1. The issue involved in these writ petitions is common, hence, with the consent of the counsel for the parties arguments have been heard together and both these writ petitions are decided by the present common order.
2. For the sake of convenience, the facts and the prayer mentioned in the SB Civil Writ Petition No.7306/2022 are taken into consideration. The instant petition has been filed by the petitioner with the following prayer:
“In view of the above, it is respectfully prayed that the Hon’ble High Court by way of appropriate writ, order or direction be pleased to grant the following reliefs to the Petitioner:-
i. To allow the present Writ Petition;
ii. To quash and set aside the Impugned Judgment dated 03.03.2022 in its entirety passed by the Ld. JDA Appellate Tribunal, Jaipur in Appeal No.365 of 2018 titled as Axis Trustee Services Ltd. vs 0State of Rajasthan & Ors.;
iii. To allow the Appeal No. 365 of 2018 titled as Axis Trustee Services Ltd. vs State of Rajasthan & Ors. filed by the Appellant before the Learned JDA Appellate Tribunal Below as prayed therein and to quash and set aside the impugned order dated 23.08.2017 cancelling the allotment letter dated 09.08.2007 and the lease deed dated 16.09.2009 issued by Jaipur Development Authority;
iv. To hold and to declare that SARFAESI Act, 2002 will override the provisions of the Jaipur Development Authority Act, 1982 to the extent of inconsistency;
v. To hold and to declare that the Petitioner as well as the banks and financial institutions have a right under SARFAESI Act, 2002 as a secured creditor to take physical possession of the subject property namely “40 acres of land out of 188.08 bigha land in Khasra No. 165 and 505 area of 188.08 bigha land in village Jamdoli, Jaipur” and to sell the same under section 13(4) of the SARFAESI Act, 2002 for recovery of their dues which as of now are more than Rs.600 Cr.
vi. Any just and proper order which the Hon’ble court may deem fit may please be granted in favour of the Petitioner.”
RIVAL SUBMISSIONS:
3. Learned counsel for the petitioners submit that the land in question was allotted by the Jaipur Development Authority (for short ‘JDA’) to M/s Neesa Leisure Limited (for short “NLL”) on certain terms and conditions for construction of Golf Course and Golf Academy, for which a lease deed was also executed in between the petitioner-NLL and the JDA. Subsequently, a clarification was made by the JDA and thereafter, the NLL was allowed to raise construction of Golf Course-9 Hole, Golf Academy with audio video classroom, two driving ranges with 24 hilling stations, mini Golf for children, virtual Golf, Golf Cottages, conference halls, indoor and outdoor banquets, Billiard room, indoor sports facilities, outdoor sport facilities, night Golfing facilities, pro-shop, Swimming pool, Spa, Gymnasium, business lounge and Coffee Shop. For raising construction of all these facilities, the petitioner-NLL applied for loan of Rs.175 Crore from different Banks and financial institutions i.e. 1. Asset Care and Reconstruction Enterprise Ltd. (Assignee of Axis Bank Ltd.), 2. Bank of India, 3. Corporation Bank, 4. Oriental Bank of Commerce, 5. Edelweiss Asset Reconstruction Company Ltd., 6. Edelweiss Asset Reconstruction Company Ltd., 7.SIDBI, Navjeewan Amrit Jayanti Bhawan, Ahmedabad, 8. Syndicate Bank and thereafter, the loan of the aforesaid amount was advanced to the petitioner-NLL. Counsel submits that the construction raised as per the terms and conditions of the allotment order and the lease deed but all of a sudden, allotment of the petitioner-NLL was cancelled by the JDA vide impugned order dated 23.08.2017 indicating therein that there were certain violations of the terms and conditions and a 5-Star hotel, villas, etc. were constructed over the land allotted to the petitioner-NLL. Counsel submits that a registered lease deed cannot be cancelled by the JDA. It is only the competent Civil Court who can cancel the registered lease deed, in case any suit in this regard is filed by the aggrieved person. Counsel submits that under these circumstances, both the petitioners approached Appellate Tribunal, JDA against the said cancellation order by way of filing two different appeals. Counsel submits that going beyond the subject matter involved in the appeals, the Appellate Tribunal rejected both the appeals observing therein that the constructions were done by the petitioner-NLL in violation of the terms and conditions of the allotment order and the financial institutions/Banks have also not seen the terms and conditions of the allotment order, before advancing the loan to the petitioner-NLL. Counsel submits that the order dated 03.03.2022 passed by the Appellate Tribunal is not sustainable in the eye of law. Counsel submits that without any basis an allegation was levelled against the petitioner-NLL that a 5-Star hotel and villas were constructed over the land in question. Counsel submits that even the Ministry of Tourism, Government of India granted permission to the petitioner-NLL to develop the land by way of providing 5-Star facilities in the premises of Golf Course and Golf Academy. Counsel submits that under these circumstances, interference of this Court is warranted. In support of their contentions, counsels have place reliance upon the following judgments:
"(a) Punjab National Ban vs. Union of India and Others reported in 2022 (7) SCC 260 [LQ/SC/2022/256 ;] .
