1. Heard Sri S.K. Chaubey, learned counsel for the petitioner; Ms. Uttara Bahuguna, learned Additional Chief Standing Counsel for the State respondent no.1 and Sri M.C. Chaturvedi, learned Senior Advocate assisted by Shri Akhilesh Kumar Sharma, learned counsel for Yamuna Expressway Industrial Development Authority (respondent no.2).

2. By means of present writ petition, the petitioner has sought following reliefs:-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 17.3.2023 passes by respondent no.2 (Annexure No.14 to the writ petition).

ii) issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to provide the benefit of the OTS Scheme to the petitioner permitting the petitioner to deposit the entire outstanding dues as per OTS scheme in the interest of justice."

3. It appears from the record that Yamuna Expressway Industrial Development Authority (in short, YEIDA) advertised Residential Plot Scheme 2009 (1) on 02.03.2009 @ 4750/- per sqm. with last date for submission of application as 04.05.2009 and date of proposed draw as 10.08.2009. The petitioner also applied under the aforesaid scheme and deposited the registration money of Rs.3 lacs on 04.09.2009. Finally, the petitioner had been allotted a plot no.262 in Pocket-B, Sector-20, YEIDA, District Gautam Buddh Nagar vide AllotmentCum-Allocation Letter dated 20.10.2009 and as per payment plan-1, she was required to deposit the allotment money of Rs.42,60,000/- (after adjusting registration money already paid) on or before 19.12.2009 and the remaining amount was to be paid in 16 half yearly instalments beginning from 19.06.2010 to 19.12.2017. The petitioner had moved a representation before the respondent no.2 on 18.06.2010 stating therein that the land of the petitioner had been acquired by the State Government for construction of "Eastern Peripheral Expressway" in the year 2008 but the compensation of the land had not been paid to her. She could not deposit the allotment money on time and sought permission to deposit late payment of allotment money alongwith penal interest as per Clause 6B (Extension of Time for making payment) of the brochure containing terms and conditions for allotment of residential plots. Once the respondent authority was not inclined to accept the payment then the petitioner approached this Court by preferring Writ C No.71060 of 2011 (Shruti Gupta vs. State of UP and another) with prayer to issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to consider the representations of the petitioner submitted on 09.12.2009 and 28.04.2011 alongwith affidavit for condoning the delay in depositing the balance installments in respect of her plot no.B-262, area 2000 sq. meter, Pocket 'B' Sector-20, Greater Noida, District Gautam Buddha Nagar, alongwith interest/penal interest payable thereon. A Division Bench vide order dated 14.12.2011 had proceeded to dispose of the writ petition with following observations:-

"Heard learned counsel for the petitioner and Sri Suresh Singh appearing for respondent No.2.

Only prayer pressed by the petitioner in the writ petition is that respondents be directed to consider the petitioner's application dated 3rd May, 2011 (Annexure-6 to the writ petition) submitted to the Chief Executive Officer for permitting him to deposit the entire outstanding amount along with late fee and interest thereon.

Learned counsel for the petitioner in support of the writ petition has relied on the Division Bench judgment of this Court in Writ Petition No.64915 of 2010 (Dahyalal Bhimji Joshi vs. State of U.P. and another) decided on 29th October, 2010, copy of which has been filed at page 51 and 52 of the writ petition. It is further submitted that allotment of the plot of the petitioner has not yet been cancelled.

Sri Suresh Singh submits that Chief Executive Officer being authority competent to consider the said application under Clause 6-B, he may be directed to take appropriate action in accordance with law.

In view of the aforesaid, no useful purpose would be served in keeping the writ petition pending. The writ petition is disposed of directing respondent No.2 to consider the application of the petitioner and take appropriate decision in accordance with law expeditiously."

