M/S Adore Infrasmith Pvt. Ltd. Thru. ... vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 18 December, 2024

[Cites 28, Cited by 0]

Allahabad High Court

M/S Adore Infrasmith Pvt. Ltd. Thru. ... vs State Of U.P. Thru. Prin. Secy. Deptt. ... on 18 December, 2024

Bench: Pankaj Bhatia





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


								Reserved: 26.11.2024
 
							     Pronounced: 18.12.2024
 
				        Neutral Citation: 2024:AHC-LKO:84699
 

 
Court No. - 7
 

 
Case :- WRIT - C No. - 8858 of 2024
 
Petitioner :- M/S Adore Infrasmith Pvt. Ltd. Thru. Authorised Representative Mr. Amit Kumar Sharma And Another
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Infrastructure Industrial Development Lko And Another
 
Counsel for Petitioner :- Alok Kumar Mishra, Apoorva Tewari
 
Counsel for Respondent :- C.S.C.,Prashant Kumar Singh
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Shri J. N. Mathur, learned Senior Advocate assisted by Ms. Priyadarshini Dewan, Ms. Aishvarya Mathur and Shri Deepak Agarwal appearing on behalf of the petitioners and Shri Prashant Chandra, learned Senior Advocate assisted by Shri Prashant Kumar Singh, Advocate appearing on behalf of the respondents.

Shri Apoorva Tewari, Advocate represents for intervenor and Shri Shobhit Saxena and Shri Vikram Soni, Addl. Chief Standing Counsel appear for respondent no.1.

2. The present petition has been filed by the petitioners challenging the order dated 20.06.2024 passed by the respondent no.1 in Revision Petition No.3262/77-4-24/09 Appeal/24 under section 41(3) of the Uttar Pradesh Urban Planning and Development Act, 1973 read with Section 12 of the U.P. Industrial Area Development Act, 1976 whereby the respondent no.1 had dismissed the revision petition and upheld the order dated 01.02.2012 by which the land/plot allotted to the petitioners has been cancelled by the respondent no.2.

3. The facts, in brief, leading to filing of the present petition are that the respondent no.2 introduced a Scheme for allotment of Residential Township at Greater Noida bearing Scheme Code No.YEA-RT-02. In terms of the said Scheme, sealed tender was invited in two bid system for allotment of Residential Township Plots in Sector 22-A and Sector 22-D. The said allotment of the plot was proposed to be given on a lease period of ninety years. The said allotment letter, contained the following particulars :

Plot No./ Sector Area in Sq.mtrs. (Approx) Reserve Price (Rs. Per sqm) Registration Earnest Money (Rs. in Crores) Processing Fee (Non-Refundable and Non-Adjustable Remarks TS-3/Sector 22 D 400000 4500/-

10 lacs Section- 4/17 done, land acquisition in process.

The conditions specified under the said allotment letter were relevant for the present dispute are as under :

G.3. The successful bidder shall be required to pay 10% of the total premium of the plot as reservation money after adjusting registration/earnest money within 30 days from the date of issuance of Reservation Letter, otherwise the claim for allotment will be treated as deemed cancelled. No correspondence will be entertained in this regard. After confirming the receipt of 10% amount as mentioned above and after the land has been acquired and possession taken by YEA, the formal Allotment Letter will be issued.

G.4. The allottee on issue of formal Allotment letter shall be required to pay 20% of the total premium of the plot allotted as allotment money within 60 days from the date of issuance of such Allotment Letter.

N.1 Possession of allotted land will be handed over to the Lessee after execution and registration of lease deed.

N.2 Execution and registration of lease deed can be done only after a minimum payment of 30% of premium and payment of one year lease rend in advance.

Z.8 The Lease Deed/allotment will be governed by the provisions of the U.P. Industrial Area Development Act, 1976 (U.P. Act No.6 of 1976) and by the rules and/or regulations made or directions issued, under this Act.

4. It has been also been argued and placed on record that the power conferred upon the respondent no.2 authorities is by virtue of Section 7 of the U.P. Industrial Area Development Act, 1976 which is reproduced herein below :

Power to the Authority in respect of transfer of land "7. The authority may sell, lease or otherwise transfer whether by auction, allotment or otherwise any land or building belonging to the authority in the industrial development area on such terms and conditions as it may, subject to any rules that may be made under this Act think fit to impose."

