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Suman Kukrety & Ors vs Mr Manish Kumar Gupta Resolution ...

National Company Law Appellate Tribunal28 August 2020

Ratio decidendi

The rule this decision rests on

Where a High Court has conclusively determined the ownership of land, and that determination has settled that the land acquiring authority acquired only part of a khasra, a claim for relief that presupposes the authority holds title to or an interest in the balance land, and seeks to compel it to settle a dispute with the owners over that balance, is inconsistent with the judicial finding and cannot be granted; the adjudicating authority is entitled to dismiss such an application on that ground. Where the remedy sought in an application is not the appropriate remedy for the matter in question (here, a demarcation dispute over the subject of a lease, which lies with the competent authority for demarcation), an order disposing of the application on that basis cannot be faulted.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 659 of 2020

IN THE MATTER OF: Manish Kumar Gupta ...Appellant Versus New Okhla Industrial Development Authority & Ors. ...Respondents

Present: For Appellant : Mr. Gurpreet Singh and Mr. Nitesh Jain, Advocates For Respondents : Mr. Rachit Mittal, Advocate for NOIDA

WITH

Company Appeal (AT) (Insolvency) No. 603 of 2020

IN THE MATTER OF: Suman Kukrety & Ors. ...Appellants Versus Manish Kumar Gupta, RP of Three C Project Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant : Ms. Deepti Nar and Mr. Ashish Chaudhary, Advocates For Respondents : Mr. Nitesh Jain, Advocate for R-1 Mr. Rachit Mittal, Advocate for R-2 ORDER

(Through Virtual Mode)

28.08.2020 Order dated 5th February, 2020 passed in CA-207(PB)/2020

and CA-187(PB)/2020 in CP (IB)-1718 (PB)/2018 pending adjudication before

the Adjudicating Authority (National Company Law Tribunal), New Delhi,

Principal Bench has been assailed in both the appeals, 'Company Appeal (AT)

(Insolvency) No. 603/2020' preferred by 100 allottees and 'Company Appeal (AT)

(Insolvency) No. 659/2020' preferred by the 'Resolution Professional' of the

'Corporate Debtor' - 'Three C Projects Pvt. Ltd.' By virtue of the impugned order,

the Adjudicating Authority on consideration of the above referred applications 2

filed by the 'Resolution Professional' dismissed CA-207(PB)/2020 holding that in

view of the direction given by the Hon'ble Allahabad High Court NOIDA Authority

is not to resolve or settle the dispute with the land owners who have already been

declared as owners of the property and no direction is warranted on this score.

The Adjudicating Authority further observed that question of handing over

possession of land standing in the name of the farmers does not arise. Insofar

as the relief in the nature of damages to the tune of Rs.500 Crores was

concerned, the Adjudicating Authority declined to go into the question as it had

no jurisdiction to ascertain damages.

2. Insofar as CA-187(PB)/2020 is concerned, the Adjudicating Authority has

only directed the suspended Directors to co-operate with the 'Resolution

Professional' by supplying documents as well as to provide every kind of

assistance required from the suspended Directors and report compliance. The

matter had been listed for further consideration on 27th February, 2020.

3. After hearing the learned counsel for the Appellants, in both the appeals,

as regards their exact grievance it emerges that land admeasuring 69998.73

square meters bearing No. GH-01/A came to be leased out by NOIDA Authority

to the Corporate Debtor for development of residential project. This was followed

by execution of the 'Conveyance Deed' dated 1st September, 2010. The plan was

approved by NOIDA Authority for development of the residential project styled

as "Lotus Zing" in the year 2010-11. The Corporate Debtor launched the project

for construction of 2454 flats of different categories and sizes. While the project

was under execution, CWP No. 73850 of 2010 came to be filed before the Hon'ble

High Court of Allahabad wherein writ petitioners claimed to be the owners of

Khasra No. 87 admeasuring 0.847 hetc. situated in village Chhaprauli Bangar,

Company Appeal (AT) (Insolvency) Nos. 659 & 603 of 2020 3

Pargana & Tehsil Dadri, District Gautam Budh Nagar. The Hon'ble High Court

held that the writ petitioners were owners of Khasra No. 87 admeasuring 0.847

hect. out of which NOIDA Authority had acquired only 0.4873 het. It further

emerges that the Corporate Debtor found itself in quandry as the remaining

0.3597 hect. not acquired by the NOIDA Authority, also stood allotted to the

Corporate Debtor in 2010. Since such remaining land is directed by the Hon'ble

High Court of Allahabad to be handed over to the framers, Corporate Debtor no

more can claim to be a lessee of such land. Therefore, NOIDA Authority holding

no title or interest in such remaining land which was not acquired by it, would

not be in a position to resolve and settle the dispute with the land owners. In

the backdrop of this factual position, application of 'Resolution Professional' viz.

CA-207(PB)/2020 seeking relief against NOIDA Authority to settle the dispute

with the land owners of Khasra No. 87 admeasuring 0.847 hect. and hand over

the entire land to the Corporate Debtor for execution of the residential project in

question would not be maintainable. Admittedly, issue with regard to ownership

of land in question has been settled by the Hon'ble High Court of Allahabad and

NOIDA Authority has been held to have acquired only 0.4873 hect. out of 0.847

hect of land. In view of this judicial verdict, the land owners/farmers are entitled

to obtain possession of the remaining 0.3597 hect. out of 0.847 hect. as NOIDA

Authority was found to have acquired only 0.4873 hect. Relief claimed in the

petition is in conflict with the judicial finding order of the Hon'ble High Court of

Allahabad and the same has been rightly dismissed.

4. Before parting with this order, we deem it appropriate to observe that in

view of the judicial verdict given by Allahabad High Court, the NOIDA Authority

would have done better by doing a bit of introspection and take appropriate steps

Company Appeal (AT) (Insolvency) Nos. 659 & 603 of 2020 4

to mitigate the hardship of the allottees of the residential project in question who

claimed to have been promised possession of flats within 33 months i.e. by 2013.

If there was any flaw in the land acquisition proceedings, steps should have been

taken to rectify the same. With the judgment of the Hon'ble High Court of

Allahabad staring in the face of Respondent No. 2, it cannot maintain that it had

lawfully leased out land forming portion of Khasra No. 87 to the Corporate Debtor

for residential project which had not been acquired by it. If it were a matter of

demarcation of the subject of lease, which is sought to be projected as the area

covered under land acquisition proceedings, it ought to have approached the

competent authority for conducting of demarcation of land. Be that as it may,

the remedy sought through the application filed by the Resolution Professional

which came to be disposed of in terms of the impugned order is not the

appropriate remedy and the impugned order disposing of the same in the manner

indicated cannot be found fault with.

We find no merit in these appeals. The appeals are accordingly dismissed.

[ Justice Bansi Lal Bhat ] Acting Chairperson

[ Justice Anant Bijay Singh ] Member (Judicial)

[ V.P. Singh ] Member (Technical) /ns/gc/

Company Appeal (AT) (Insolvency) Nos. 659 & 603 of 2020

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