4. In compliance of the aforesaid order, the respondent no.2 vide order dated 10.04.2012 had considered and rejected the representations of the petitioner dated 09.12.2009 and 28.04.2011. Meanwhile, the respondent no.2 published a public notice on 07.09.2022 informing that the YEIDA had again floated One time Settlement Scheme from 01.09.2022 to 31.10.2022. It is claimed that the petitioner could not pay the due amount in time and she is ready and willing to pay the dues as per Scheme dated 07.09.2022. Once the YEIDA did not consider the request of the petitioner then she had filed the second Writ C No.36305 of 2022 (Shruti Gupta vs. State of UP and another), which was disposed of by this Court on 13.12.2022 with following observations:-

"The petitioner was allottee of a plot measuring 2000 sq. meters by Yamuna Expressway Industrial Development Authority pursuant to allotment letter dated 20.10.2009. There was default in payment of instalment. The application of the petitioner for extension of time to deposit the remaining instalments was rejected by an order dated 10.4.2012. The case of the petitioner is that although the application for extension of time was rejected but the Authority did not pass any order cancelling the allotment. The petitioner, therefore seeks benefit of OTS scheme which is presently in vogue.

Sri A.B. Singhal, learned counsel appearing on behalf of respondent No.2 states that respondent No.2 will examine the issue as to whether there is any formal cancellation of allotment or not and what would be the effect of the petitioner not depositing the instalments and whether he is entitled to avail benefit of the OTS scheme.

Having regard to the submissions made, we dispose of the instant petition with liberty to the petitioner to file fresh application for availing the benefit under OTS scheme as notified in the newspaper dated 7.9.2022 and in such event, the respondent Authority will examine the above issues and take decision in accordance with law."

5. In compliance of the aforesaid order, the petitioner has filed representations dated 17.1.2023 and 01.3.2023 seeking benefit of the OTS Scheme. Finally, by the impugned order dated 17.3.2023 the respondent no.2 has rejected the representation of the petitioner on the ground that since the allotment of the petitioner has been automatically cancelled, therefore, the Scheme of OTS cannot be extended to the petitioner.

6. Learned counsel for the petitioner submits that the petitioner was allotted the land in question by the respondent authority on 20.10.2009. There was default in payment of instalments. The application of the petitioner for extension of time to deposit the remaining instalments was rejected by the respondent authority vide order dated 10.4.2012. It is submitted that although the application for extension of time was rejected but till date the respondent authority did not pass any order cancelling the allotment of the petitioner and therefore, the petitioner is entitled to be given the benefit of the OTS Scheme.

7. On the other hand, Sri M.C. Chaturvedi, learned Senior Advocate appearing for respondent no.2 has vehemently opposed the writ petition on the ground that the authority had advertised residential Scheme in question. The petitioner was allotted plot no.262 in Pocket B of Sector 20 vide allotment letter dated 20.10.2009 and as per allotment letter, the allotment money of Rs.42,60,000/- (after adjustment of the registration money already paid) was to be paid on or before 19.12.2009. The allotment letter also provided the payment schedule with respect to 16 half yearly installments. The first of which was payable on or before 19.6.2010. The petitioner did not deposit the allotment money on or before the due date. She also did not deposit any of the subsequent installments, although the last date for deposit of the allotment money in respect of plot in question was extended upto 19.2.2010. In this regard the notice was also published in daily newspapers “Dainik Jagaran” and “Amar Ujala” on 13.12.2009 wherein the allottees in general were informed that beyond the said extended date no further time would be granted and in the event the allotment money was not deposited by the said date, the allotment would be considered as cancelled for which the allottee himself would be responsible. Admittedly, the petitioner had not deposited the due amount in terms of the allotment letter. Consequently, the allotment has been cancelled by the Chief Executive Office vide order dated 10.04.2012 and the cancellation order has not been challenged till date and for all practical purpose the same has attained finality and the writ petition is liable to be dismissed.

8. Heard rival submissions and perused the record.

9. We find that in response to the advertisement the petitioner applied under the scheme in the year 2009. The YEIDA had allotted Plot No.B-262 area 2000 sq. meters, in Pocket ‘B’, Sector-20, Greater Noida, District Gautam Buddha Nagar in favour of the petitioner vide allotment letter dated 20.10.2009. In order to appreciate the controversy in hand, the allotment-cum-allocation letter dated 20.10.2009 alongwith payment schedule is reproduced hereinunder:-

“YAMUNA EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY A-1, First Floor, Commercial Complex, F-Block, SectorBeta-II, GREATER NOIDA, District Gautambuddh Nagar-201308.

