TMI Blog2009 (1) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... llenge to such a demand could always be raised by the appellant by filing a writ petition as such a demand is sought to be protected and supported by way of statutory provision. Since the land has been given free of cost, it is now open for the State Government to get the remaining community buildings constructed either by themselves or through any agency or institution or individual at its cost in terms of the provisions of the Act, in which case the terms and conditions could be laid down by the Government for such community buildings, to be constructed on the land which is transferred to it by the appellant free of cost. The Government cannot in law demand that the buildings on the said lands which is to be transferred to them free of cost should also be constructed by the appellant and then transfer the land to them free of cost along with the construction thereon and on failure to construct to pay for the cost of construction. That would in fact be a case of an illegal and unauthorised demand as it has no statutory mandate. The respondent cannot demand transfer of the land free of cost and also the construction cost of the facilities to be provided in the said land. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 61,000/- per gross acre. Whatever payment is made in respect of the aforesaid demand was not payable by the appellant to the respondent No. 2 as the said demand is held to be illegal, unjustified and unreasonable. We accordingly, dispose of this appeal in the light of the aforesaid directions and observations. - R.V. RAVEENDRAN DR. MUKUNDAKAM SHARMA JJ. JUDGMENT DR. MUKUNDAKAM SHARMA, J 1. The issue that falls for our consideration in this appeal is in respect of a demand of ₹ 61,000/- per gross acre, raised by the second respondent towards the external development charges but actually on account of construction of internal community buildings, with a further stipulation that no such charge would be realised from the plot holders. 2. The appellant has challenged the said demand of the second respondent as unlawful being contrary to the statutory provisions pertaining to the construction of internal community buildings, which only mandates transfer of land free of cost to the Government, if the Government so desires, but without providing for any amount chargeable from the licensee to the Government for the construction of these interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both for storm and sullage water and necessary provision for their treatment and disposal; and (vi) any other work that the Director may think necessary in the interest of proper development of a colony. Section 3. Application for licence. (1) Any owner desiring to convert his land into a colony, shall, unless exempted under section 9, make an application, to the Director, for the grant of a licence to develop a colony in the prescribed form and pay for it such fee as may be prescribed. The application shall be accompanied by an income-tax clearance certificate. (2) . (3) After the enquiry under sub-section (2), the Director by an order in writing, shall (a) grant, a licence in the prescribed form, after the applicant has furnished to the Director a bank guarantee equal to twenty five per centum of the estimated cost of development works as certified by the Director and has undertaken-- (i) to enter into an agreement in the prescribed form for carrying out and completion of development works in accordance with the licence granted: (ii) (iii) ............... (iv) to construct at his own cost, or get const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plot-holders less the amount actually spent on such development works, and that of the plot-holders shall not exceed the amount which he would have to pay to the colonizer towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them; Provided that the Director may, recover from the plot holders with their consent, an amount in excess of what may be admissible under the aforesaid terms of agreement of sale or transfer. (4) Notwithstanding anything contained in this Act, after the colony has been fully developed under sub-section (2), the Director may, with a view to enabling the colonizer, to transfer the possession of and the title to the land to the plot-holders within a specified time, authorize the colonizer by an order to receive the balance amount, if any, due from the plot-holders, after adjustment of the amount which may have been recovered by the Director towards the cost of the development works and also transfer the possession of or the title to the land to the plotholders within aforesaid time. If the colonizer fails to do so, the Director shall on behalf of the colonizer transfer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released by him from the plot holders, from time to time, within ten days of its realisation in a separate account to be maintained in a scheduled bank and this amount shall only be utilized towards meeting the cost of internal development works in the colony; (c) undertake to pay proportionate development charges if the main lines of roads, drainage, sewerage, water supply and electricity are to be laid out and constructed by the Government or any other local authority. The proportion in which and time within which such payment is to be made shall be determined by the Director. (d) undertake responsibility for the maintenance and upkeep of all roads, open spaces, public parks and public health service for a period of five years from the date of issue of the completion certificate under rule 16 unless earlier relieved of this responsibility and thereupon to transfer for all such roads, open spaces, public marks and public health service free of cost to the Government or the local authority as the case may be; (e) undertake to construct at his own cost or get constructed by any other institution or individual at its cost, schools, hospitals, community centres an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 6. Form LC-III which is part of the Rules is the proforma of the letter to be written by the Director to the colonizer referring to his application for the grant of licence to set up a colony. The said proforma requires the Director to inform the colonizer that it was proposed to grant the licence to him for setting up a colony and that he should fulfil the conditions laid down in Rule 11. The said letter is to be sent by the Director in compliance with the provisions of Rule 10. It is only after receipt of the aforesaid letter that a colonizer enters into an agreement with the Director in Form LC-IV. The said Form LC-IV which is part of the statutory rule 11 is the format of the agreement which the owner of the land intending to set up a colony enters into with the Director for and on behalf of the Government of Haryana. 7. A bare look of the said agreement which is a part of the record would make it clear that many of the terms and conditions of the agreement are extracts of the provisions of the Act and the Rules. It is also provided in the said agreement that colonizer would carry out all directions issued by the Director for due compliance of the execution of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layout plans and the development works in accordance with the licence granted. e) That the Owner shall pay proportionate development charges as and when required and as determined by the Director in respect of external development charges. f) That without prejudice of anything contained in this agreement all the provisions contained in the Act, and these rules shall be binding on the Owner . 