National Highways Authority Of India vs SGS Construction And Developers Pvt. Ltd. And Ors

The appellant(NHAI) has challenged the order dated 20.05.2019 passed by the tribunal below(DRT-II, Delhi) allowing two miscellaneous applications moved by respondent no.1 herein in a disposed of appeal under Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act,1993'RDDBFI Act' in short), being Misc.Application No.60/2019 Delhi arising out of RC Case No.39/2011 in which proceedings were initiated for recovery of public money decreed in favour of Housing & Urban Development Corporation Ltd.( HUDCO) and against its borrower, an educational Trust by the name of Maharaji Educational Trust(hereinafter to be referred as 'the Trust'), in Original Application(O.A.) No. 160/2002(which subsequently came to be numbered as TA NO. 02/2008) under Section 19 of RDDBF Act for a sum of Rs.148 crores odd with interest etc. vide final order dated 03.06.2008. Appeal being 120/2008 against that order of DRT filed by the borrower Trust was rejected by this appellate Tribunal vide order dated 06.10.2010.

The loan granted to the Trust was secured by way of mortgage of some land in the State of Uttar Pradesh(hereinafter to be referred as 'the land in question'). In execution of the R.C. The Recovery Officer auctioned the land in question and the same was purchased by a developer by the name of M/s SGS Construction & Developers Pvt. Ltd.('SGS' in short) , respondent no.1 herein. That sale had taken place under the directions of the Hon'ble Supreme Court where the litigation had reached during the execution proceedings. The facts leading to the filing of case before the Apex Court are not being noticed here in detail as the same are not necessary to be noticed for deciding the present appeal. Only few relevant facts are, however, being noticed.

After purchasing the land in question, which appears to have been purchased by the Trust for building a residential complex for the weaker sections of the society under some Scheme 'Pradhan Mantri Awas Yojna(PMAY)' floated by the Uttar Pradesh Government, Necessary permissions were sought by the said SGS, developer/auction purchaser from different Government departments including the present appellant NHAI. However, the SGS faced difficulties in getting necessary sanctions/approvals. Therefore, it approached the Hon'ble Supreme Court by moving an application being I.A. No. 526/2019 in the disposed of litigation(being Civil Appeal No. 6466/2017) during which the land in question had come to be sold by the Recovery Officer of DRT and purchased by SGS, for appointment of DRT as the nodal agency to deal with different aspects including approvals, sanctions etc. by the concerned Government departments.

However the Hon'ble Supreme Court did not accede to that prayer of SGS and vide order dated 11.03.2019 permitted SGS to approach the DRT observing that the land was sold by DRT under its directions. The order dated 11.03.2019 of the Hon'ble Supreme Court reads as under:-

"MA 526/2019 IN MA 1483/2018 IN CA NO.6466/2017

The applicant(s) has filed this application with the following prayers:

"(i) Order the appointment of the DRT-II, as the nodel agency under this Hon'ble Court's supervision in respect of the applicant's land admeasuring 63.45 acres concerning all aspects regarding measurement/re- measurement of the land, all approvals etc. relating to Pradhan Matri Awas Yojana, Ghaziabad Development Authority, issue of NOC from U.P. Awas Evam Vikas Parisahd etc., and to ensure that the applicant is able to use the land as per the land use mentioned in the Master Plan of Greater Ghaziabad 2021;

(ii) Order the appointment of two independent government approved Total Station Survey agencies by the applicant under the supervision of the DRT-II, within a time frame of one week and the agencies so appointed by the applicant should submit their reports within a period of one week from the date of appointment of the agencies by the applicant to DRT-II and before this Hon'ble Court;

(iii) Order that all the earlier measurement reports/findings done by the revenue authorities by hand/manually be null and void and be of no consequence whatsoever;

(iv) Implead the State of U.P. through Chief Secretary, Government of Uttar Pradesh, Lal Bahadur Shastri Bhavan, U.P. Secretariat, Lucknow - 226001, and Commissioner U.P. Awas Evam Vikas Parishad, 2014 Mahatma Gandhi Road, Lucknow, Uttar Pradesh Pin: 226001, as necessary and proper parties being respondent nos. 4 and 5 respectively"

As the sale deed has been executed under the orders of this Court by DRT- II, the remedy is available to approach the DRT-II for doing the needful. Let DRT-II look into the matter.

In case the applicant(s) approaches the DRT-II, it shall consider the case.

