HINDUSTAN FERTILIZER CORPORATION LTD. vs GHAZIABAD DEVELOPMENT AUTHORITY

ON the basis of the scheme prepared and published by the Ghaziabad Development Authority (GDA) for Commercial and Group Housing Scheme, 1988, Complainant, Hindustan Fertilizer Corporation Ltd. (A Government of India Undertaking) applied for allotment of the land of 1,000 sq. meters for construction of its office premises. The land was allotted to the Complainant in Kaushambhi area. The Complainant paid a sum of Rs.40 lakhs on 31.3.1989 as well as lease rent equivalent to 10% of the cost of the plot. Possession of the said land was handed over to the Complainant on 18.2.1992.

WITHOUT executing the lease deed, in an unjustified manner, the Opposite Party demanded non-construction levy and that too, as stated below. Hence, this Complainant is filed praying that : (a). direct the Opposite Party to allow execution and registration of lease deed in respect of office complex of the Complainant at Kaushambhi scheme without any levy charges; also direct the Opposite Party to allow the Complainant 3 years levy free time for completion of construction of office complex from the date of execution and registration of lease deed. (b). alternatively, direct the Opposite Party, GDA, to refund the sum of Rs.40 lakhs along with 10% of the cost of the plot as lease rent amount already deposited by the Complainant with interest at the rate of 24% p.a. from the date of deposit till the date of refund.

It is submitted that the Complainant wrote number of letters from 20.3.1992 to 5.7.1994 for supply of necessary information with regard to the execution of Lease Deed. The officer of the Complainant had also met the Joint Secretary of the GDA on 18.3.1994 for this purpose. However, there was no response from GDA. Finally, GDA vide its letter dated 28.7.1994 supplied the required information and also informed that period of construction has expired on 30.3.1992 and, therefore, directed the complainant to deposit Rs.12,56,774.40p. as non-construction levy charges for non-construction for the period from 1.4.1992 to 30.8.1994 prior to the registration of the lease. Thereafter, the GDA vide its letter dated 29.11.1994 intimated the Complainant that the time for construction has already expired on 31.3.1992 and hence, levy charges for non-construction of office complex for the period from 1.4.1992 to 30.12.1994 which comes to Rs.14,96,160/-. Immediately, the complainant wrote a letter dated 25.1.1995 contending that imposition of levy charges was illegal and requested the GDA to make necessary arrangements for execution and registration of the Lease Deed. But, there was no response. Again, between 22.6.1995 and 12.6.1996, reminders were sent by the complainant with regard to unjustified imposition of levy charges.

FINALLY , realizing its mistake, GDA vide its letter dated 23.7.1996 intimated the complainant allowing 3 years time from the date of possession, which, according to them, expired on 13.2.1995, and, therefore directed the complainant to deposit a sum of Rs.7,18,158/- as non-construction levy charges for the period from 14.2.1995 to 13.8.1996. In response to this letter, the Complainant, vide its letter dated 8.8.1996 requested the GDA to give levy free reasonable time for constructing the building, and the period of 3 years may be extended from 23.7.1996 so that the Complainant would take necessary action for construction of building after getting the lease deed executed. Thereafter, the Complainant sent reminders dated 24.9.1996, 26.12.1996 and 4.2.1997. But, there was no response by the GDA. Then, the GDA by its letter dated 5.3.1997 informed the complainant about the imposition of levy charges of Rs.10,37,337/- from 13.2.1995 to 31.3.1997 for getting the Lease Deed executed. Hence, the complainant has filed this complaint on 1.10.1997 with the aforesaid prayers.