5. In terms of the said proposal floated by the respondent no.2, the petitioner no.1 formed a Special Purpose Company (SPV) which was also required in the same Tender Document. In the said SPV,(Petitioner No.1) the petitioner no.2 had subscribed to the share capital in stages.

6. The petitioners submitted a tender form for Plot No.TS-3, Sector 22-D for an area approximately 100 acres on 08.12.2010. The petitioners qualified in the pre-qualifying bid and thereafter the financial bid was to be opened on 14.12.2010. In terms of the acceptance of pre-qualifying bid, the respondent no.2 issued a reservation letter dated 27.12.2010 for township YEA-RT-02, Plot No.TS-3 Sector 22 D for an area approximately 100 acres which was specified in the said reservation letter, which is contained in Annexure no.5 to the writ petition. The total premium amount payable as indicated in the reservation letter was Rs.192,00,00,000/- (Rupees One Hundred Ninety Two Crores Only), out of which the petitioners were called upon to pay an amount of rupees ten per cent of the total premium of the plot within thirty days. It was also indicated that the petitioners had also deposited an earnest money of Rs.10.00 crores and the balance reservation money payable was Rs.9,20,000,00/- which was required to be deposited within thirty days from the date of the issuance of the said letter. It was also indicated that after the deposit is made within thirty days, a formal letter can be issued as per Clause G(3) of the bid document.

7. It is stated that the petitioners deposited the amount as was required in terms of the reservation letter and the petitioners were issued an allotment letter dated 20.06.2011 by the respondent no.2 informing that the plot in question has been allotted and in addition thereto, an excess area of 5869 sq. mtrs has also been allotted at the same rate i.e. Rs.4800/- per sq.meter. It was further informed to the petitioners that the 100% excess area premium, works out to Rs.2,83,00,800/- and the petitioners were called upon to deposit the entire amount of the excess area within thirty days. The petitioners were also directed to deposit 20% of the total premium amount of Rs.38,40,00,000/- for the remaining area within sixty days i.e. by 18.08.2011.

8. It is the case of the petitioners that in terms of the stipulation contained in Clause G(3) of the tender document, the allotment letter could be issued only after the entire land, proposed to be transferred, has been acquired and the possession has been taken by the respondent no.2 which according to the petitioners was not done. The petitioners wrote a letter expressing apprehension that the entire land, as proposed to be allotted to the petitioners, was not available with the respondent no.2, based upon the information received by the petitioners. The petitioners through their letter dated 19.07.2011 sought queries with regard to the availability of the land and the possession, as it was common knowledge that on account of farmers' agitation, the development authorities could not have access to the land leave alone possession. The said letter was given by the petitioners on account of the judgment passed by the Supreme Court and the High Court questioning the acquisition proceedings taken out and the various restraint orders passed by the High Court. The said letter was duly received by the respondent no.2 on 19.07.2011. The petitioners also deposited 100% of the premium amount of the extra area amounting to Rs.2,83,00,800/- (Annexure no.9).

9. It is thus, stated that on the one hand the petitioners had paid an amount of about Rs.23.00 crores to the respondent no.2, however, they were not clear with regard to the acquisition of the land, the possession of the same being with the respondent no.2 and the practical ability of the respondent no.2 to execute the lease deeds, as such, the petitioners once again gave a letter dated 04.08.2011 (Annexure no.10) expressing their apprehensions. The petitioners also requested vide their letter dated 16.08.2011 to extend the period of depositing the allotment money pending clarifications sought from the respondent no.2.

10. It is claimed that the respondent no.2 never responded to any of the two communications and thereafter again request was made seeking clarifications. It is claimed that the respondent no.2 instead of disclosing the facts, as sought by the petitioners, issued a letter dated 08.09.2011 extending the time to pay the instalments and also imposed interest on the outstanding instalments. It is further pleaded that not only the petitioners, the other allottees also raised similar apprehension, as such, a board meeting was convened on 25.11.2011 wherein the factual situations were considered/discussed and Agenda No.43 of 2024 was passed granting blanket extension to all the allottees till 31.01.2012.

