as under :-
"(3) The plot would be allotted on "as is where is basis" on lease for the period of 90 years to be reckoned from the DUE date intimated for execution of lease deed/date of possession, whichever is earlier."
Learned counsel for the petitioners submitted that clause (3), referred to above by learned counsel for the respondents is to be read along with clause 6 (a) of the aforesaid document. Clause 6 (a) and (b) runs as under :-
"6. (a) The allottee would be required to execute the necessary legal documents and take over the possession of the allotted plot within the period intimated by the lessor, and get the legal documents registered before taking over the possession of the plot. In case of default in taking over the possession of the plot or execution of documents, the allotment would be cancelled and the amount deposited as registration money would be forfeited, as per rules. However, in exceptional circumstances, the extension may be granted by the lessor/CEO of the (NOIDA) Authority on such charges, terms and conditions as applicable at the time of granting extension. The present charges for grant of extension are equivalent to the annual lease rent on proportionate basis, for the extended period.
(b) The stamp duty, registration charges and all legal expenses involved in the execution and registration of lease deed as stated above would be borne by the allottee..................................."
Learned counsel for the petitioners submitted that the power of forfeiture or cancellation can be exercised only when the possession has been delivered to the allottee in terms of the aforesaid document Annexure-'1' to the writ petition. In the present case since the stage of delivery of possession has not reached as NOIDA authority has not made the plots allotted to petitioners in the position so that the petitioners may take the delivery of the possession. Complaint made by the petitioners reminding the authorities with regard to the condition of the plot 'as is where is basis'. When the petitioners inspected the plot in question, the petitioners have submitted the lease agreement along with letter dated 3rd December, 1996 and other formalities, the petitioners would have been asked to perform their part including lease agreement. The demand by letter dated 23rd December, 1996 for a sum of Rs.75 lakhs towards the second instalment for the aforesaid plot, which the petitioners have deposited clearly demonstrate that they have performed what they are supposed to perform. The petitioners found that during the period when the land was allotted to them in March, 1996 and before registration of lease there are big ponds over the land in question, as the huge quantity of earth has been excavated from the plot in question and the same has been converted into a pond. The petitioners then entered into the correspondence with the respondents, which has been referred to earlier and wherein the NOIDA has accepted the petitioners' contention that there is a pond.
Learned counsel for the petitioners submitted that the action of the respondents-authorities clearly demonstrate that on the petitioners pointing out to the NOIDA that huge earth has been excavated which converted the plot in question into a pond. The authority was agreeable to the request of the petitioners that the land in question required to be developed by filling up the ponds so that the petitioners' project may go on. This fact has not been denied by the respondents when they replied to the representation filed by the petitioners. This fact has come in earlier writ petition no. 37654 of 1997 filed by the petitioners before this Court, which was disposed of vide order dated 19th November, 1997 by this Court with the direction to the NOIDA to dispose of the petitioners' representation. It is during the pendency of the representation, the NOIDA has written to the petitioners that the pond is being filled in and that the petitioners will be informed as soon as the work of filling pond is completed by the NOIDA. This further belies the stand of the NOIDA that the term "as is where is" relates to the date of allotment of the plot to the petitioners, on the other hand it substantiate the case of the petitioners that the earth was excavated from the plot in question only after the plot was allotted to the petitioners. Therefore even according to case set up by the NOIDA the term "as is where is" will have to see, the state of plot on the date of allotment which from the material on record is plain or even surfaced plot with any excavation of earth which has not made the plot into a pond. The aforesaid fact also clear from letter dated 2nd January, 1998 issued by the NOIDA, which has been annexed as Annexure-'14' to the writ petition and the concept whereof having not been denied by the NOIDA clearly demonstrate that the NOIDA has accepted the petitioners' contentions that the plot which is now offered to the petitioners is different than the plot, which was there on the date of the allotment of the land, because of the excavation of the earth which has converted the said plot into the shape of a pond. The petitioners' contention also found support from the letter dated 7th February, 1998 issued by Sri Ashok Verma, Assistant Manager (Development), which has been annexed as Annexure-'16' to the writ petition, wherein the petitioners are informed that the reference of the earlier letter of the Project Engineer (I) that in the land allotted to the petitioners, namely, plot no. A-22/62, the work of filling up the pond is going on and as soon as the same is completed, the petitioners shall be informed accordingly. It is the case of the petitioners that petitioners have never been informed that the plot, which has been allotted to them, has been filled in.