IN this complaint, it has also been contended that even though the possession of the plot was delivered to the complainant in February 1992, without waiting for completion of 3 years, GDA has imposed levy of non-construction charges from 1.4.1992 to 30.8.1994. Counsel for the GDA submitted that the GDA allotted the plot in question to the complainant on 25.5.1989. The GDA by its letter dated 22.10.91 (Annexure-A to the written version) requested the Complainant to get the lease deed executed and registered. Further it was contended that as per clause 10.70 of the brochure the complainant/allottee was required to get the lease deed executed and registered within 6 months from the date of allotment and that clause 10.50 of the brochure stipulated that the lessee will have to complete the construction within three years of the delivery of the possession of the plot and the conditions so specified shall be the essence of the contract. It was also contended that the GDA was ready and willing and has duly informed the complainant to get the lease deed registered. The Board of GDA vide its decision dated 3.9.1990 (annexure B) imposed a levy of 12% to 18% p.a. for non construction of the buildings on commercial plots. The Complainant took possession of the commercial plots in question only on 18.2.1992 and had not got the lease deed executed nor took steps in regard to construction of building.

THE complainants deposited with the GDA Rs.72 Lacs towards part payment of two areas i.e. Rs.39, 88,736/- for 1000 sq. meters land in Kaushambhi and Rs.32,11,264/ for 2000 sq. meters plot at Vaishali. The GDA has contended that full cost of the plots was not deposited by the complainant. As the complainant has not started construction on the plot at Kaushambhi, non-construction levy charges further accrued on it.

IT is also contended that the Complainant has not paid the full price; that the GDA was ready and willing to hand over the possession from 1989 itself; the Complainant prior to 5.7.1994 never asked for necessary information in regard to registration of lease deed, and when they asked for the information, the GDA duly replied vide its letter dated 28.7.1994; and, that any person can know the necessary information in regard to registration of lease deed by making an enquiry in the office of the Sub-Registrar, and, it is impossible even to assume that the big corporation like the Complainant having expertise personnel, might not have the idea for registration, requisite amount of stamp paper, and about the requisite number of passport size photographs. It is further contended that the Complainant is intentionally inter-mixing registration of lease deed and imposition of levy. If the lease deed had been registered within the stipulated time, then the Complainant was not required to pay any levy for non-construction. It is also contended that the GDA has not received letter dated 12.12.1994, 25.1.1995, 26.5.1995, 20.7.1995, 16.10.1995, and 30.1.1996. From the facts narrated above, it is clear that possession of the flat was handed over to the Complainant only on 20.3.1992. For the reasons best known to the GDA without waiting for completion of 3 years from 20.3.1992, it imposed levy of non-construction charges from 1.4.1992 to 30.8.1994. This action of the GDA, on the face of it, is illegal and erroneous.

THEREAFTER , on the representation of the Complainant, levy charges were modified by letter dated 23.7.1996, that non-construction levy charges would be from 1.4.1992 to 14.2.1995. It is to be stated that during this period the Complainant, which is a Corporation, owned by the Union of India, wrote number of letters to the GDA requesting for execution of the lease deed. That was not done for months together. Hence, it was difficult for the Complainant to undertake any construction over the land. Thirdly, the GDA has not produced any rules and regulations for imposition of levy for non-construction of the building on commercial plots, except stating that the Board of GDA vide its decision dated 3.9.1990 has decided to impose non-construction levy between 12% to 18% p.a. in case of commercial plots. But, it has not been made clear from where the Board has got the authority and the basis or criteria for fixing the non-construction levy charges.