REGISTERED.

Letter No.YEA/2009 (1)/193/Prab-

Dated 20/10/2009.

ALLOTMENT-CUM-ALLOCATION LETTER.

Scheme Code: YEA2009(1).

Form Serial No.32189.

Size of plot : 2000 Sqm.

Payment Plan : 01.

To,

SHRUTI GUPTA

Axis Bank Ltd.4//6B Asaf Ali Road Daryaganj Delhi.

Pin Code: 110002.

Dear Sir/Madam,

The Authority had advertised residential Scheme namely 2009 (1) on 02.03.2009 @ 4750/- per Sqm. We are pleased to inform you that you have been allotted plot number 262 in Pocket B of Sector 20.

Your Allotment Number is : YEA000194.

Amount deposited as Registration Money : Rs.300000.00.

Allotment Money.

In Payment Plan-1 – allotment money (after adjusting registration money already paid) payable : Rs.4260000.00.

on or before 19-Dec-2009.

The installments shall be payable on or before the due date as mentioned in Payment Scheduled on the next pate of this allotment letter.

The allotment money and the installments can be deposited in Oriental Bank of Commerce, SH-12, Gamma Shopping Centre, Gamma-I, Greater Noida through a Bank Draft/Pay Order drawn in favour of YAMUNA EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY payable at NOIDA/Greater NOIDA or any other means.

If Payment is made by Bank draft, allottee must write the name & unique allotment no. on the back side of the draft.

PERIOD OF LEASE AND LEASE RENT.

1. The plot is on lease for a period of 90 years. The lease rent shall be payable in lump sum at the rate of 10% of the total cost of the plot before possession.

2. Stamp Charges, registration charges and all other expenses payable on the execution of the lease deed document shall be borne by the allottee.

POSSESSION.

The Possessin of the allotted plot in case of Payment Plan-I, Payment Plan-2 or opting for cash down option, will be handed over only after deposition of 75% of the total premium of the allotted plot or after 04 years from the date of issue of this letter, whichever is later.

Yours sincerely.

Sd/-

Manager (Property).

Note:-

If, at the time of lease deed it is found that the actual dimensions of the plot vary, the total cost of the plot also vary and the increased cost shall be borne by the allottee proportionately. Consequently, the amount of stamp paper, lease rent and registration charges will increase/decrease accordingly.

The terms & conditions of the brochure of the Scheme 2009 (1) shall form part of this allotment and shall be binding on the allottees.

PAYMENT SCHEDULE.

Payment Plan-1.	Principal Amt.	Interest Amt.	Due Amt.	Due Date.
Pay Type.
Allotment money.	Rs.42,60,000.00.	Rs.0.00.	Rs.4260000.00.	19 Dec-2009.
Instalment-1.	Rs.296937.50.	Rs.285060.00.	Rs.581997.50.	19 Jun-2010.
Instalment-2.	Rs.296937.50.	Rs.267243.75.	Rs.564181.25.	19 Dec-2010.
Instalment-3.	Rs.296937.50.	Rs.249427.50.	Rs.546365.00.	19 Jun-2011.
Instalment-5.	Rs.296937.50.	Rs.213795.00.	Rs.510832/50.	19 Jun-2012.
Instalment-6.	Rs.296937.50.	Rs.195978.75.	Rs. 492916.25.	19 Dec-2012.
Instalment-7.	Rs.296937.50.	Rs.178162.50.	Rs. 475100.00.	19 Jun-2013.
Instalment-8.	Rs.296937.50.	Rs.160346.25.	Rs.457283.75.	19 Dec-2013.
Instalment-9.	Rs.296937.50.	Rs.142530.00.	Rs.439467.50.	19 Jun-2014.
Instalment-10.	Rs.296937.50.	Rs.124713.75.	Rs.421651.25.	19 Dec-2014.
Instalment-11.	Rs.296937.50.	Rs.106897.50.	Rs.403835.00.	19 Jun-2015.
Instalment-12.	Rs.296937.50.	Rs. 89081.25.	Rs.386018.75.	19 Dec-2015.
Instalment-13.	Rs.296937.50.	Rs. 71265.00.	Rs.368202.50.	19 Jun-2016.
Instalment-14.	Rs.296937.50.	Rs. 53448.75.	Rs.350386.25.	19 Dec-2016.
Instalment-15.	Rs.296937.50.	Rs. 35632.50.	Rs.332570.00.	19 Jun-2017.
Instalment-16.	Rs.296937.50.	Rs. 16715,25.	Rs.314753.75.	19 Dec-2017.

