Allahabad High Court
Golfgreen Residency Pvt. Ltd. vs State Of U.P. And Another on 28 January, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 10.1.2023 Delivered on 28.1.2023 Court No. - 34 Case :- WRIT - C No. - 22433 of 2020 Petitioner :- Golfgreen Residency Pvt. Ltd. Respondent :- State of U.P. and Another Counsel for Petitioner :- Siddharth Singhal Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Saurabh Sinha Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri. Siddharth Singhal, learned counsel for petitioner and Sri. Saurabh Sinha, learned counsel for respondent no.2.
2. Petitioner a builder, is aggrieved that benefit of Zero Period Policy introduced by Noida Authority vide Government Order dated 28.5.2016 was wrongly not extended by impugned order dated 10.6.2019 as well as by order dated 28.8.2020 revision was also dismissed.
3. Learned counsel for petitioner has submitted that sub-lease was executed in favour of petitioner in regard to plot in question on 19.10.2012 however, National Green Tribunal vide order dated 14.8.2013 passed in Application No.158 of 2013 has restrained any construction within 10 Kms of Okhala Bird Sanctuary.
4. During pendency of above litigation before NGT on 7.10.2013, Environment Clearance was granted to the petitioner by State Legal Environment Impact Assessment Authority (SEIAA) however, in pursuance of a direction issued by National Green Tribunal, Environment Clearance was suspended vide order dated 28.10.2013 till issuance of Notification dated 19.8.2015 resulting in complete halt of construction.
5. Learned counsel for petitioner further submitted that Noida formulated a Zero Period Policy on 28.5.2016 for shifting premium installments along with interest and waiver of penal interest was also provided for Zero Period. However, complete benefit of Zero Period Policy was not granted to petitioner and it was limited for only two months i.e. from 14.8.2013 to 28.10.2013 and penal interest was waived for period between 14.8.2013 to 19.8.2015 and illegality perpetuated in dismissal of revision and consequently an erroneous demand was raised.
6. Learned counsel for petitioner further placed reliance on paragraph nos.7 and 9 of order dated 28.10.2013 passed by National Green Tribunal which are mentioned hereinafter:
"7. We make it clear that respect which are being considered for the purpose of issuance of EC either by the State Legal Environment Impact Assessment Authority (SEIAA) or by the MoEF within 10 km radius of Okha Bird Sanctuary till such notification is issued by the MoEF as Stated above, unless the authority is satisfied that the NBWL has given permission no EC shall be granted. In cases where the EC has been granted the EC shall be kept under suspension as inoperative unless and until NBWL gives NOC. Otherwise EC may be granted subject to the condition that the parties shall be referred to the MoEF which in turn shall send the project to the NBWL, whose clearance shall be final and till such time, no construction shall be permitted in respect of new proposals.
9. We make it clear that all other buildings which re build up without EC within 10 km. radius of Okhala Bird Sanctuary or within the territorial limit of eco-sensitive zone as may be notified by the MoEF as stated above are to be declared as illegal constructions and Government of UP shall take immediate steps for removal of those buildings after giving proper notice to the parties concerned."
7. Learned counsel for petitioner further placed reliance on following part of subsequent order dated 3.4.2014 passed by National Green Tribunal.
"vii Till such notification is issued, the interim order passed by this Hon'ble Tribunal as modified subsequently shall continue to be in operation".
8. Learned counsel for petitioner further submitted that petitioner was granted Environment Clearance on 7.10.2013, however, soon after in pursuance of an order passed by NGT construction came to halt which continued till issuance of notification from the Ministry of Environment and Forest on 19.8.2015, therefore, petitioner was entitled for complete benefit of Zero Period Policy.
9. Above submissions are vehemently opposed by learned counsel for respondent no.2 that Environmental Clearance Certificate was not subject matter of notification issued by Ministry of Environment and Forest, therefore, construction activity was not completely halt during that period and he placed reliance on factual status of projects at that time. He further submitted that petitioner was entitled to carry on construction activities in terms of Environmental Clearance granted and time period for calculating status of project shall be considered from period of execution of lease deed and not from the date of execution of sub-lease deed in regard of plot in question and it was responsibility of lessee or sub-lessee to obtain Environmental Clearance. Petitioner cannot take advantage of delay in completion of project due to their fault in garb of orders passed by National Green Tribunal.
10. Heard learned counsel for parties and perused the record.
11. There is no dispute that lease deed was executed in favour of petitioner on 29.10.2012 and subsequently an order was passed by National Green Tribunal restraining construction activity within 10 Kms of Okhla Bird Santuary.
12. Environment Clearance was granted to the petitioner on 7.10.2013, however, it appears that construction did not commence and taking note of order passed by National Green Tribunal dated 28.10.2013, petitioner did not continue with construction and waited till the Ministry of Environment and Forest issued requisite notification on 19.8.2015, therefore, there was a delay in completing the project.
13. National Green Tribunal in its order dated 17.9.2013 has issued clarification that earlier order restraining construction without proper authority shall be implemented scrupulously and State officials were directed to see that restriction is implemented and no further constructions are done in respect of 49 units (details were on record). However, there was no restraint order in respect of other projects including petitioner's project.
14. According to Zero Period Policy issued on 28.5.2016, period where construction was banned or stopped was due to an order passed by Court which shall be considered in accordance with aforesaid Policy.
15. In the impugned order, it has been specifically stated that plot in question was handed over in 2011 and taking note of order dated 28.10.2013 passed by National Green Tribunal, Noida Authority has permitted for construction however, except granting Occupancy Certificate.
16. Petitioner has not come up with any material on record that after sub-lease was executed in favour of petitioner and environmental clearance was given whether any constructions was done. No application was moved by petitioner either before authorities or before National Green Tribunal to seek clarification and nothing has been brought on record that petitioner's construction was stopped only due to implementation of order passed by National Green Tribunal, whereas the decision taken by Noida Authority was contrary to the stand of petitioner.
17. It is not in dispute that there is a huge delay in completing the project and its affect has adversely fallen on flat buyers. In these circumstances, I do not find any error in the impugned order whereby limited benefit of Zero Period Policy was granted to the petitioner.
18. Accordingly, this writ petition is dismissed.
Order Date :- 28.1.2023 SB