(b) M/s Boutique Hotels (India) Pvt. Ltd. vs. State of Rajasthan and Ors (SB Civil Writ Petition No.11662/2018).
(c) Chand Mal and Co. vs. Municipal Board, Kishangarh reported in 2007 (2) DNJ 693.
(d) Ramchandra Vs. The District Collector, Hanumangarh and Ors. (S.B. Civil Writ Petition No.5648/2004).
(e) Gulam Jilanee vs. Director of Local Self Government Department and Ors. (SB Civil Writ Petition No.7258/2016).
(f) Deep Darshan Grah Nirman Sahakari Samiti vs. State of Rajasthan and Anr. (SB Civil Writ Petition No.1248/2011).
(g) Kamla Devi vs. State of Rajasthan and Ors. (SB Civil Writ Petition No.11329/2018)."
4. Counsel for the petitioner – Axis Trustee Services Ltd. further submitted that a huge loan of Rs.175 Crores has been advanced to NLL which is a public money and the petitioner would not be able to recover the said amount from NLL unless and until the allotment is restored as the same allotted land in question was mortgaged with the petitioner. Counsel submits that under these circumstances, interference of this Court is warranted.
5. Per contra, learned counsel for the respondents opposed the arguments raised by the counsel for the petitioner and submitted that the land in question was allotted to NLL on certain terms and conditions for developing construction of Golf Course and Golf Academy only. Counsel submits that while issuing the allotment order and executing the lease deed, a specific term and condition was mentioned that the allotted land would not be allowed to be mortgaged without prior approval from the authority, but without seeking any such approval, the said land was mortgaged by NLL with the petitioner – Axis Trustee Services Ltd. Counsel submits that in an inquiry it was found that the petitioner-NLL has raised not only construction of a 5-Star Hotel but also constructed several villas and sold the same to the private individuals. Counsel submits that taking serious note of the aforesaid aspect of the matter, the allotment was rightly cancelled by the JDA. Counsel submits that even lease deeds were executed by the petitioner- NLL in favour of private individuals at the time of selling of the villas to them. Counsel submits that under these circumstances, no illegality has been caused by the JDA in cancellation of the allotment as well as the lease deed issued in favour of the petitioner-NLL. Counsel submits that the Appellate Tribunal has passed a reasoned and cogent order which does not require interference of this Court.
ANALYSIS, DISCUSSIONS & REASONING:
6. Heard and considered the submissions made at the Bar and perused the material available on the record.
7. The State Government agreed to allot 40 acres of land at village Jamdoli–Jaipur–Agra Highway to NLL at the prevailing DLC rates for establishing Golf Course and Golf Academy in Jaipur, on the following two conditions:-
"(a) That the Company would make a minimum investment of Rs.60 crores, within three years from the date of allotment of land.
(b) That the Government land allotted for the project would not be used for any purposes other than the purpose for which it is allotted i.e. for establishing Golf Academy."
8. The communication was made in this regard on 23.11.2006 by the Commissioner (Investigation & NRIs), Bureau of Investment Promotion, Rajasthan (for short “the Commissioner”).
