IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. OF 2008 (Arising out of SLP(C) No7722 of 2007)

Skyline Contractors Pvt. Ltd. & Anr. .Appellants Vs.

State of U.P. & ors. ...Respondents

J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. The appellants herein filed a writ petition before the Allahabad High Court for quashing an order dated 21.6.2006 issued on behalf of the New Okhla Industrial Development Authority (hereinafter referred to as ‘NOIDA’)cancelling the allotment of Plot no.A-28 in Sector 62 made in favour of the appellant.

3. Admittedly, the appellant made an application for allotment of the aforesaid plot measuring 8000 square meters pursuant to an advertisement published on behalf of the NOIDA inviting such applications and made an initial deposit of Rs.13,20,000/- while submitting the application. On 17.4.2003 an order of allotment was issued in favour of the appellant whereby the petitioner was required to deposit 25 per cent of the premium amount in cash or by a bank draft in favour of NOIDA within 60 days of such allotment. It was categorically stipulated that if the said amount was not deposited within the time specified the depositor’s earnest money would be forfeited and no extension of time would be granted for deposit of the said amount under any circumstances. The balance 75% of the premium amount was required to be deposited by the allottee in 10 equal half-yearly instalments along with interest at the rate of 14% per annum on outstanding premium. Here also, it was categorically stipulated that no extension for payment of instalments would be granted and if the allottee failed to pay the instalments within due dates the allotment would be cancelled and the amount equivalent to 25% of the premium would be forfeited in favour of the NOIDA. In exceptional circumstances, however, the Chief Executive Officer of NOIDA was vested with the discretion to extend the time for making deposits, which would be subject to payment of interest @ 17% per annum compounded every half yearly on the defaulted amount for the defaulted period.

4. As has been noticed by the High Court in its judgment impugned in this appeal, the appellants did not deposit any amount for a period of two and a half years after receipt of the allotment letter. The Authority wrote to the appellant on 3.5.2005 requesting the appellant to produce receipts of deposits, if any, made in pursuance of the allotment letter. Three months after receiving the said letter the appellant started making deposits in September 2005 and on 16.12.2005 wrote to the NOIDA asking for details with regard to the deposit of stamp duty, etc. for execution of the lease deed pursuant to the allotment made in its favour. Despite the said letter, the NOIDA cancelled the allotment made in favour of the appellants by its order dated 21.6.2006 on the ground that the appellant had failed to make the deposits as per clause 2(iv) of the Terms and Conditions for allotment. As stated hereinbefore, the writ petition was filed challenging such cancellation.

5. On considering the submissions made on behalf of the parties the High Court rejected the plea of the appellants that although the appellants had failed to deposit the premium amount in keeping with the terms and conditions of the allotment, the said amount subsequently deposited by the appellants had been duly accepted by the NOIDA which had accordingly waived such terms and conditions and the allotment made in the appellant’s favour could not have been cancelled on the ground that the same had not been deposited in time. The High Court also rejected the other submission made on behalf of the appellants that the NOIDA had acted wrongly in re-allotting the plot in question to the Respondent No.5 at a much cheaper rate than was demanded from the appellants. The High Court held that having failed to make the deposits within the time stipulated in the allotment letter the voluntary deposits subsequently made t