Learned counsel for petitioners submitted that the condition "as is where is", even it was then stood waived by NOIDA when NOIDA accepted that there is a big pond on the post in question and further when NOIDA agreed to fill in the pond on the representation made by the petitioners and NOIDA further agreed to inform the petitioners after the filling of the pond is completed which NOIDA has never done till the date of passing of the impugned resolution of the NOIDA Board and the order impugned in the writ petition. Learned counsel for the petitioners further submitted that a perusal of the impugned order, namely the resolution of the NOIDA Board, which has been annexed as Annexures-'22' to the amended writ petition, which has been communicated by letter dated 15th December, 2004 that during the pendency of the present writ petition before this Court, whereby the Board has taken a decision that it would not be possible for the authority to waive the penalty and interest etc. which has been imposed upon the petitioners. The Board in its resolution itself has referred to the order passed by CEO dated 11th December, 1997, wherein he has said that CEO has issued a direction for filling up the pond at the cost of the NOIDA and therefore by another letter dated 15th December, 1997 the petitioners were informed that the work of filling the pond is going on and that the petitioner shall be informed in due course as and when the work of filling the pond is completed.
From the correspondence entered into and referred to in the writ petition and the counter affidavit, learned counsel for the petitioners submitted that if the stand of the authority that the plot was allotted to the petitioners on "as is where is basis" refers to the state of plot at the time of the delivery of possession and that it petitioners cannot now say that the plot has been converted in the pond, therefore they refuse to take possession, cannot be accepted. At this point the situation of "as is where is basis" itself even assuming that it is so, then the plain and simple reply of the petitioners' correspondence would have been given by the authority that look here the plot was allotted to you on the condition "as is where is basis", therefore you have to take possession over the plot in question whether the earth has been excavated or not. The action of the authority in accepting the petitioners' request for filling up the pond clearly demonstrates that the condition "as is where is basis" is applicable to the condition at that point of time when the allotment letter was issued and on that day the plot did not have the shape of ponds, which has been accepted by the NOIDA as would be clear from the correspondence, referred to above that the NOIDA has agreed to fill up the pond. Learned counsel for the petitioners therefore submits that at no point of time, the petitioners have been informed that the pond filled in and the condition of the land which has been allotted to them are not different than which was allotted to them and therefore the petitioners should come and take possession thereof. There is no complaint on the part of NOIDA against the petitioners that petitioners have not completed the conditions, which were necessary to be completed by the petitioners before the delivery of possession.
Learned counsel for petitioners further submitted that the condition "as is where is", even it was then stood waived by NOIDA when accepted that there is a big pond on the post in question and further when NOIDA agreed to fill in the pond on the representation made by the petitioners and NOIDA agreed to inform the petitioners after the filling of the pond is completed which NOIDA has never done till the date of passing of the impugned resolution of the NOIDA Board and the order impugned in the writ petition.
Learned counsel for the petitioners further submits because of inaction on the part of the NOIDA and because of non fulfilment of obligation on the part of the NOIDA, the petitioners cannot be subjected to payment of penal interest etc. and on this ground that the petitioners did not deposit the instalment which fell due, according to the NOIDA therefore the allotment in favour of the petitioners deserves to be cancelled, cannot be accepted. The non deposit of the instalment which the petitioners have to deposit, apart from the money that they have already deposited at the time of allotment and before the registration of the plot before delivery of possession cannot be argued for imposing penalty and penal interest against the petitioners by the NOIDA. All the conditions have been complied with by the petitioners as per schedule for deposit of money. The NOIDA has not discharged its obligation with regard to the condition of plot in question in the shape and nature, which was there on the date when the same was allotted to the petitioners. In these circumstances, we are of the opinion that the impugned order and the resolution passed by the NOIDA Board in rejecting the petitioners' request for waiver of penalty, the penal interest and the order of cancellation of allotment is wholly arbitrary.
In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 30th August, 1999 and the resolution dated 15th December, 2004 (Annexures-'18' and '22' to the writ petition), passed by the authority are quashed. The respondents NOIDA authorities are directed to consider the petitioners' request for delivery of possession over the land in dispute after mutual agreement on a date without insisting upon for payment of penalty and/or penal interest and the NOIDA shall re-fix the payment schedule in terms of the original allotment letter after the possession of the plot allotted has been delivered to the petitioners. In the facts and circumstances the parties shall bear their costs.
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