The above installments include Rs.1,000/- as one time web based portal charges.

Allottee may also check their Allotment Details on our Internet Website by accessible the URL: http://yamunaexpresswayauthrotiy.com/2009-1 and registering for the service using the following Username/Password Login combination. System will be available from Jan-15-2010.

Username: YEA000194.

Password: SHR32189.

After registering for the first time, you will be asked to change your password for the future use.”

10. In terms of the aforesaid allotment letter, the petitioner was required to pay the allotment money of Rs.42,60,000/- after adjusting registration money already paid on or before 19th December, 2009. The remaining amount was payable in 16 half yearly instalments on or before the due date as mentioned in payment schedule and the first instalment was payable on or before 19.6.2010. Clause 6 (b) of the brochure of the Scheme provides for extension of time to make payment subject to payment of interest with further rider that the applicant has to express willingness to pay the amount alongwith interest. In the present matter, it is undisputed that in terms of the allotment letter, the petitioner did not deposit the requisite amount on or before the due date. It is also claimed that the petitioner moved detailed representations on 09.12.2009 and 28.04.2011, wherein she had taken a plea that the requisite amount could not be deposited by her on account of non-receipt of land compensation by her father. Once the YEIDA had not taken any decision on the said representations then she filed Writ C No.71060 of 2011, wherein she had pleaded to issue direction to the respondents to consider her application dated 03.05.2011, which was submitted to the Chief Executive Officer for permitting her to deposit the entire outstanding amount alognwith late fee and interest thereon. In the said proceeding, as the respondent counsel had submitted that the Chief Executive Officer was competent to process such an application in terms of Clause 6-B of the brochure and accordingly, the writ petition was disposed of by this Court on 14.12.2011 directing the respondent no.2 to consider the application of the petitioner and take appropriate decision in accordance with law expeditiously. In response to the said direction the Chief Executive Officer vide an order dated 10.04.2012 had rejected the petitioner’s representation with detailed observations. The relevant portion of the order is reproduced herein under:-

"11. From the facts noted above, it is clear that the default in making payment of the allotment money is undisputed. By not depositing the allotment money within time, the terms on which the allotment has been offered had stood breached. In the absence of the depositing of the allotment money, the allotment could never crystalise.

12. It is not accepted that granting extension is mandatory. It is an enabling power to be exercised in appropriate cases. The issue of extension of time will arise only if a request is made, prior to the expiry of the due date. Such a request when made timely exhibits bonafide on the part of the allottee. Under the terms of the Brochure, it is only in exceptional circumstances that extension of time can be granted. The reason advanced by the representationist for not depositing the allotment money is vague and is also not supported by any document, hence not worthy of any credence. The representation is liable to be rejected.

13. In view of the above discussion, the representations dated 09.12.2009 and 28.04.2011 are devoid of any merit and are accordingly rejected. The representationist may be informed accordingly, With the aforesaid, the order dated 14.12.2011 passed by the Hon'ble High Court in Writ Petition No.71060 of 2011 stands complied with. Let a copy of the order be sent to the representationist at the address indicated in the writ petition."