2. Provided always and it is hereby agreed that if the Owner commit any breach of the terms and conditions of this agreement or violate any provisions of the Act or these rules, then and in any such case, and notwithstanding the waiver of any previous clause or right, the Director, may cancel the licence granted to him. 3. Upon cancellation of the licence under Clause 2 above the Govt. may acquire the area of the aforesaid colony under the Land Acquisition Act, 1894 and may develop the said area under any other law. The Bank Guarantee in that events shall stand forfeited in favour of the Director. 4. The stamp and registration charges on this deed shall be borne by the Owner. 5. The expression the Owner herein before used shall include his heirs, legal repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia that as per provisions, the licensee was required to construct at his own cost either itself or through an institution or individual, the schools, hospitals, community centres and other community buildings or to transfer to Government free of cost the land set apart for schools, hospitals, community centres and other community buildings. 11. It was further submitted that in terms of the aforesaid provision, the appellant licensee was not required to pay for the development of those buildings in case the land is transferred to the Government free of cost. It was also pointed out by the appellant that in fact such a demand made by the respondent No. 2 is beyond the competence of the Government as any payment made for such development would not only be against the provision of the Act and the Rules framed thereunder but would also be against the principles of unjust enrichment. 12. The Punjab and Haryana High Court considered the aforesaid Writ Petition and thereafter by the impugned judgment and order dated 29.7.1999 rejected the contentions of the appellant holding that the appellant had failed to develop the said buildings which it was obliged to do and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case. 15. So far the contentions with regard to the maintainability of the writ petition is concerned, we are not impressed and persuaded with the aforesaid contentions as according to the respondent themselves, the aforesaid demand is being made within the parameter and ambit of the provision of section 3(3)(a)(iv). That being the position, the demand made according to the respondent is a statutory demand and therefore challenge to such a demand could always be raised by the appellant by filing a writ petition as such a demand is sought to be protected and supported by way of statutory provision. 16. Even if the appellant has taken up the plea that such a demand is not supported by the statutory provisions and is in fact in conflict with them, even then the issue pertains as to whether or not such a demand could be made and supported by the said provisions, in which case, a writ petition is competent and maintainable and the plea raised by the respondent therefore with regard to the maintainability of the petition is only to be rejected which we hereby do. 17. Section 3(3)(a)(iv) of the Act is the relevant provision and the merit of the claim and repudiatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid provision, therefore, gives three options for construction of such community centres and facilities like schools, hospitals, community centres and other community buildings. Such centres and buildings could be constructed by the developer himself or he may get the same constructed by any other institution or individual whereby such individual would be able to utilize the said building. In case the developer fails to exercise either of the aforesaid two options, a third option is also open to the developer under which he would transfer the said land, where the community facilities are to be established, free of cost to the Government in which case such schools, hospitals, community centres and community buildings could be constructed either by the Government itself or the said land could be transferred by the Government to any person or institution including a local authority on such terms and conditions as the Government may deem fit. The aforesaid provision is clear and explicit and there is no ambiguity in it. The only question therefore, which arises herein is, in a case where the land is transferred to the Government free of cost and when such schools, hospitals, commu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as required to be done which is statutorily provided for. A part of the community centre has also been constructed by the developer themselves but the entire community centre could not be developed by it or through its agencies and therefore the land allocated for the remaining community buildings/development have been transferred to the Government free of cost. 22. Since the land has been given free of cost, it is now open for the State Government to get the remaining community buildings constructed either by themselves or through any agency or institution or individual at its cost in terms of the provisions of the Act, in which case the terms and conditions could be laid down by the Government for such community buildings, to be constructed on the land which is transferred to it by the appellant free of cost. The Government cannot in law demand that the buildings on the said lands which is to be transferred to them free of cost should also be constructed by the appellant and then transfer the land to them free of cost along with the construction thereon and on failure to construct to pay for the cost of construction. That would in fact be a case of an illegal and unauthori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer to the Government at any time free of cost the land, should be read by adding the provisions of the earlier part of the section i.e. to construct at his own cost the community centres and other community buildings on the lands set apart for this purpose. 27. The aforesaid contention apparently arises out of the complete misreading of the aforesaid provision. The responsibility regarding construction of community centres and other community buildings could be discharged by adopting any of the three options as mentioned hereinbefore and each one of such options is an independent option and one cannot be connected and related with the other. We cannot read the provision relating to construction at the own cost of the developer the schools, hospitals, community centres and other community buildings on the land set apart for this purpose, into an independent alternative provision relating to transfer of such land to the Government free of cost. The aforesaid option given to the developer to construct the community centres and other community buildings at its own cost is when he can utilize himself manage it. Therefore, we cannot read the aforesaid provision in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term development works as the same come within the purview of the term amenities . The Court in Para 33 held as under: Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term development works . They come within the purview of the term amenities . Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification whereafter, the same is required to be handed over to the Government or the local authority as the case may be, free of cost. 31. Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2. 35. The appeal, therefore, stands allowed and we hold that respondent No. 2 was not authorized or justified in raising the aforesaid demand of ₹ 61,000/- per gross acre. Whatever payment is made in respect of the aforesaid demand was not payable by the appellant to the respondent No. 2 as the said demand is held to be illegal, unjustified and unreasonable. The counsel for the appellant during the course of his arguments however submitted that the said amount now payable by the respondent No. 2 be adjusted towards the dues of the appellant. Accordingly we direct such adjustment of the amount in accordance with law. 36. We accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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