HC upholds JDA’s decision of cancelling Samdariya Mall lease

Source: The Hitavada      Date: 02 Oct 2018 10:37:32


 

Legal Correspondent,

Division bench of the MPHC on Monday, has issued order regarding the legality of the Samdariya Mall that “Jabalpur Development Authority (JDA) decision of the cancelling the lease deed of the Samdariya Mall granted to Samdariya Builder, is right. Court also rejected the additional lease of land to the Samdariya Mall. Court directed JDA to recover the fine against the Samdariya Builder for illegal construction of extra three floors in Samdariya Mall”.


In the matter related to legality, validity of the Samdariya Mall, the division bench of the MPHC comprising Justice J K Maheshwari and Justice Sujoy Paul has issued detailed order that "In view of foregoing analysis, in writ petition filed by M/S Samdariya Builder Private Limited (SBPL), the impugned orders passed by State, JDA to the extent SBPL was held responsible for not following the reservation policy for allotment of shop and to the extent the action of Chairman of JDA in waiver of interest on belated payment of premium was held to be illegal, are set aside.

Remaining part of impugned orders with regard to SBPL are affirmed. The writ petition filed by Bank of Baroda against JDA is dismissed. The writ petition filed by Manish Kothari, leases, tenants also dismissed. Writ petition (PIL) filed by Sushil Kumar Mishra is allowed in part to the extent mentioned in answer to Issue No.2 and 11.

As a consequence, the JDA shall recover the expenditure of laying high-tension electricity line for commercial complex constructed by promoter, SBPL. It will also be open to the JDA to take appropriate action in accordance with law as per the findings given relation to Issue No.15. For the reasons stated in another two writ petitions filed by Sushil Kumar Mishra and Dinesh Yadav and others also disposed off. There shall be no order as to cost, the division bench said. The division bench has heard bunch of the petitions filed by Sushil Kumar Mishra, Dinesh Yadav and Others, Ravindra Kumar Shrivastava, Sushil Kumar Mishra, Ajit Samdariya Director, M/S Samdariya Builders Private Limited, Bank Of Baroda, Sushil Kumar Mishra and Manish Kothari, separately filed. These matters have a chequered history. The parties have fought a long drawn battle in the corridors of the Court and the statutory authorities.

The petitioner M/S. Samdariya Builders Pvt. Ltd (SBPL) is aggrieved by the decision of Jabalpur Development Authority and Government in cancelling the lease deed dated on May 30, 2008 and issuing certain consequential directions and orders whereas Bank of Baroda is aggrieved by impugned orders because of which Jabalpur Development Authority (JDA) has cancelled the permission to mortgage the property as a surety to the Bank against the loan taken by SBPL. The tenants installed by SBPL are aggrieved because before taking an adverse action/decision, they have not been heard. The petitioner of Public Interest Litigation (PIL) is also partially dissatisfied by impugned orders to the extent certain relief claimed by him were not granted.

In view of rival contentions of parties, broadly following issues emerge for our consideration:

 

Issue No.1: Whether lease deed dated on May 30, 2008 executed by JDA in favour of the present petitioner is illegal and runs contrary to tender document, promoter agreement dated on May 1, 2006 and other statutory provisions ?
Issue No. 2: Whether M/s Samadariya Builders has given shops of commercial complex on rent in violation of conditions of promoter agreement dated on May 1, 2006 ?
Issue No. 3 : Whether construction of G+7 floors was improper/illegal ?
Issue No. 4 : Whether petitioner violated reservation policy of the Govt. in the matter of allotment of shops ?
Issue No. 5 : Whether allotment of additional land ad measuring 6240 sq. ft. was improper/illegal ?
Issue No. 6 : Whether waiver of interest amount of 25 per cent i.e. Rs.10,37,134 by JDA was improper which resulted into financial loss to the JDA ?
Issue No. 7 : Whether the land in question was a "Nazul Land" received by JDA free of cost and therefore before allotment of said land, permission from the State Government was required to be taken in view of provisions of Vyayan Niyam?
Issue No. 8 : Whether JDA is liable for payment of loan dues outstanding against SBPL to the Bank ?
Issue No. 9 : Whether cancellation of lease and withdrawal of consent to mortgage the property by the JDA is illegal and whether JDA was bound by the principle of estoppels ?
Issue No. 10 : Whether a declaration that additional allotment of area of 1399 sq. ft. to promoter/SBPL needs to be declared as illegal and wrongly occupied by petitioner.
Issue No. 11: Whether for construction and installation of high tension 33 KV electricity line and consequential recovery, any directions are required to be issued ?
Issue No. 12 : Whether State and JDA are required to be directed to impose ground rent on SBPL @ 6.5 per cent + 10 per cent ?
Issue No. 13: Whether any direction to demolish three additional floors of shopping complex needs to be issued ?
Issue No. 14: Whether any direction to Lokayukta is required to be given for including the findings given in the report dated on January 20, 2016 and June 19, 2017 in the criminal investigation with any further appropriate direction ?
Issue No. 15: Whether any direction to JDA/State is required to be given to change the name of the shopping complex ?
Issue No. 16: Whether the action of the official respondents in issuing the impugned orders without giving opportunity of hearing to the tenants/leasees is bad in law/illegal?