11. It is stated that on one hand, the Board Meeting had resolved to extend the time up to 31.01.2012, however, the respondent no.2 imposed a burden of interest against the petitioners and the petitioners were called upon to give an undertaking to pay the amount in future along-with the interest. The petitioners once again through their letter dated 25.01.2012 sought similar clarifications with regard to the acquisition of the land, the possession with the respondent no.2 and the agitations of the farmers as well as the guidelines laid down by the Allahabad High Court in judgment dated 19.07.2011 passed in Writ Petition No.17068 of 2009. The petitioners also stated that they were ready and willing to furnish a cheque to protect the interest of the authority. It is claimed that the respondent no.2 instead of clarifying the issue with regard to possession and the farmers' agitation proceeded to pass an order dated 01.02.2012 cancelling the allotment / reservation of the Plot No.TS-3 and along with the said, also forfeited the moneys deposited by the petitioners. As the said cancellation was contrary to Clause G(3) and G(4) of the Tender Document as well as contrary to the decision dated 25.11.2011 passed in 43rd Board Meeting, the petitioners, to seek further clarification, sought the clarification with regard to possession of the land proposed to be allotted to the petitioners from the Tehsildar and a communication was also received vide letter dated 25.02.2012, which is contained in Annexure no.16 (Colly). The petitioners have also placed on record that on the basis of enquiries made by the petitioners on the principle of buyer beaware, information was received that several writ petitions were filed by the farmers against the acquisition and the orders had been passed by the High Court, some of the orders are on record as Annexure no.17, in which status-quo was directed to be maintained.

12. It is further pleaded that concealing the pendency of the writ petition at the High Court by the farmers and original landowners, demands were being raised from the petitioners, even no demarcation of the land had been made, no development work had been carried on the one hand and on the other hand, penal interest was being sought to be recovered from the petitioners.

13. The petitioners, on account of the attitude of the respondent no.2, challenged the cancellation order dated 01.02.2012 by filing a Writ Petition No.9959 of 2012 in which an interim order was granted by the High Court restraining the respondent no.2 from allotting the land to any other person. It is also pleaded that during the pendency of the writ petition no.9959 of 2012, the respondent no.2 acquired and took possession on the parts of the land in the year 2011 to 2017 subsequent to the passing of the cancellation order and it was also pleaded that the entire land proposed to be allotted to the petitioners was still not available for disposal with the respondent no.2, as such, the petitioners filed a Revision under section 41(3) of the Urban Planning and Development Act 1973 read with section 12 of the U.P. Industrial Area Development Act, 1976 before the respondent no.1. Along with the said, an undertaking was given to withdraw the writ petition no.9959 of 2012, which has been withdrawn. The revision petition filed by the petitioners, without even considering the facts, came to be dismissed by means of the impugned order dated 20.06.2024, which is challenged in the present writ petition.

14. It is also pleaded that the petitioners had filed a representation dated 01.07.2024 before the Additional District Magistrate, Land Acquisition, Gautam Buddh Nagar for gaining information regarding the land acquisition and the present status of the land forming part of Plot No.TS-3, Sector 22-D and a reply was received on 04.07.2024 indicating the said two orders in relation to the land falling under Plot No.TS-3 which continued from 06.01.2012 to 2017. This has been pleaded to indicate that at the time of cancellation, the respondent no.2 did not have the possession of the land, proposed to be allotted to the petitioners. It has also been pleaded in the information received under RTI informing that the acquisition in respect of the properties comprising property no.TS-3 continued till 2015 and the last notification itself is dated 16.04.2015.

15. In the light of the said facts, Sri J. N. Mathur learned Senior Counsel appearing on behalf of the petitioners strenuously argues that the reservation letter, which is starting point of the allotment, was issued to the petitioners after the petitioners having qualified for the bids and the petitioners had deposited 10% of the amount as per the reservation letter and the allotment letter thereafter had to be issued after the events as indicated in Clause G(3) of the bid document had happened, which according to the petitioners never happened and the respondent no.2 on the one hand did not clarify the facts by responding to any of the letters and on the other hand, insisted on the deposit of 20%, which was to be done after the formal allotment letter was to be issued after acquiring the land and not only the allottment letter sans possession was issued, the petitioners were also saddled with burden of interest. He further argues that in terms of the provisions of the Contract Act, particularly Section 54, it was a contract of reciprocal promises and once the respondent no.2 could not perform the promise made, they could not have claimed the performance of promise from the petitioners.

