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IN THE HIGH COURT OF ALLAHABAD
Saral Srivastava, J.
Ghaziabad Development Authority - Petitioner
Vs.
District Judge And Another - Respondent
Matters Under Article 227 No. - 5135 of 2016
Decided On : 25-07-2022
Constitution of India, 1950 - Article 227 - U.P. Urban Planning and Development Act, 1973 - Section 18(6), (4), (4-A) - Transfer of Property Act, 1882 - Section 111 (g), 105, 108 - Indian Easements Act, 1882 - Section 52 - Scheme for Allotment of Plots - Lease - Order of Cancellation of Agreement - Whether agreement has trapping of lease or not - Whether a document creates a licence or lease - Whether they intended to create a lease or a licence – Held, Stipulations in agreement leave no manner of doubt that exclusive possession of plot has been handed over to respondent no.2 with an intention to use and enjoy property - Further, terms and conditions stipulated in agreement as well in brochure and recitation in possession memo do not reflect that only a right to use property has been given to respondent no.2 while possession is retained by G.D.A - Therefore, applying principles laid down by Apex Court in aforesaid cases, only irresistible conclusion which can be arrived at in facts of present case is that agreement is a lease - Notice under reference seeks to cancel allotment, without allowing society to undertake construction of school in extended period, against payment of charge prescribed under section 18(4A) of Act ibid - Proposed action is bad in law as it tends to curtail statutory right of Society vested under Act under which Authority is created - Fact that G.D.A. has treated document to be a lease is also apparent from fact that notice has been issued to respondent no.2 under Section 111(g) of the Act, 1882 - In such view of fact, this Court does not find any illegality in order impugned - Petition dismissed.
JUDGMENT :
Saral Srivastava, J.
1. Heard Sri Mahesh Narain Singh, learned counsel for the petitioner, and Sri Shashi Nandan, learned Senior Advocate assisted by Sri Kashif Zaidi, learned counsel for the respondents.
2. This petition under Article 227 of the Constitution of India has been filed by the petitioner-Ghaziabad Development Authority (hereinafter referred to as 'G.D.A.') challenging the order dated 14.04.2016 passed by the Additional District Judge, Court No.1, Ghaziabad by which he has allowed the appeal of the respondent no.2 under Section 18(6) of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'Act, 1973') and directed the petitioner to reconsider the case of respondent no.2 under Section 18(4-A) of the Act, 1973.
3. The facts, in brief, are that G.D.A. floated a scheme for allotment of plots to Creche/Nursery/Primary/High School/Degree College, Educational Institutions and invited application for the same. The G.D.A. issued a brochure containing terms and conditions of registration and allotment of plots.
4. Under the scheme floated for allotment of plots, respondent no.2 applied for allotment of a plot alongwith the registration amount. The G.D.A. informed respondent no.2 vide letter dated 24.06.2008 that the plot situated at Indirapuram, Nyay Khand-1, Ghaziabad has been allotted to the society with the approval dated 20.06.2008 of State of U.P. The Vice Chairman of the G.D.A. issued a consequential order dated 24.06.2008.
5. The rate of the plot was Rs.3600/- per sq. meter and the area of the plot was 7363.96 per sq. meter. The total value of the plot was Rs.2,65,10,256/-. Respondent no.2 was also directed to pay a sum of Rs.53,02,052/- towards the location charge and Rs.31,81,231/- as lease rent.
6. On depositing the aforesaid amount as well as fulfillment of terms of allotment, the G.D.A. executed an agreement dated 31.08.2008 titled as ^^vkoklh; {ks= esa Ldwy ds fuekZ.kkFkZ xkft+;kckn fodkl Ákf/kdj.k dh Hkwfe dk lafonk** (hereinafter referred to as 'agreement') in favour of the respondent no.2.
7. The agreement was registered in the office of Sub-Registrar, Ghaziabad on the payment of stamp duty of Rs.24,50,000/-. The G.D.A., thereafter, delivered the possession of the said plot to respondent no.2 on 30.09.2008. Thereafter, respondent no.2 submitted a plan for the construction of the building on the said plot, but the plan submitted by respondent no.2 was not approved by the G.D.A.
8. The record reflects that a notice under Section 111 (g) of the Transfer of Property Act, 1882 (hereinafter referred to as 'Act, 1882') was issued by G.D.A. calling upon respondent no.2 to show cause as to why the agreement be not cancelled for non-construction of building over the said plot within five years from the date of allotment which is a breach of the condition of the agreement. The reply was submitted by respondent no.2, but G.D.A. being dissatisfied with the reply of respondent no.2 cancelled the aforesaid agreement on 30.06.2014. Accordingly, a communication was sent to respondent no.2 vide letter dated 02.07.2014 informing about the cancellation of the agreement.
9. Feeling aggrieved by the order of cancellation of agreement and allotment of plot, respondent no.2 preferred an appeal bearing Appeal No.55 of 2014 under Section 18(6) of the Act, 1973 on the ground that respondent no.2 is entitled to benefit of Section 18 (4-A) of the Act, 1973 on payment of the surcharge.
10. The appeal was opposed by the petitioner contending inter-alia that respondent no.2 is not entitled to the benefit of Section 18(4-A) of the Act, 1973 as only an agreement has been entered into between the parties and the lease deed is yet to be executed between the parties. The said appeal was allowed by the Additional District Judge, Court No.1, Ghaziabad vide order dated 14.04.2016, which is impugned in the present writ petition.
11. The case of respondent no.2 is that the order of G.D.A. dated 02.07.2014 cancelling the allotment
The distinction between a license and a lease is determined by the intention of the parties, as reflected in the deed, rather than merely the possession of the property.
The employer was at liberty to allot any other flat to the employee on his transfer to another station and assign the premises fallen vacant by virtue of transfer to any other employee.
An Agreement to Lease which does not create a present demise is classified as a license, not subject to stamp duty as a lease under relevant statutory provisions.
(1) Decisive consideration in determining whether an agreement creates relationship of lessor and lessee or merely that of licensor and licensee is intention of parties – This intention has to be asc....
The distinction between lease and license must adhere to explicit terms of agreements, with possession alone insufficient to confer tenancy rights.
The substance of the agreement, the intention of the parties, and the nature of the rights granted are crucial in determining whether an agreement creates a lease or a license.
The main legal point established in the judgment is the significance of exclusive possession, intention of the parties, and the language used in the agreement in determining the jural relationship be....
Determination of lease vs licence hinges on the parties' intent and statutory interpretations concerning commercial properties, affirming precedent.
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