The application stands disposed of accordingly"(highlighting is by me)

Thereafter, SGS came to DRT-II, Delhi and upon its request the DRT again took on its board the disposed of O.A. of the bank. In that matter one miscellaneous application, being MA.No. 60/2019 was filed. That application was moved in the disposed of O.A.(T.A.No. 01.2008) of the bank in which recovery certificate was issued against the Trust and which O.A. had earlier been filed by the Bank invoking Section 19 of the RDDBFI Act,1993. The prayers made in M.A.No.60/2019 were as under:-

"In view of the foregoing premise, it is most respectfully prayed that this Hon'ble Tribunal may be pleased to:

i) Implead the State of U.P. through Chief Secretary, Government of Uttar Pradesh, Lal Bahadur Shastri Bhavan, U.P. Secretariat, Lucnow - 226001, and Commissioner U.P. Awas Evam Vikas Parishad, 2014 Mahatma Gandhi Road, Lucknow, Uttar Pradesh Pin: 226001, as necessary and proper parties.

ii) Direct the Commissioner, U.P. Awas Evem Vikas Parishad to issue the NOC within a period of one week to the Applicant without development/ betterment charge as applicant's project under PMAY policy;

iii) Direct the Chief Secretary, Government of Uttar Pradesh, Lal Bahadur Shastri Bhavan, U.P. Secretariat, Lucknow - 226001, to direct all the relevant departments to issue the NOC's viz. Tehsildar, Commissioner Nagar Nigam, EE Electricity Board, Pollution Control Board, Fire Department etc. Ghaziabad and Vice Chairman, Ghaziabad Development Authority to approve the site plan/ drawings etc. relating to Pradhan Matri Awas Yojana, to the Applicant within a period of two weeks;

iv) Direct the Vice Chairman, Ghaziabad Development Authority, Ghaziabad to sanction/approve all plans of the Applicant's Hotel project in accordance with the Tourism Policy of the Directorate of Tourism, Uttar Pradesh and the charges shall be charged as per the Tourism Policy of the Directorate of Tourism, Uttar Pradesh;

v) Order the appointment of a independent government approved Total Station Survey agency by the applicant under the supervision of the DRT-II, with in a time frame of one week and the agency so appointed by the applicant should submit their reports within a period of one week from the date of appointment of the agency by the applicant to this Hon'ble Tribunal;

vi) Order that all the earlier measurement reports/findings done by the revenue authorities by hand/manually be null and void and be of no consequence whatsoever;

vii) Pass such other order(s), as this Hon'ble Tribunal may deem just and appropriate in the facts and circumstances of the case."

When M.A.No.60/2019 was still pending SGS moved two more applications before the DRT, describing the same to have been filed in M.A.No. 60/2019 in T.A.No. 01/2008) for seeking certain further directions against different Government Authorities including the NHAI. Appellant herein. One application was registered as M.A.No. 811/2019 and the second one was registered as M.A.No. 843/2019. The present appeal arises of a common order passed by the DRT on 20.05.2019 allowing both these appplications of SGS. He appellant is aggrieved by the directions given by DRT while allowing M.A. No. 843/2019 with which we are concerned in this appeal.

Prayers made in I.A. No.843 of 2019 were as under:-

"In view of the foregoing premise, it is most respectfully prayed that this Hon'ble Tribunal may be pleased to:

i) Implead the National Highways Authority of India (NHAI), House No.518, Niti Khand-I, Indirapuram, Ghaziabad - 201014 (U.P.), as necessary and proper party;

ii) Direct the NHAI not to cancel/revoke the provisional NOC granted to the Applicant;

iii) Direct the Respondent No.2, Commissioner, U.P. Awas Evem Vikas Parishad to issue the NOC in favour of the Applicant within a period of one week to the applicant so that NHAI grants the permanent NOC in favour of the Applicant;

iv) Direct the Respondent No.2, Commissioner, U.P. Awas Evem Vikas Parishad to co-ordinate with the Respondent No.4, the Tehsildar with respect to the mutation of Khasra numbers 13 of village Akbarpur Behrampur admeasuring 0.1390 hectres and Khasra number 165 M of Village Mirzapur admeasuring 0.003 Hectares in favour of the Applicant within a period of one week;

v) grant the aforesaid relief(s) ex-parte;

vi) Pass such other order(s), as this Hon'be Tribunal may deem just and appropriate in the facts and circumstances of the case."(highlighting is by me)

The learned DRT allowed both the I.As of SGS and granted it the reliefs sought for therein vide common order dated 20.05.2019. The appellant has felt seriously aggrieved by that order of DRT and has therefore, approached, this DRAT by filing the present appeal.

At this stage, the impugned order of DRT is being re-produced below:-

"1. By this consolidated order, abovementioned two applications bearing I.A. Nos. 811 & 843 of 2019 filed by SGS Construction and Developers Pvt. Ltd.- one for appointment of a Total Station Survey Agency by the applicant under the supervision of the Tehsildar, respondent no.4 & for appropriate directions and the other for impleading National Highways Authority of India (NHAI) as necessary party and for appropriate directions regarding mutation etc. are being disposed of.