16. It is further argued by Sri J. N. Mathur, that on the one hand, the respondent no.2 which is a 'State' and is bound to act in a fair and reasonable manner, even in the contractual matters, has failed to act fairly and legitimately inasmuch as they started the process of allotment even without having the actual physical possession of the land in question. He draws my attention to the general directions issued by the High Court in Writ Petition No.26687 of 2022 that the Industrial Development Authorities should not take steps for allotment of plots unless they have the physical possession of the land proposed to be allotted. It is argued that even the said order has been accepted and a general order has been issued on 01.05.2023 (Annexure No.35) restraining the development authorities from taking any steps for allotment without having the possession of the land.

17. In the light of the said, it is argued that on the one hand, the respondent never had the possession of the land in question and on the other hand the allotment of the petitioners was cancelled, which is not only arbitrary and illegal but is also against the principle of fair decision making and thus violative of the contract and also Article 14 of the Constitution of India.

18. During the course of hearing the petition, on the basis of the pleadings, an order came to be passed on 18.10.2024 calling upon the respondents to file a counter affidavit specifically stating that whether the entire land proposed to be allotted was in the occupancy of the respondent no.2 prior to the issuance of the allotment letter in the year 2012 or not and also inform the current status of the possession of property and whether, the respondent no.2 was in effective control of the property free from encumbrances.

19. In terms of the said order, a counter affidavit was filed, however, the same was lacking in material in particular as sought by this Court vide its order dated 18.10.2024, as such, a supplementary better counter affidavit was filed on 23.11.2024 by the respondents. In the said affidavit, it has been stated as under with regard to the information sought in para-5 :

S.No. Particulars Area (in sq. m.) A. As on date of issuance of the Allotment Letter

1.

Total area of the Plot (TS-03, Sector 22D) under YEIDA's possession 3,91,386

2. Total area of the Plot (government land) under resumption process 14,510

3. Total area of the Plot affected by stay order of the Hon'ble Courts NIL B. Status as of today

4. Total area of the Plot currently under possession of YEIDA (including the area affected by stay orders by the Hon'ble Courts) 4,05,896 (Total area of land at Serial No.1 and 2 above)

5. Total area of the Plot currently affected by the stay order of the Hon'ble Court.

30,880

6. Total area of the Plot which is currently subject matter of litigation before the Hon'ble Courts, but no stay has been granted 53,320

20. Along with the said supplementary better counter affidavit, the annexure has been filed indicating the dates on which the property falling in the area under Plot No.TS-03 were acquired and the possession was taken, dates range from 31.01.2011 up to 12.12.2017.

21. In response to the said supplementary better counter affidavit filed by the respondent no.2, the submission of the counsel for the petitioners is that the respondents have admitted that they never had the possession as is clear from the details disclosed in the affidavit and they are still not in possession of the land free from encumbrances.

22. It is also argued by Sri J. N. Mathur, learned Senior Advocate that in terms of the brochure which is on record containing bid conditions, it can be clearly discerned that the entire scheme was floated by the respondent no.2 for development of residential township. The brochure itself indicated that the proceedings under section 4/17 of the Land Acquisition Act were in progress and in that context, Clause G(3) was incorporated to state that after the land has been acquired and the possession taken by the respondent no.2, the formal allotment letter shall be issued. He argues that admittedly as per the supplementary affidavit, the land was never acquired till the year 2017 at least and even till date, the entire land is not in actual physical possession of the respondent no.2 and thus, the occasion for issuance of a formal allotment letter has not even arrived as yet, whereas, the respondent no.2 have not only cancelled the allotment but have raised demands which are contrary to their own documents. He further argues that the contract in question has to be interpreted keeping in view the intention of the parties, that being the development of the township over the allotted land and it is not conceivable as to how, the township could be developed without the allotment of the land along with a clear title. He further argues that the petitioners participated in the bid, for developing the township and not for raising any personal constructions and in case, the petitioners had taken steps for allotment or had received any money from the proposed home buyers, the same would have been in contempt of the various orders passed by the High Court and would have also been hit by the doctrine of lis pendens.