11. While pressing the aforementioned writ petition the petitioner had pressed for considering her application dated 03.05.2011, which was moved to the Chief Executive Officer for permitting her to deposit the entire outstanding amount alongwith late fee and interest thereon, but admittedly no amount was deposited. Finally, the claim of the petitioner was rejected vide order dated 10.04.2012, and the same was adequately informed to the petitioner but the same was not challenged before the competent court. While rejecting the claim of the petitioner the respondent authority had also taken note that the allotment money was to be deposited on or before 19.12.2009. The respondent authority had made wide publication in ‘Dainik Jagran’ and ‘Amar Ujala’ on 13.12.2009 for the said purpose. Thereafter, the last date was further extended on 04.01.2010, thereafter upto 08.2.2010 and finally upto 19.2.2010. The respondent authority had also taken an objection that the notice was widely circulated to the allottees who made defaults in the payment. Therefore, it was claimed that the allottees were duly informed that beyond the said extended period no further relaxation/time would be accorded and the allotment would be considered as cancelled for which the allottees herself/himself would be responsible.

12. The facts as noted above are undisputed. The said action has not been challenged by the petitioner. All of sudden, she came from deep slumber and belated attempt had been made in the guise of some OTS Scheme launched by the authorities and preferred the Writ C No.36305 of 2022 on the ground that even though the application for extension of time was rejected but the authority did not pass any order cancelling the allotment, therefore, her application under OTS Scheme is to be considered. Accordingly, the writ petition was disposed of by this Court on 13.12.2022 with direction to the respondents to consider the claim of the petitioner in accordance with law. In response to the said order, the order impugned has been passed on 17.03.2023 wherein the respondents have taken an objection that inspite of the public notice dated 13.12.2009, which provided for extension of time for depositing the money in terms of the allotment letter to the allottees, which were also extended from time to time upto 19.02.2010, the petitioner had not availed such an opportunity. Even in response to the earlier order of this Court dated 14.12.2011 passed in Writ C No.71060 of 2011 the Chief Executive Officer had already rejected the claim/representation of the petitioner on 10.04.2012. Therefore, once the allotment was itself deemed to be cancelled with effect from 19.02.2010 and even the claim/application of the petitioner was also non-suited/rejected by the Chief Executive Officer on 10.04.2012, which has never been challenged. Therefore, the old claim cannot be revived at this belated stage under the OTS Scheme and even the said scheme is not available to the petitioner as her allotment was already cancelled.

13. A Constitution Bench of Hon'ble Supreme Court in Chand Rani v. Kamal Rani (1993) 1 SCC 519 [LQ/SC/1992/916] held that in case of sale of immovable property there is no presumption as to time being of the essence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to be performed in a reasonable time if the conditions are evident: (i) from the express terms of the contract; (ii) from the nature of the property; and (iii) from the surrounding circumstances, for example, the object of making the contract. Even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs.98,000/-. For the purposes of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case.

(emphasis supplied).

14. In the case of K.S. Vidyanadam and Ors. Vs. Vairavan reported in (1997) 3 SCC 1, [LQ/SC/1997/221] the plaintiff failed to make payment for the balance amount and thereafter executed the sale deed within six months of the agreement by the parties and filed suit for specific performance only after two and a half years. Hon’ble Supreme Court thereafter had also considered the essence of the contract, the Court may ensure that it is to be performed in a reasonable time, if the conditions are evident. Relevant paragraph nos.13 and 14 are extracted below:-

“13. In the case before us, it is not mere delay. It is a case of total inaction on the part of plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices – accordingly to the defendants, three times – between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.

14. Sri Sivasubramanium then relied upon the decision in Jiwan Lal (Dr) v. Brij Mohan Mehra (1972) 2 SCC 757 [LQ/SC/1972/441] to show that the delay of two years is not a ground to deny specific performance. But a perusal of the judgment shows that there were good reasons for the plaintiff to wait in that case because of the pendency of an appeal against the order of requisition of the suit property. We may reiterate that the true principle is the one stated by the Constitution Bench in Chand Rani. Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.”

15. Considering the aforesaid facts and circumstances, we do not find any infirmity or illegality in the impugned order.

16. Accordingly, the writ petition is dismissed.