In brief, the case of the applicant SGS Construction and Developers Pvt. Ltd. for the purpose of filing of the abovementioned two applications is as under:

I.A. No. 811 of 2019

The applicant purchased the unencumbered clear title freehold land admeasuring 63.45 acres through a registered sale deed executed through the learned Recovery Officer of this Tribunal after depositing the entire amount in favour of HUDCO on 30th May, 2018 under the orders of the Hon'ble Supreme Court dated 9th February, 2018 and 18th May, 2018 and the peaceful vacant possession of the said land was handed over to the applicant on 30th May, 2018 and inspite of that futile attempts were being made by certain land grabbers and being fed up with such attempts, the applicant had filed IA in the Hon'ble Supreme Court and the same was disposed of on 5th October, 2018 with a specific order that ''Obviously, as clear title has been passed to the purchasers, no claim with respect to the land in question shall be entertained elsewhere.'' It is further submitted that in spite of such clear order of the Hon'ble Apex Court, the then Sub Divisional Magistrate and the other revenue officials kept on entertaining frivolous complaints of the land grabbers and visiting the site for doing measurement of the land. The applicant also got carried out the measurement of land through Total Station Survey by professionals and through approved Surveyors of the country on December 20, 2018 and they also certified and confirmed that the applicant's land in possession within the tin sheets is correct as per the registered sale deed. In spite of the above fact, the applicant is facing harassment in the hands of the authorities and unwarranted obstacles being created by the Government Authorities are causing insurmountable legal injury and commercial losses to the applicant. Which has already invested a huge amount in the projects and is servicing interest on the financial assistance availed by it for implementation of the projects. The entire project of the applicant has been stuck without much progress and it shall only be in a position to move ahead once the things are settled for all, especially the measurement of the land. Accordingly a prayer has been made to appoint a Total Station Survey Agency by the applicant under the supervision of respondent no. 4, the Tehsildar, within a time frame of three days and the agency so appointed by the applicant should submit their reports within a period of another three days from the date of appointment to this Tribunal and that all the measurement reports/findings done by the revenue authorities by hand/ manually be all null and void and be of no consequence whatsoever after the submission of Total Station Survey Agency.

I.A. No. 843 of 2019

By this application, SGS Construction and Developers Pvt. Ltd. has prayed for impleading NHAI being a necessary and proper party and to direct it not to cancel / revoke the provisional NOC granted to it and also to direct respondent no.2 Commissioner, U.P. Awas Evam Vikas Parishad to issue NOC in favour of the applicant within a period of one week so that NHAI grants permanent NOC to the applicant and also to cooperate with respondent no.4 Tehsildar with respect to mutation of Khasra numbers 13 of village Akbarpur Behrampur admeasuring 0.1390 hectares and Khasra number 165 M of village Mirzapur admeasuring 0.003 Hectares in favour of the applicant within a period of one week. It is submitted that earlier the applicant was granted a provisional NOC by NHAi vide its letter dated 10th January, 2019 regarding two entries and exits of 12 meters each for access to the applicant's land admeasuring 63.45 acres on which the applicant is developing SGS City-I and SGS City-II under Pradhan Mantri Awas Yojna Policy and thereafter vide letter dated 18th April, 2019 the NHAi granted permission NOC. However, the NHAI requested for clarifications from the applicant based on letter issued by respondent no.2 dated 16th April, 2019 to the NHAI in which they referred to a meeting held on 9th April, 2019 at PIU, Ghaziabad, U.P. It is submitted that the aforesaid letter issued by respondent no. 2 is ex-facie illegal, honest, bad in law and is liable to be set aside being incorrect and false and as a counter-blast to the cause of the applicant. It is further submitted that front part of the applicant's land which is facing NH-24 comes under the green belt as per the Master Plan 2021 of Ghaziabad and is 100 % owned and peacefully possessed by SGS only and, as such, no one else including respondent no. 2 can claim any right on it. The applicant further submits that respondent no.3 Ghaziabad Development Authority, vide its letter dated 15th February, 2019 and 16th February, 2019 has approved the bids given by it vide two applications for development of two cities as City-I and City-II under the affordable Housing in Partnership Scheme (2018-2021) under Pradhan Mantri Awas Yojna and as such the applicant is now under obligation to develop, construct and handover around 3000 EWS houses under the said Yojna within a span of two years from the date of approval of the plans by respondent no.3 for distributing the same to economically weaker people. The applicant further submits that on receipt of its letter dated April 22, 2019 NHAI held a meeting with its representatives and issued a letter to the respondent no.2 asking it to submit comments within 7 days with respect to its ownership over the land in between NH-24 and applicant's land in between NH-24 and applicant's land regarding 12 mere service road, as also that the project of the applicant is being approved by Ghaziabad Development Authority under the said Yojna. Having let with no other alternative as the respondents were not mutating the land admeasuring 63.45 acres purchased on 30th May, 2018 in favour of the applicant, the applicant had moved applications before the Hon'ble Supreme Court and the Hon'ble Supreme Court passed the following order on 4th February, 2019.