23. In the light of the said, it is argued that the petitioners are ready and willing to take the land, which is available with the respondent no.2 in terms of their admission contained in the supplementary affidavit and also undertakes to pay the amount as per the reservation order and with regard to the balance land, which is still not in the actual physical possession of the respondent no.2, he argues that the same can be deferred and the steps for allotment be taken after the land is actually acquired and the actual physical possession is taken by the respondent no.2.

24. Learned counsel for the petitioner also argues that the benefit of zero period policy extended by respondent no.2 authority from time to time on account of exigencies should also be extended to the petitioners as there was no fault of the petitioners.

25. Shri J.N. Mathur further draws my attention to the specific pleading of Paragraph No.7(S), which are to the following effect:

"7(S). That the Petitioners subsequent to the impugned order of cancellation made enquiries from the Revenue Records for the agricultural land comprising in the plot allotted to the petitioner. As per the information derived by the Petitioner from the revenue records, the land allotted to the Petitioner comprises in the following villages Niloni Shahpur, Kherli Bhaw & Mirjapur. The copy of the details of the revenue records and the khasra numbers comprising in the said land as provided by the Tehsildar vide its letter dated 25.02.2012 and the site plan are being collectively annexed herewith and marked as ANNEXURE -16 (COLLY) to this writ petition."

And the reply of the respondents to the said paragraph is contained in Para - 97 of the counter affidavit, which is as under:

"97. That the contents of Paragraph 7(R) and (S) are denied and disputed. The Petitioner was making unnecessary queries about the land acquisition process and the possession of land in order to avoid depositing of the allotment money within the prescribed time. It is apparent that the Petitioner was not interested in depositing the allotment money but was only interested in delaying the deposit of the money. It is submitted that making unnecessary queries will not entitle the Petitioner not to deposit the allotment money. When the Petitioner was aware of the terms and conditions of the Scheme of Allotment, raising doubts or making queries about the land acquisition process was unnecessary exercise. It is apparent that the Petitioner was not interested in depositing the allotment money. Therefore, the queries made by the Petitioner, had no relevance. The Respondent Authority seeks leave of this Hon'ble Court to refer and rely on the submissions made in preliminary submissions above."

26. He also draws my attention to Paragraphs 55 and 56 of the counter affidavit filed by the respondent no.2 which is to the following effect:

"55. It is apparent from the conjoint reading of all the clauses that the acquisition of land including was underway when the Scheme of Allotment was launched, and the Allotment Letter was issued. It is submitted that the majority of the land forming part of the Plot allotted to the Petitioner was already in possession of the Respondent Authority prior to the issuance of the Allotment Letter.

56. This fact is corroborated by the documents annexed to the Writ Petition by the Petitioner, which include:

a. Information received from the office of the Tehsildar on 25 February 2012, showing that, except for a few khasras, the entire Plot stood acquired and was in possession of the Respondent Authority (@Pg. 136-157 of the Writ Petition). Further, the land portions shown to be not acquired are that of Gram Sabha, which had to be resumed by the State Government. b. The list of litigations and interim orders annexed by the Petitioner (@Pg. 318-323), which demonstrates that no interim order or stay was in operation at the time the Allotment Letter was issued."

27. In the light of the said, it is proposed to be argued that even the factual assertions made by the Tehsildar who is a functionary of the government has not been specifically denied and to that extent should be treated as admitted.