9. Thereafter, the NLL wrote a letter to the Commissioner seeking clarification regarding facilities to be constructed and vide letter dated 12.12.2006, the NLL was allowed to raise construction of the following facilities:-
"a) Golf Course – 9 hole
b) Golf Academy with audio-visual classroom
c) Two Driving ranges with 24 hilling stations
d) Mini Golf for children
e) Virtual Golf
f) Golf cottages
g) Conference halls, indoor and outdoor banquets
h) Billiard room
i) Indoor sports facilities
j) Outdoor sport facility
k) Night-golfing facilities
l) Pro Shop
m) Swimming Pool
n) Spa
o) Gymnasium
p) Business Lounge
q) Coffee Shop"
10. In the meantime, a lease deed was executed by JDA in favour of NLL on 16.09.2006 with the following terms and conditions:-
“1. Above plot of land has been allotted to the allottee on basis of leasehold. Period of lease will be valid for 99 years.
2. Firm cannot give the allotted land and the building constructed thereon later to anybody on sublease permanently / temporarily. In case of subletting / subleasing, allotment shall stand cancelled of its own and plot of land will be taken back and any compensation will not be paid.
3. Lessee shall deposit the amount of Rs.1,33,53,120/- (Rupees one crore thirty three lakhs fifty three thousand one hundred and twenty onlly) as Lease Money in respect of the above plot of land on first day of month April every year in the office of Jaipur Development Authority or at such other place as may be fixed by the Government from time to time. For the first five year of till the completion of construction of building (whichever is earlier), lease money shall be payable at half rate. In case lease money is not deposited by the fixed date, then interest will be charged at the rate prevailing at that point of time on the outstanding amount.
4. Immediately after expiry of 15 years period, gradual increment of 25 percent will be made in the determined amount of the Urban Jamabandi.
5. On not paying any amount or conversion amount or any portion of it which is reasonable due to urban Jamabandi by the above date, J.D.A. will recover such amount or its part from that date, which has been directed for recovery of it as arrears of land revenue at that point of time and shall be competent to recover it.
6. Above plot of land will be used for achieving the objectives of the firm i.e. in constructing any building or buildings in order to set up Golf Course and Golf Academy. Purpose for which land has been allotted to the firm, land and building will be used for that purpose only.
7. By commencing the construction work on the plot of land within the period of two years, it shall have to be completed, otherwise, amount deposited against the plot of land will be refunded without interest and plot of land will be seized in its present condition.
8. Any building which will be got constructed by the Lessee/ Allottee on the plot of land, it will carried out according to the approval made before commencement of work by the Officer authorised by the Jaipur Development Authority and according to the sanctioned site plans.
9. Allottee firm shall pay all those general, special and local tax/ rates/ exclusive/ cost directly to the competent Officer, which will be imposed or levied in respect of above plot of land or any part of it and any building or buildings constructed on it or outhouses or fencing and other constructions and are payable.
10. Since the above plot of land has been allotted subject to the special conditions, therefore, apart from mortgaging the above plot of land with State Government for obtaining loan or from other recognized Financial Institutions for authorised use of the plot of the land, it could not be transferred for any other kind of mortgage/ pledge/ rent etc. and allotted land shall not be subject to any kind of restriction before and after construction of the building without the approval of the Allotment Authority. After its transfer into the occupation of the firm of the objectives for which firm was incorporated, after achieving those objectives, if firm is dissolved, above property shall be deemed to be vested in Jaipur Development Authority / State Government automatically and any compensation for it will not be given.
11. Firm shall have to comply with the directions issued by the State Government from time to time and shall have to make the payment of taxes etc.
12. Lessee/ Allottee shall fully comply with the conditions of the Allotment Letter and all the above conditions of Lease. If any of the condition or conditions are violated, then above plot of land the building constructed thereon, if any, will be acquired without paying any compensation amount.
13. If any portion of the land allotted to the firm will be required for any kind of development work at any point of time later by the State Government or Allotting Agency, then State Government or Allotting Agency Authority shall be at liberty to take back that portion of the land at the rate of allotment. If any construction work or any other development work will be carried out on the above plot of land, then compensation shall be payable for it separately.
14. For the purposes of Golf Course and Golf Academy, allottee firm shall have to comply with the directions etc. hereby issued by the State Government from time to time in Golf Course and Golf Academy being run on the allotted plot of land.
15. In the interest of the State and special circumstances, State Government/ Local Body/ District Magistrate could be able to use the above allotted land and the building constructed thereon for temporary basis, for which any compensation shall not be payable.”
