SAMDARIYA BUILDERS PVT. LTD Vs. JABALPUR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioner, a Builder and Developer, has approached this Court by way of filing this petition under Article 226 of the Constitution of India raising dispute with respect to the claim made by the respondent vide letter dated 15-1-2009 for payment of ground rent and also the rejection of representation made by the petitioner against the said letter vide order dated 17-3-2009. It is contended by the petitioner that in fact such a demand made by the respondent from the petitioner towards the payment of ground rent was wholly unjustified, illegal and de hors the rules, which are in force. It is contended that in terms of the amended provisions of Rule 47 of the Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachanao Ka Vyayan Niyam, 1975 (hereinafter referred to as 'Rules'), the demand made by the respondent is per se illegal and the same is liable to be quashed. It is contended that in somewhat similar circumstances, this Court has quashed the said demand in case of other lease holders and, therefore, the similar benefit is to be granted to the petitioner. Brief facts giving rise to filing of this writ petition are that the respondent is a Development Authority constituted under the provisions of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as '1973 Act'). A scheme was made by the said authority and thereafter a notice inviting tender was published initially on 16-7-2004. It was made known that in Scheme No. 18, a commercial complex was to be constructed within Civic Center, Jabalpur for which tenders were invited. Terms and conditions were laid-down. By publication dated 20-9-2004, the tender period was extended. The petitioner took part in the tender proceedings and its offer was accepted. A letter was issued to the petitioner calling upon it to enter into an agreement with the respondent for the purposes of grant of such lease of land for construction of commercial complex. The agreement was executed on 1-5-2006. In terms of said agreement, it was agreed under Clause 8(f) that the petitioner would be liable to pay 2% of premium amount as yearly ground rent amounting Rs. 14,81,620/- or the rent as decided by the Board of the respondent in its next meeting. Certain other conditions were mentioned in the said agreement. In Clause 39, again the annual ground rent was described saying that the same would be 2% of the premium every year or as decided by the Board of the respondent in its next meeting, proportionate to the constructed area of the building. Since multistory building was to be constructed, it was said in this clause that for the ground floor of the building, the lease rent would be calculated at the rate of 40%, for the first floor 25%, for second floor 20% and for third floor 15%. The lease holder will be liable to pay all taxes to the Municipal Corporation.

(2.) After execution of this agreement, it was said that an area of 41179 Sq.ft. was allotted to the petitioner for the purposes of construction of the commercial complex. The lease deed was executed in favour of the petitioner on 30-5-2008 and the premium of the said lease was fixed at Rs. 7,40,81,021/- and for the first time a demand was raised that the petitioner was required to pay yearly ground rent at Rs. 14,81,620/-. On receipt of this lease deed, the petitioner made a representation stating that when the agreement was executed and when the lease deed was granted in favour of the petitioner, an amendment in Rule 47 of the Rules was made by the State Government and in accordance to the provisions of the said Rule, since petitioner was required to deposit only Rs. 13,590/- as yearly ground rent, the demand of ground rent at Rs. 14,81,620/- was not justified. However, such a representation made by the petitioner has been rejected on 15-1-2009, a demand is raised for deposit of the ground rent at the aforesaid rate, therefore, this writ petition is required to be filed.

(3.) It is vehemently contended by learned senior Counsel for the petitioner that since the land in question was allotted to the respondent by the State Government, it being the Nazul land, squarely the amended provisions of Rule 47 of the Rules would be attracted and at the best 10% service charge on the ground rent fixed by the State Government, or payable to the State Government could be charged from the petitioner. This particular aspect was taken note of by the respondent itself as in the note-sheet, after obtaining guidance from the State Government, the calculations were already done. Only because in the agreement a condition contrary to the provisions of Rule 47 of the Rules was made, the petitioner could not be forced to deposit the amount of ground rent at the rate claimed by the respondent. It is contended that such a condition mentioned in Clause 8(f) of the agreement is contrary to law and, therefore, is not enforceable in view of section 23 of the Contract Act. This being so, the claim made by the respondent was not justified. However, these aspects have not been taken note of and such an arbitrary and illegal demand has been made from the petitioner, therefore, such a demand notice is liable to be quashed. It is contended by learned senior Counsel for the petitioner that the law is well settled in this respect. Any condition stipulated in an agreement, which is void in accordance to the provisions of law, cannot be enforced.