''The order passed by this Court is clear. The DRT has executed the sale deed, pursuant to the order passed by this Court, demarcation has been done and the possession also been handed over. As such, there should not be any hitch in making the mutation as the petitioner has purchased the land in the proceedings before the DRT. Let the mutation be made within four weeks from today.

We also make it clear that there should not be any further proceedings in derogation to the order passed by this Court and the matters which already have attained finality.''

By writing a letter dated 8th February, 2019 the applicant brought the above order of the Hon'ble Supreme Court to the notice/knowledge of the Sub District Magistrate and apprised him that the mutation must be done within four weeks from the date of order but the concerned SDM did not comply with the said order and left with no other option, the applicant filed a Contempt Petition No. 366 of 2019 in O.A. No. 6466 of 2017 wherein the following order was passed on 11th March, 2019:

''Let the mutation as directed by this Court, be carried out positively within two weeks, failing which the concerned SDM and Tehsildar shall be held responsible. Non-compliance of this Court's order will be viewed seriously.''

It is further submitted that respondent no.4, the Tehsildar, informed the applicant that there are certain formalities which are required to be completed by respondent no.2 in respect of the two Khasra numbers in question and as such the mutation is pending. According to the applicant, the government authorities are apparently functioning in unholy concert to scuttle the projects of the applicant and accordingly, a prayer has been made for impleading NHAI being necessary and proper party and to direct it not to cancel/revoke the provisional NOC granted to it and also to direct respondent no.2 Commissioner, U.P. Awas Evam Vikas Parishad to issue NOC in favour of the applicant within a period of one week so that NHAI grants permission NOC to the applicant and also to cooperate with respondent no.4, Tehsildar with respect to mutation of khasra numbers 13 of Village Akbarpur Behrampur admeasuring 0.1390 hectares and Khasra number 165 M of village Mirzapur admeasuring 0.003. hectares in favour of the applicant within a period of one week.

Heard both sides.

Now the points for consideration are:-

(i) Whether the Misc. applicant is entitled for taking on record the Total Station Survey conducted by Explore Engineering Consultants Pvt. Ltd. as prayed for.

(ii) Whether the respondent no.2 i.e. Commissioner U.P. Awas Evam Vikas Parishad require to issue any NOC in favour of the applicant.

(iii) Whether the Misc. applicant is entitled for relief as prayed for in both the IAs.

By order dated 30.04.2019, in view of the consensus arrived at between the parties to the effect that measurement of the land is necessary. This Tribunal appointed Explore Engineering Consultants Pvt. Ltd. as the Total Station Survey Agency to conduct the survey of the land. The Survey agency was directed to conduct the survey in the presence and supervision of Tehsildar/ Respondent no.4 and submit its report directly to the Tribunal within one week.

In compliance of order dated 30.04.2019, the survey agency has filed its report in a sealed cover. The report of the survey agency has been perused. The survey has been conducted in the presence and supervision of the Tehsildar. Since the Tehsildar has access to the revenue records pertaining to the land falling within his jurisdiction the veracity and correctness of the Total Station Survey Report is unimpeachable. It would be apposite that the Hon'ble Supreme Court by orders dated 04.02.2019 passed in CA No. 6466 of 2017 directed that the property in question which the applicant had purchased under the orders of the Hon'ble Supreme Court be mutated in its favour as the land had already been demarcated, pursuant to which, the physical possession of the land was delivered by the Recovery Officer, DRT -II to the purchaser-applicant -SGS. The Hon'ble Supreme Court also directed that there would be any further proceedings in derogation to the orders passed by it and the matters which already has attained finality.

Thereafter by order dated 11.03.2019 passed by the Hon'ble Supreme Court in Contempt Petition (C) No. 366 of 2019, the Hon'ble Supreme Court directed the Sub-Divisional Magistrate and Tehsildar to carry out the mutation of the land positively within two weeks failing which they shall be held responsible and also cautioning them that non-compliance of the orders shall be viewed seriously.

It is shocking that despite the aforementioned orders by the Hon'ble Apex Court, the Tehsildar did not proceed to mutate the land in question in favour of the applicant. The Tehsildar who appeared in person in these proceedings made a statement on 10.05.2019 that he has completed the mutation in respect of all the Khasras in which the land in question falls except Khasra No. 112. The Tehsildar, however, did not explain as to why Khasra No.112 was not mutated in favour of the applicant.

On appreciating the aforementioned conspectus of judicial proceedings before the Hon'ble Apex Court, there was hardly and scope for the respondents to raise any dispute on demarcation of the land which would necessitate conducting a Total Station Survey. But since the respondents raised objections despite the mandatory and binding effect of the aforementioned directions of the Hon'ble Apex Court, the applicant states that it was constrained to file I.A No. 811/2019

Be that as it may, since the Total Station Survey would have only corroborated the findings already recorded in the orders dated 04.02.2019 and 11.03.2019, and the fact that the Total Station Survey was to be conducted under the supervision of and in presence of the Tehsildar, leaving no iota of doubt on the correctness thereof, I allow I.A No. 81/2019 and hold that the Total Station Survey Report submitted to this Tribunal in compliance of order dated 30.04.2019 is correct and shall binding on all the parties/state authorities. Consequently I declare that all prior reports and findings superseded in all respects by the Total Station Survey Agency Report submitted by Explore Engineering Consultant Pvt. Ltd.