28. Shri Prashant Chandra, learned Senior Advocate appearing for respondent no.2 strenuously argues that the points as canvassed by the counsel for the petitioners merits rejection inasmuch as in the scheme of allotment, there was a reference that the allotment letter shall be issued after the possession is obtained and the possession was well with the respondent authority as narrated in the supplementary affidavit filed and specifically disclosed in Annexure - SCA1 which indicates the date of possession. He argues that it is the date of possession and not actual physical possession as claimed by counsel for the petitioners which was relevant as per the scheme. He submits that the Respondents always had paper possession and thus had rightly issued allotment letter. He further submits that the words used in the tender document is possession and not actual physical possession as is being argued on behalf of Petitioners. He further argues that the petitioners have admittedly not paid 20% of the amount after the issuance of the allotment letter and thus, have failed to honour the conditions and thus, respondent no.2 was well within its right to cancel the allotment. It is further argued that it is clearly well settled that judicial review on contractual matters is very limited and is available only to the extent of there being arbitrariness, irrationality, unreasonableness, bias and malafides, and in the absence of any such allegation, it is not open for this Court to judicially review the order of cancellation as has been passed by respondent no.2. He further argues that the issue whether actual physical possession was taken or not cannot be raised in petition under Article 226 of the Constitution. He further draws my attention to various clauses specifically Clause G(10) of the scheme which states that in case of default, the allotment will be cancelled without any further notice. It is further argued that Clause H of the scheme provides that a maximum of 120 days extension will be provided to deposit the reservation money/allotment money subject to payment of interest @ 15% per annum on pro-rata basis. He further argues that the petitioners have defaulted in payment of the allotment money as indicated in the allotment letter. It is further stated that despite various explanation sought, the deposits were not made and he draws the reference to the market conditions as pleaded by the petitioners in his communications. He further states that the demarcation of the land and the construction of the approach road etc., are to be done by the authority when the allottee deposits the allotment money and thereafter process of demarcation is done and the physical possession is given to the allottee and development works are undertaken by the authority, and as the petitioners have failed to deposit the allotment money, there was no reason for carrying out the development work. He further argues that the petitioners have not come with clean hands and have failed to fulfil its part of the contractual obligation and are not entitled to equitable relief from this Court. He further argues that the petitioners having failed to deposit the money after issuance of allotment letter are not entitled to Zero benefit policies as claimed and states that the money forefieted was wholly justified.

29. As regards the certificate issued by the Tehsildar, he argues that it is not the Tehsildar who is entitled to give any certificate with regard to possession. It is further argued that in terms of the scheme of allotment it was particularly stated in Clause A of the scheme that Section 4/17 has been done and the land acquisition is in process. It was also indicated in Clause F(7) that the size of plot may be increased and decreased. It was further stated in Clause J that the plot will be accepted "As is where is basis". It was further stated in Clause N that the possession of the allotted land would be entitled only after execution and registration of the lease deed which is dependant on payment of 30% of the premium amount and one year lease rent in advance. It is essential to refer to Para - 7 of the supplementary affidavit filed by the respondent authority which is to the following effect:

"7. In this background, had the Petitioner fulfilled its obligations and paid the allotment money in the timely manner, it would have obtained possession of entire allotted land except for such portions for which status quo order has been granted, as stated above. Having not fulfilled its obligation to pay the allotment money, the Petitioner cannot approach this Hon'ble Court for an equitable relief."

30. In the light of the said observation, Shri Prashant Chandra, learned Senior Advocate argues that the petition deserves to be dismissed.

31. It is essential to notice that when the petition was filed, an application was filed by one intervenor on 16.10.2024 seeking to intervene in the said proceedings. The claim of the intervenor was that in terms of a Memorandum of Understanding (MoU) entered on 07.12.2010, the companies namely Anova Infracon Private Limited, Prismatic Developers Private Limited, Indo Infracon Private Limited and Vipul Limited were the consortium members which has formed its Special Purpose Vehicle (SPV) for the purpose of applying for the allotment of the residential plot and the name of the SPV created was Adore Infrasmith Private Limited, the petitioner herein.

32. It is further stated that in the year 2011 some dispute arose among the consortium members for which a petition was filed under Section 397-398 of the Companies Act alleging oppression and mismanagement in relation to affairs of Adore before the Company Law Board, Delhi bearing Company Petition No.41(N/D)/2012 where allegations were levelled of mismanagement and oppression.