11. It appears that NLL submitted an application before the Ministry of Tourism, Government of India to get approval of the hotel project in the name and style “Cambay Golf & ….. Property” and the Department of Tourism, Government of India granted approval to NLL for setting up of 5-Star Category Hotel project on the land in question vide letter dated 23.09.2008 (Annx.P/13).
12. The petitioner-NLL took joint loan of Rs.175,00,00,000/- (Rs.One Hundred Seventy Five Crores Only) from different banks and financial institutions namely Axis Bank Ltd., Bank of India, Corporation Bank, L&T Infrastructure Finance Co.Ltd., Oriental Bank of Commerce, Punjab National Bank through Axis Trustee Services Ltd. (the petitioner) for the purpose to develop, manage and operate 5 (five) new Hotels at various locations in Gujarat and Rajasthan including a Hotel-cum-Golf Resort at Jamdoli, Jaipur. The petitioner-NLL mortgaged the allotted land in question with the petitioner group of Banks in lieu of the borrowed amount.
13. The JDA conducted an enquiry and it was found that the petitioner has violated the terms and conditions of the allotment order so also the lease deed and it was also found that the petitioner-NLL utilized the allotted land for hotel purpose. A show cause notice was given to it. Then the petitioner-NLL submitted its reply and stated therein that the land is being used for marriage ceremonies. The JDA did not find the reply of NLL as satisfactory. Hence, the allotment was cancelled vide order dated 23.08.2017.
14. Being aggrieved by the allotment cancellation order 23.08.2017, both the petitioners submitted two different appeals before the Appellate Tribunal, Jaipur Development Authority, Jaipur (hereinafter shall be referred to as “the Appellate Authority”) who rejected the same by a common order dated 03.03.2022 granting liberty to the petitioner Axis Trustee Services Ltd. to initiate the recovery moratorium proceedings against NLL before the competent Court of law.
15. Aggrieved by the impugned orders dated 23.08.2017 and 03.03.2022, both the petitioners have approached this Court by way of filing these writ petitions.
16. A perusal of the allotment order and lease deed indicates that 40 acres of land was allotted to the petitioner-NLL for the purpose of establishing Golf Course and Golf Academy and it was made clear in black and white words that the land is allotted by the government for the above purpose and project and the same would not be used for any other purpose, other than the purpose for which it was allotted. The petitioner-NLL was allowed to construct the following facilities like Golf Course – 9 hole, Golf Academy with audio-visual classroom, two Driving ranges with 24 hilling stations, mini Golf for children, Conference halls, indoor and outdoor banquets, billiard room, indoor and outdoor sports facilities, night golfing facility, Pro-Shop, Swimming Pool, Spa, Gymnasium, Business Lounge and Coffee Shop. The petitioner-NLL was not allowed to raise any other construction whatsoever.
17. As per the condition No.2 of the lease deed, the petitioner- NLL was not allowed to give the allotted land and the building, constructed thereon, to anybody on sublease permanently or temporarily. It was made clear in that condition itself that in case of subletting/subleasing, the allotment shall stand cancelled of its own and the plot of land would be taken back. Similarly, as per condition No.10 of the lease deed, the allotted land could not be transferred for any other kind of the mortgage/pledge/rent etc. without approval of the allotment authority. The petitioner-NLL accepted the said allotment, after reading the terms and conditions from its naked eyes and proceeded further to raise constructions. Hence, the petitioner-NLL is estopped and bound by these terms and conditions. But the petitioner-NLL not only violated the terms and conditions of the allotment order and lease deed but also raised construction of 5-Star Hotel and Golf Studio, etc. after mortgaging the land in question to the petitioner-Axis Trustee Services Ltd. without approval of the allotment authority and further sold the said Golf Studio to the private individuals by executing lease deed thereof. A sample copy of the lease deed, executed in favour of Miss Padmini Malhotra, has been placed on the record by the respondents. The aforesaid act of the petitioner- NLL clearly indicates that the terms and conditions of the allotment order and lease deed were intentionally and deliberately flouted by the petitioner-NLL.