The applicant-SGS has raised a grievance that since respondent no. 2 is claiming ownership over strip of land having a width of 12 meters abutting the National Highway, the NHAI has issued a show cause notice dated 25.04.2019 calling upon the applicant to submit NOCs from U.P. Housing Board and GDA within 7 days failing which the NOC dated 10.01.2019 shall stand cancelled alleged ownership of the said portion of the land of a width of 12 metres, is wholly unjustified, arbitrary and illegal and thus the insistence of seeking issuance of the said NOC(s) is also equally unjustified, arbitrary and illegal.

By order dated 10.04.2019, U.P Avas Evam Vikas Parishad was ordered to be impleaded as respondent. The respondent no. 2. - U.P Avas Evam Vikas Parishad has filed reply to Misc. Application No. 60/2019 in which it has raised a preliminary objection that this Tribunal has become functus officio and has no jurisdiction to deal with the matter. It has been further stated that the land in question is governed by the provisions of Avas Evam Vikas Parishad Adhiniyam, 1965. The respondent no. 2 has also contended that the applicant would be liable to pay betterment fee under the provision of the aforesaid act.

The respondent no. 2 has filed compliance affidavit in terms of order dated 30.04.2019. In the compliance affidavit, respondent no. 2 has contended that the applicant is not the owner of 12 meter wide stretch next to the National Highway 24. According to respondent no. 2, the said portion of land was never purchased by the applicant and is owned by respondent no. 2. The respondent no. 2 placed reliance on the following documents.

(i) Government Notification dated 05.07.2006

(ii) Exchange deed dated 04.05.2007

(III) Sale deed dated 30.05.2018 executed by Recovery officer in favour of the applicant.

(iv) Possession letter

(v) Revenue records/mutation of land in favour of respondent no

.2, applicant and NHAI alongwith chart showing approximate area of land owned by each of the three entities.

(vi) Revenue records/mutation of land in favour of respondent no. 2 qua Khasra No. 112 alongwith chart.

(vii) Government notice dated 10.11.1998

(viii) Government notice dated 24.06.2002 (Ix) Sazra Paln

(x) Layout plan

Even though this Tribunal need not go into the aforesaid allegations, having since been finally decided by the Hon'ble Supreme Court vide orders dated 04.02.2019 and 11.03.2019, I have perused the same. The respondent no. 2 has filed English Version of the documents in Hindi which have been perused. The Revenue Record relied upon by the respondent no. 2 is uncertified, which fact is mentioned on pages 219 to 245. An uncertified copy is not admissible in evidence. Further, the Revenue Record is apparently the printout obtained from a software powered by National Informatics Centre, U.P but is not accompanies by certificates contemplated by Section 65 B of The Evidence Act. The affidavit of respondent no. 2 does not indicate that the data which was fed in the software is premised on contemporary surveys using scientific methods. The Tehsildar who is arrayed as respondent no. 4 has not supported the revenue record either by way of an affidavit or through oral submissions. The respondent no.2 has placed by a competent revenue official and would otherwise susceptible to doubts. I have also perused the layout plan that has been filed alongwith the compliance affidavit.

Counsel for the appellant has also drawn my attention to the Ghaziabad Master Plan 2021, a perusal of which shows that the areas where respondent no. 2 claims a 12 meter wide stretch, is clearly wrong since the Master Plan does not show any purported road/stretch and the said area is shown as Green Belt in front of the NH-24.

The applicant has also filed re-joinder affidavit on 14.05.2019 in response to the compliance affidavit of respondent no. 2. The applicant has also filed copies of counter affidavit dated 13.01.2014 and rejoinder affidavit dated 22.02.2015 by the respondent no. 2 to the present proceedings i.e. U.P Avas Evam Vikas Parishad were filed by it before the Hon'ble Supreme Court, the relevant portion of which are reproduced below.

Counter Affidavit dated 13.01.2014 filed SLP (C) No. 34115/2013

"7........ it is humbly submitted that thereafter, the aforesaid consolidated 63.45 acre of vacant land which is the subject matter of dispute between the petitioner has never been acquired by the answering respondent nor it has any claim over the same and as per the aforesaid Exchange Deed, the Maharaji Educational Trust i.e. Petitioner had become the absolute owner of the said property and the answering respondent neither had any right not any control with regard to the said land. Hence, the said land since being nor governed/regulated or under dominance of the Parishad was therefore outside the purview of the U.P Avas Evam Vikas Parishad Adhiniyam, 1965 and not governed by the provision of the said Act. Consequently, the answering respondent neither has any right nor any duty to demarcate the said land for any purpose and if any dispute has arisen with regard to the said land, the it is a private dispute between the parties and any demarcation can be done either by the parties themselves or by the revenue authorities of the government and the direction of the Hon'ble High Court to the answering respondent to demarcate the said land is not sustainable in law".