33. It was also stated that during the pendency of the said company petition, applicant no.2 was introduced and his application was also allowed by National Company Law Tribunal, New Delhi. It was stated that in terms of the MoU entered into in between the parties on 19.07.2019, an agreement was reached to settle the ongoing dispute and in terms of the settlement, the company petition was disposed off on 31.10.2019 by the Tribunal. It is stated that in terms of the order passed by the Tribunal on 31.10.2019, an amount of Rs.3.5 Crores was paid by applicant no.2. It is stated that despite payment of certain money, the dispute continued and the shares which were agreed to be transferred were never transferred. It is further stated that the MoU entered into in between the parties was amended by two addendums namely agreement dated 16.01.2020 and agreement dated 25.01.2024 where the amount payable was enhanced. It is stated that substantial amount as agreed in the amended agreements has been paid. It was also stated that as the terms of the MoU were not being complied with, a legal notice was sent and an application was filed before the Tribunal seeking execution of the terms of MoU on 15.10.2024 contained in Annexure - 5. The prayers made in the said application are as under:

"(a) Pass an order directing the Respondents to execute the Share Purchase Agreement (SPA) as per the terms of the MOU/Decree;

Alternatively, this Hon'ble Tribunal may be pleased to draw up the Share Purchase Agreement (SPA) in accordance with the Memorandum of Understanding (MOU)/Decree, and have the same executed by the parties in the interest of justice;

(b) Pass an order directing the Respondents to take necessary steps to transfer the shares of Respondent No. 2 and Respondent No. 3 in favour of the Petitioner in terms of provisions under law and also to do all such acts as may be required to effectuate the same;

(c) If for any reason whatsoever, the MOU/Decree is not implemented or cannot be implemented, the proceedings in the CP No. 41(ND)/2012 be revived, and the Respondent(s) be directed to refund all amounts paid by the Petitioners along with interest from the date of such payment until realization;

(d) Pass any other order and/or direction that the Hou'ble Tribunal may deem fit in the interest of justice."

34. In the light of the said, it is proposed to be argued that the applicant has a right to intervene. Some arguments were also raised with regard to pendency of writ petition filed by the petitioner at Allahabad, however, the said contention was given up by Shri Apoorva Tiwari, Advocate after the writ petition was withdrawn, thus, based upon the reliefs claimed for execution of the MoU before the Tribunal, it was claimed that the applicant should also be heard.

35. The said application filed by the intervenor was seriously opposed by the counsel for the petitioner by arguing that no rights have accrued to the said applicant in the MoU and the rights claimed by the applicant are yet to be adjudicated by the Company Law Tribunal. It was also pleaded that in the same relief, the applicant has prayed for refund of the money also and thus, beyond the claim of refund of money, no further rights accrue in favour of the applicant to participate in the present proceedings as the MOU already stands terminated due to alleged non payment. He further argues that even in terms of the initial MoU, it was the lead member alone who was authorized and entitled to enter into any agreement with respondent no.2 and thus, no such intervention should be allowed. It is further argued that shareholding of the MoU itself reveals that the applicant has shareholding of 0.019% and thus, in any case, he has no claim whatsoever. He, thus, argues that the applicant should not be permitted to intervene and should be relegated to seek his remedy of refund in accordance with law.

36. In the light of the factual arguments raised and recorded above, this Court is to decide the issues that arise in terms of the pleadings and in between the petitioner and respondent no.2 on one hand and the petitioner and the applicant intervenor on the other hand.

37. While dealing with the issues that arise in view of the pleadings in between the petitioner and respondent no.2, it is to be seen whether in terms of the reservation letter and the conditions of the tender which are relevant for adjudication.

38. In terms of the brochure as floated by respondent no.2, the entire Scheme was for construction of group housing on the lands to be allotted by respondent no.2 and the constructions were to be carried out by the allottees. The relevant conditions as specified in the brochures are contained in Annexure - 23. The salient features which are relevant in the present case are quoted herein below:

"A. DETAILS OF PROPERTY:

Plot No./ Sector Area in Sq.Mtrs. (Approx.) Reserve Price (Rs. Per Sqm.) Registration/Earnest Money (Rs. in crores) Processing Fee (Non-Refundable and Non-Adjustable) Remarks TS-1/Sector-22A 400000 4500/-

10 10 lacs Land acquired and in possession of YEA TS-1/Sector-22D 400000 4500/-

10 10 lacs Section -4/17 done, land acquisition in progress.

TS-2/Sector-22D 400000 4500/-