IT is to be stated that levy of non-construction charges from 1.4.1992 to 14.4.1995 is without application of mind because before construction on the plot, the Complainant was required to have lease deed registered in its favour. For the purpose, the Complainant has written various letters to the GDA, but there was no reply on behalf of the GDA. From the following letters, which are produced on record, it appears that the Complainant (a Government of India Undertaking) has written various letters requesting the officers of the GDA to supply the necessary information as well as to execute the lease deed. There was no response. If this is the behaviour of the officers of the GDA with the Government of India Undertaking, we have to presume what would be the fate of an ordinary man. At this stage, we would refer to the letters written by the Complainant to the GDA requesting for not to levy non-construction charges as well as for execution of the lease deed. Letters written by the Complainant to the GDA from 20.3.1992 to 14.2.1995 requesting for not to levy non-construction charges as well as execution of the lease deed: 1. The Complainant vide letter dated 20.3.1992 requested the Opposite Party to let it know the procedure in detail as to how to execute the lease deed, payment of registration fee, stamp duty and time limit, etc. It reads as under: (a). "Dear Sir, Your may kindly be aware that HFCL has taken over the possession of plot No.1 and 2 at Kaushambi measuring 997.44 mtrs. Under GDA for construction of our office building. Now, we intend to execute lease deed for the said plots and subsequently, construct office building on the said plots. To enable us to proceed further in the matter, we would request you to kindly let us know the detailed procedure of executing lease deed, registration fee, stamp duty and time limit etc. An early action in this regard is solicited". (b). Thereafter, vide letter dated 28.5.1992, the Complainant wrote a letter to the GDA to the same effect, as requested vide its letter dated 20.3.1992, reproduced above. (c). Again, vide letter dated 20.8.1992, requested the GDA to provide the necessary information on top priority basis for execution of sale deed, etc. Subsequently repeated letters on 26.11.1992; 11.6.1993; 13.7.1993; 27.10.1993; 30.11.1993; 23.12.1993 are written to the same effect. (d). Thereafter, letter dated 5.7.1994 was also addressed to the GDA for the same purpose. In this letter, it is also stated as under: """"" In this regard our representative had met your Jt. Secretary, Shri Shambu Nath and discussed the matter on 18.3.1994 in which he has assured that the imposition of levy is being considered and necessary information will be given soon. We tried many times to talk to your Jt. Secretary, Shri Nath over the phone on a number of times in this regard but he could not be available and we talked to Shri Tyagi and Shri Suresh in Commercial Department and we were told that the details regarding Lease Deed will be sent soon. But it is regretted that no information has been sent to us. You are hence requested to arrange to send the aforesaid details so that lease deed could be executed immediately".

Thereafter, vide letter dated 28.7.1994, the GDA has informed the Complainant that the lease deed would be executed if the Complainant deposits a sum of Rs.12,56,774.40 towards non-construction levy for the period 1.4.1992 to 30.8.1994. In the same letter, it is made clear that further action could be possible only after depositing the levied amount. Thereafter, vide letter dated 29.11.1994, the GDA informed the Complainant to the following effect: "With reference to your letter dated 5.10.994 we have to inform that it is not possible to consider your request. According to allotment letter the period of construction of building of the aforesaid plot has expired on 31.3.1992. So, you are requested to deposit a sum of Rs.14,96,160/- in this office as levy for the period from 1.4.1992 to 31.12.1994." In response to the above stated letter of the GDA, the Complainant, vide its letter dated 25.1.1995, informed the GDA, inter alia, as under: """. according to para 10.50 of the brochure the period of construction of building starts from the date of the possession of the plot. Since we received the possession of the plot on 18.2.1992 only, so the period of the construction of the building will end on 17.2.1995 only."

In this regard we will also like to inform that there is no primary essential facilities available for the construction of building in the Kaushambhi Commercial Complex. So we could not construct the building and one or two builders who started the construction have left them unfinished in the absence of these facilities. So we have to say that we will not be responsible for the constructions of the building till the period the aforesaid facilities are not made available. We once again, therefore, request you to arrange the execution of lease deed of the plot at the earliest, so that we may take further necessary action for the construction of the building".

IN the letter dated 12.12.1994, the Complainant stated as under: "Further to our letter No. JFC/CO/SECTT/GDA/93/114 dated 5.10.1994 (copy enclosed for ready reference) which is self explanatory, and the discussions our representative had with you in your office on 5.10.1994, 24.10.1994 and 9.11.1994 this is to mention that we have not received any intimation from your end. You are therefore, requested to kindly make necessary arrangements so that the lease deed is executed and registration is done in the office of the concerned Registrar at the earliest. A line in confirmation will be appreciated.