"16....That it is most respectfully submitted that the answering respondent field its counter affidavit dated 09.04.2012 clarifying therein that the Parishad had no role in the dispute between the parties. Neither the land belongs to the Parishad nor has it been allotted by it. The Parishad does not have any superintendence or dominance over the said land in dispute and has no authority to adjudicate or demarcate the portion in the said land."

Re-joinder affidavit dated 22.02.2015 filed in SLP (C) No. 36569/2013

"7. .....Hence, pursuant to the execution of the aforesaid exchange deed, the Parishad neither has any claim not any right over the 63.45 acres of vacant land which is the subject matter of dispute between the respondents......if any dispute has arisen between the parties with regard to the said land, the it is a private dispute between the and any demarcation can be done either by the parties themselves or by the revenue authorities of the state government."

"11. ..... The present Special Leave Petition has been filed only because the Hon'ble High Court, while passing the aforesaid impugned order, completely failed to consider that the land in dispute for which direction to demarcate has been issued to the petitioner Parishad has no claim over the said land and is totally outside the purview of the U.P Avas Evam Vikas Parishad Adhiniyam, 1965 and therefore, not covered by the provisions of the said Act."

In view of the aforesaid unqualified, unequivocal and positive judicial admissions made by respondent no. 2 before the Hon'ble Apex Court to the effect that it has no claim over the land in question and that the U.P Avas Evam Vikas Parishad Adhiniyam, 1965 has no applicability to it. Therefore no betterment charge/fee can be claimed by the respondent no. 2 from the applicant under the said act, it can be concluded that the objections/disputes which the respondent no. 2 is now raising before this Tribunal are utterly frivolous, false, mischievous and dishonest. The respondent no.2 can be permitted to approbate and reprobate. After having taken the aforesaid conscious stand before the Hon'ble Apex Court, the respondent no.3 was and is stopped in law from taking any inconsistent stand as is now sought to be urged by it before this Tribunal. Respondent no. 2 is clearly guilty of taking prevarication stands before different courts. It is settled law that if party takes prevarication and inconsistent stands before different courts. It is guilty of abuse of process of law.

I must also deal with the jurisdictional objection raised by respondent no. 2. I have carefully perused the order dated 11.03.2019 passed by the Hon'ble Supreme Court in O.A No. 6466/2017. The mandate of the order leaves no doubt in my mind that this Tribunal is competent to decided the issued which have arisen between the parties. The respondent no. 2 cannot be permitted to suggest that this Tribunal shall not comply with the orders passed by the Hon'ble Supreme Court. Such objections/suggestion, besides being mala fide, would also be contemptuous. It is open for the respondent no.2 and any other party to approach the Hon'ble Supreme Court for any clarification if advised.

There is yet another aspect of the matter which merits consideration. The land in question was put to auction by the Recovery Officer. The sale proclamations were published. The auctions were given wide publicity. It does not stand true to logic that the respondents, including the respondent no. 2, would not have bothered to file objections or appropriate proceedings if they had any valid cause and claim in relation to the land in question. No such objections were ever preferred by any of the respondents. The objections which are now being sought to be raised are clearly and afterthought.

This Tribunal, therefore, comes to the conclusion that the objections and claims raised by the respondents including respondent no.2 in respect of the land in question are unsustainable and are therefore, rejected and dismissed.

Clearly respondent no. 2 has no right, title or any interest in the subject land and thus no NOC would be required to be obtained from respondent no. 2 nor can any authority or body insist that any NoC be obtained from respondent no. 2 by the applicant.

In view of the above I.A No. 843/2019 deserved to be allowed and this Tribunal therefore makes absolute the interim order dated 30.04.2019 (corrected by order dated 02.05.2019). The NHAI shall issue permanent NoC within a period of 7 days.

In the morning, learned counsel for the applicant mentioned the letter and raised a grievance that two days ago persons claiming to be contractors of NHAI had commenced raising a wall at the points of ingress and egress of the land of the applicant which is abutting the NH24 down (service road), contrary to the provisional NoC and in doing so will adversely affect the ingress and egress of the applicant's land NHAI, its servants, agents, employees and contractors shall ensure that no such obstruction in the form of a wall or otherwise is made that would in any manner effect the ingress and egress to the land of the appellant.

As a corollary to the aforesaid findings, the Tehsildar and the Revenue authorities are directed to mutate Khasra No. 112 in favour of the applicant.

The respondent no. 1 & 3 to 9 are directed to issue the requisite NoCs including any NoCs in favour of the applicant immediately to the GDA to enable the applicant to complete the project awarded to it under the Pradhan Mantri Avas Yojana which predicates a strict timeline of 24 months for completion of the EWS Houses.