18. This Court finds no force in the arguments raised by counsel for the petitioners that the registered lease deed can only be cancelled by the competent Civil Court and the concerned authority has no power to cancel the same because the condition No.2 of the allotment order is clear and specific that the allotted land cannot be given to anybody on sublease either permanently or temporarily and in case of subletting/subleasing, the allotment shall be cancelled of its own and the plot of land would be taken back and compensation would not be paid and as per the condition No.10, the allotted land could not be transferred for any kind of mortgage/pledge/rent, etc. But here in the instant case, the allotted land was not only mortgaged by the petitioner-NLL to the creditor Banks and Financial Institutions for the purpose of taking loan of Rs.175 Crores but the land has also been further transferred to other persons, by way of construction of Golf Studio apartments and in this regard lease deeds have also been executed by the petitioner-NLL in the name of such persons. The Division Bench of this Court has held in the cases of (i) Khusal Singh Vs. State of Rajasthan & Ors. reported in 2022 Supreme (Raj.) 1967 [D.B.Speal Appeal Writ No.175/2020 decided on 03.03.2022; (ii) Issack Khan Vs. State of Rajasthan & Ors. reported in 2019(2) DNJ 571 (SAW No.918/2017 decided on 23.10.2018); (iii) Jhumar Ram Vs. Addl. District Collector (Second), Jodhpur [D.B.Special Appeal Writ No.656/2017]; and (iv) Kamla Devi Vs. State of Rajasthan & Ors. [D.B.Special Appeal Writ No.136/2017] that the registered patta can be cancelled by the authority in case there is violation of the terms of the patta or the patta itself has been issued illegally.
19. In the case of Issack Khan (supra), the Division Bench of this Court at the Principal Seat at Jodhpur has held in paragraph 18, as under:-
“18. Lastly, coming to the effect of registration of the patta issued by the Gram Panchayat, suffice it to say that the registration of the document by itself does not confer any title over the property and thus, if the patta on the strength of which appellant was claiming right over the disputed land, is found to be illegal and void, the State Government exercising revisional power under Section 97 of the Act, was well within its jurisdiction in annulling the decision of the Gram Panchayat in pursuance whereof the appellant was claiming right over the disputed property.”
20. Similarly, in the case of Khusal Singh (supra), the Division Bench of this Court at the Principal Seat at Jodhpur has held in paragraphs 7 and 8, as under:-
“7. The third ground raised by counsel for the appellant is that the registered sale cannot be cancelled by revisional authority. Counsel for the appellant has relied upon a judgment reported as 2015(2) RRT 967 (Manohar Lal Vs. District Collector, Barmer & Ors.).
8. So far as the judgment passed in Manohar Lal (supra) on which counsel for the appellant has relied upon is concerned, as observed by the learned Single Judge, the same had specifically been considered by the Division Bench in the cases of Jhumar Ram vs. Addl. District Collector (Second), Jodhpur (D.B. Special Appeal Writ No.656/2017) and Kamla Devi vs. State of Rajasthan & Ors. (D.B. Special Appeal Writ No.136/2017) and it has been held that the patta issued by Gram Panchayat in contravention to the Rules of 1996 can be quashed in exercise of powers under Section 97 of the Act of 1994.”
21. In view of the discussions made above and after following the observations made by the Division Bench of this Court at the Principal Seat at Jodhpur in the above cases, this Court is of the firm view that the terms and conditions of the allotment order/lease deed were flouted and breached by the petitioner-NLL and therefore, the respondents have not caused any illegality in cancelling the patta/lease deed. The judgments relied upon by the petitioners are not applicable in the present case because the above judgments of five different Benches were not brought into notice of the coordinate Benches of this Court.
CONCLUSION:
22. Considering the overall facts and circumstances of the case and after taking into account the violation of the terms and conditions of the allotment order/lease deed, the Appellate Tribunal, Jaipur Development Authority, has rejected the appeals filed by the petitioners vide common order dated 03.03.2022 and upheld the allotment cancellation order dated 23.08.2017. A just and cogent reasoned order has been passed by the Appellate Tribunal, Jaipur Development Authority and the same requires no interference of this Court. Both the writ petitions are found to be devoid of merits and hence, the same are rejected.
23. The stay applications and all the applications (pending, if any) also stand disposed of.
24. The parties are left free to bear their own costs.