There also appears to be no impediment in directing Ghaziabad Authority to process the applications moved by the applicant for approval and sanction of plans. GDA is directed to do the needful towards sanction of plans within four weeks." ( highlighting is by me)

From the foregoing narration and oral submissions made from both sides by their respective counsels the position which emerges is that after purchasing a huge piece of land in Court auction for over three hundred cores of rupees 'SGS' which was intending to construct a huge residential complex on the land in question which was almost touching the highway. It wanted to have entry and exit points from the national highway itself. For that it required necessary permissions from different Government authorities including the appellant(NHAI). Though NHAI had sometime in January.2019 granted provisional NOC to SGS when it was approached for NOC in respect of entry and exit points for the Project of SGS from the national highway but then refused to give permanent NOC which was required by UP Awas Evam Vikas Parishad, which was claiming some betterment charges/development etc. from SGS for giving NOC to enable SGS to get plans sanctioned from Ghaziabad Development Auhtority, to be obtained from NHAI by SGS. NHAI had in fact sought to revoke even the provisional NOC alleging concealment of some material information/facts while applying for NOC. Feeling perturbed by the hurdles being created by these Government authorities in the implementation of the Project to be undertaken by SGS under PMAY, SGS decided to approach the Hon'ble Supreme Court in the disposed of civil appeal in which orders were earlier passed for sale of land in question by the Hon'ble Supreme Court. As noticed SGS moved I.A.No. 526/2019 seeking certain directions which have already been re-produced. As also noticed already Ho'ble Supreme Court had refused to intervene and instead observed that SGS could approach DRT which had sold the land in question under the directions of the Supreme Court and it was also observed that if DRT would be approached it will look into the grievances of SGS. Thereafter SGS had come to DRT and moved an application MA. No. 60/2019 in which same reliefs were sought for as had been claimed from the Hon'ble Supreme Court in its application no. 526 filed there. It appears that since SGS wanted permanent NOC from NHAI it moved a separate application in its MA. No.60/2019, being MA No. 843/2019, seeking impleadment of NHAI also in the proceedings and a direction was also sought against NHAI to grant permanent NOC to SGS in respect of entry and exit points which it wanted to have from the highway itself in respect of the residential complex it was going to construct under PMAY. The, DRT, however did not pass any order for the impleadment of NHAI and straightaway gave certain mandatory directions to NHAI including to give permanent NOC to SGS.

Certain directions were also given to UP Awas Evam Vikas Parishad but in the present appeal we are not concerned with those directions. However, it may be mentioned that against those directions UP Avas Evam Vikas Parishad it had approached the Hon'ble Supreme Court in the already disposed of appeal no.6466/2017 by moving I.A.No.99320/2019 but the Hon'ble Supreme Court did not entertain its grievances against the order dated 20.05.2919 of the DRT but left it to question the said order of DRT before the 'appropriate forum'.

NHAI in the present appeal has raised serious challenge against the impugned order of the DRT but the one raised with lot of force by its learned counsel was that the DRT could not have passed the impugned direction against NHAI without formally impleading it in the ongoing proceedings and giving an opportunity to it to submit its detailed response in opposition to the claim of the SGS after its impleadment.

This appeal has been contested primarily by SGS. It filed a separate application for the dismissal of the present appeal of NHAI. The main ground pressed on behalf of SGS by its learned counsel Mr. Saket Sikri is that this appeal, which has been filed invoking Section 20 of the Recovery of Dents and Bankruptcy Act,1993, is not maintainable whether the impugned directions given to the NHAI by the Tribunal below can be said to be legal and justified or not. The submission of the learned counsel was that the sale of land in question had taken place under the directions of the Hon'ble Supreme Court though during the pendency of recovery case before the recovery officer attached to DRT-II, Delhi. It was contended that after the sale had been completed from all aspects and possession stood delivered to SGS upon execution execution nof formal sale deed in favour of SGS various government departments/authorities were approached by SGS for getting different sanctions etc. For the construction of a huge residential project on the land in question which is on the National Highway-24 but at every stage the concerned authorities were creating hurdles so that SGS was not able to start its time bound project. Then SGS approached the Hon'ble Supreme Court for necessary directions to different authorities for not creating hurdles in the smooth start of the Project under PMAY granted to SGS by UP Government. SGS had made a specific prayer before the Hon'ble Supreme Court in I.A.No. 526/2019 appointing the DERT itself as the nodal agency to look into the grievances of SGS regarding non sanction of plans etc. My attention was drawn to order dated 04.03.2019 passed by the Supreme Court on that prayer of SGS. That order has already been re-produced by me in the earlier part of this order. Hon'ble Supreme Court left it to the DRT concerned to look into the grievances of SGS, if approached by it, and feeling satisfied with arbitrary demands etc. of different authorities , when SGS had approached DRT-II, Delhi, the learned DRT had straightaway cleared all the hurdles for SGS and gave different directions vide impugned order, which has also been re- produced by me already one of which was to the present appellant to grant permanent NOC to SGA regarding entry and exit points for the re4sidential project in question from the National Highway and not to revoke provisional NOC which had been threatened to be revoked arbitrarily. Mr. Sikri submitted that the DRT has given the impugned direction to NHAI in exercise of the authority/jurisdiction conferred upon it by the Hon'ble Supreme Court and not under any provision under the Act of1993 and, therefore, no appeal lies under Section 20 of the Recovery of Debts and Bankruptcy Act,1993 before DRAT which has been invoked by NHAI. The remedy, if any, for the NHAI, submitted Mr. Sikri, lies somewhere else but certainly not way of present appeal since Section 20 could be invoked only in case DRT passes some order under the said Act of 1993 which orders are normally passed in cases involving banks and financial institutions and defaulting borrowers etc. and since in the present case land in question was purchased by SGS in execution proceedings involving a bank and its defaulting borrower Trust against whom a recovery certificate was issued for over hundred cores of rupees with a direction for its recovery by sale of the land in question and which land was purchased by SGS for over three hundred crores. After the sale process was over as far as the land in question is concerned the jurisdiction of DRT stood ousted. However, in the present case it is the Hon'ble Supreme Court which nhas permitted DRT to look into the grievances of SGS which it had earlier before approaching DRT sought to raise before the Hon'ble Supreme Court. Thus, in these circumstances, the jurisdiction of this appellate Tribunal under Section 20 could not be invoked by NHAI. A s far as the merits of the appeal of NHAI are concerned nothing much was said by the learned counsel for the SGS.

After giving my thoughtful consideration to these submissions of the learned counsel for SCS and going through the material brought on record particularly various orders passed by the Hon'ble Supreme Court, referred to already, I have unhesitatingly come to the conclusion that the objection raised by SGS that DRAT has no jurisdiction to entertain the present appeal is devoid of any merit and needs to be rejected. SGS itself had after coming to DRT after the Hon'ble Supreme Court had told it to approach the DRT for the redressal of its grievances persuaded the DRT to take back on its boar the disposed of bank's O.A. in which recovery certificate was finally issued against the Trust. That O.A. was under Section 19 of RDDBFI Act, 1993(now renamed as Recovery of Debt and Bankruptcy Act,1993). SGS had filed M.A.No. 60/2019 in that O.A. and had not initiated any proceedings independent of the O.A. Thus, every order which the DRT thereafter passed at the instance of SGS are deemed to have passed in the O.A.under Section 19 of the Act of 1993. Therefore, it does not lie in the mouth of SGS that NHAI should approach some other forum to impugn the directions given to it by DRT while allowing application no. 843/2019 of SGS. The legislature has made all orders passed by DRT appealable under Section 20 of RDDBFI Act,1993. Therefore, NHAI was fully within its rights to approach this appellate Tribunal to challenge the legality and propriety of the impugned order with which NHAI was affected and the order passed in M.A.No.843/19 affected it since some mandatory directions were given to be implemented by NHAI. Therefore, I reject this main objection raised on behalf of SGS regarding the non availability of the remedy of appeal under Section 20 of the Act of 1993.

As far as the grievance raised by NHAI that the impugned order of DRT directing NHAI not to revoke provisional NOC already given in January,2019 and to convert that provisional NOC into permanent NOC is liable to be set aside as the same has been passed without formally impleading NHAI in the proceedings started at the instance of SGS is concerned I find the same to be justified and merits acceptance. A perusal of the impugned order of DRT whereby application no. 843/2019 was decided in favour of SGS shows that the DRT without impleading NHAI in the ongoing proceedings in which SGS was seeking mandatory directions against NHAI mandatory directions have been passed against NHA I. The prayer thus made on behalf of NHAI to direct the DRT first to decide whether NHAI needs to be impleaded in the proceedings going on there and then to pass any directions against it in case it is ordered to be impleaded is fully justified and the impugned order passed in M.A.No. 843/2019 needs to be set aside and matter remanded back to DRT for fresh disposal of that M.A. keeping in mind the observations made in this order and uninfluenced by any of the observations made in the impugned order.

This appeal accordingly succeeds and the impugned order dated 20.05.2019 so far as it allows M.A.No. 843/2019 is set aside. The matter is remanded back to DRT to take a fresh decision in the matter after hearing all concerned parties. Considering the fact that SGS has been emphasising before all forums that despite having invested more than three hundred crores it has not been in a position to enjoy the fruits of its investment the learned DRT will make all efforts to decide M.A. No. 843/19 within four weeks from 31.10.2020 at 2 p.m. on which date the parties shall appear before the DRT to receive further directions. In case already a long date stands given the same shall stand pre-poned to 31.10.2020. It is, however, clarified that this Tribunal has not gone into the merits of the case on any aspect and the case is wide open before the DRT.