M/S. Ansal Properties & Industries Ltd vs State Of Haryana & Anr

M/s. Ansal Properties & Industries Ltd. ..Appellant

Versus State of Haryana & Anr. ..Respondents

JUDGMENT

DR. MUKUNDAKAM SHARMA, J

1. The issue that falls for our consideration in this appeal is in respect of a

demand of Rs. 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 internal

community buildings.

3. These challenges are made by way of filing the present appeal which is

filed against the judgment and order of the Division Bench of the Punjab

and Haryana High Court dated 29.07.1999 whereby the writ petition

filed by the appellant was dismissed.

4. Appellant is a public limited company registered and incorporated under

the Companies Act, 1956 and is into the business of real estate

development and development of colonies. Since 1983, the appellant

Company had been granted licenses by the Director, Town and Country

Planning (for short "Director") being respondent No. 2 herein under the

provisions of Haryana Development and Regulation of Urban Areas Act,

1975 (for short the "Act") and Haryana Development and Regulation of

Urban Areas Rules, 1976 (for short the "Rules") for setting up colonies

in the District Gurgaon, Haryana. For the said purpose, agreements were

entered into from time to time between the appellant Company and

respondent No. 2 in the prescribed form i.e. LC-IV, under Rule 11 of the

Rules. The said licenses were renewed from time to time.

Page 2 of 32

5. As per clause 1 of the Licence Agreement, the licensee is required to

fulfil the conditions laid down in Rule 11 of the Rules. However, before

we go into the various terms and conditions of the licence, we think it to

be useful to refer to and extract some of the relevant provisions of the

Act read with the Rules. The said Act and Rules were framed to regulate

the use of the land, in order to prevent ill planned urbanization in or

around the towns in the State of Haryana and the same inter alia governs

the grant of licence for colonizing upon terms set out in the licence

agreement, which is given in the statutory form namely Form LC-IV.

The relevant provisions of the Act are quoted hereunder:-

"S.2. Definition. In this Act, unless the context otherwise requires:

.....................

(g) "external development works" include sewerage, drains, roads and electrical works which may have to executed in the periphery of, or outside, a colony for the joint benefit of two or more colonies:

(i) "internal development works" mean -

metaling of roads and paving of footpaths;

(ii) turfing and plantation with trees as open spaces;

(iii) street lighting;

(iv) adequate and wholesome water-supply;

Page 3 of 32

(v) sewers and drains 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 constructed by an other institution or individual at its cost, schools, hospitals, community centres and other community buildings on the lands set apart for this purpose, or to transfer to the Government at any time, if so desired by the Government, free of cost the land set apart for

Page 4 of 32 schools, hospitals, community centres and community buildings, in which case the Government shall be at liberty to transfer such land to any person or institutions as it may deem fit;

(b).........

(4) The licence so granted shall be valid for a period of two years and will be renewable from to time for a period of one year, on payment of prescribed fee.

(5) A separate licence shall be required for each colony.

Section 5. Cost of Development Works - (1) The colonizer shall deposit fifty per centum of the amount realised, from time to time, by him, from the plot-holders within a period of ten days of its realisation in a separate account to be maintained in a scheduled bank. This amount shall only be utilized by him towards meeting the cost of internal development works in the colony. After the internal development works of the colony have been completed to the satisfaction of the Director, the colonizer shall be at liberty to withdraw the balance amount. The remaining fifty per centum of the said amount shall be deemed to have been retained by the colonizer, inter-alia to meet the cost of land and external development works.

(2) The colonizer shall maintain accounts of the amount kept in the scheduled bank, in such manner as may be prescribed.

Sec. 8 Cancellation of license - (1) A license granted under this Act, shall be liable to be cancelled by the Director if the colonizer contravenes any of the conditions of the license or the provisions of the Act or the rules made thereunder, provided that before such cancellation the colonizer shall be given an opportunity of being heard.

Page 5 of 32 (2) After cancellation of the licence, the Director may himself, carry out or cause to be carried out, the development works in the colony and recover such charges as the Director may have to incur on the said development works from the colonizer and the plot-holders in the manner prescribed as arrears of land revenue.

(3) The liability of the colonizer for payment of such charges shall not exceed the amount the colonizer has actually recovered from 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 plot- holders within aforesaid time. If the colonizer fails to do so, the Director shall on behalf of the colonizer transfer the possession of and the title to the land to the plot-holders on receipt of the amount which was due from them.

(5) After meeting the expenses on developments works under sub-section (2), the balance amount shall be payable to the colonizer."

Page 6 of 32 Some of the provisions of the Rules which require mention are extracted

herein below;

4. Percentage of area under of roads, open spaces etc. in layout plans section ; 3(4) and 24 :- (1) In the layout plan of a colony other than an industrial colony, the land reserved for roads, open spaces, schools, public and community buildings and other common uses shall not be less than forty five percent of the gross area of the land under the colony :

Provided that the Director may reduce after recording reasons therefor this percentage to a figure not below thirty- five where in his opinion the planning requirements and the size of the colony so justify.

(2) In the layout plan of an industrial colony, the land reserved for the purpose specified in sub- rule (1) shall not be less than thirty five percent of the gross area of the land under the colony :

Provided that the Director may reduce after recording reasons therefor this percentage to a figure not below twenty wherein his opinion the planning requirements and the size of the colony so justify.

5. Development works to be provided in colony; section 3(3) - The designs and specifications of the development works to be provided in a colony shall include:-

(a) metaling of roads and paving of footpaths ;

(b) turfing and plantation with trees of open spaces ;

(c) street lighting ;

(d) adequate and wholesome water supply ;

(e) sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal ; and

(f) any other works that the Director may think necessary in the interest of proper development of the colony.

Page 7 of 32 11. Conditions required to be fulfilled by applicant, Section 3(3) - The applicant shall:-

(a) furnish to the Director a bank guarantee equal to twenty five per cent of the estimated cost of the development work as certified by the Director and enter into an agreement in form LC-IV for carrying out and completion of development works in accordance with the licence finally granted;

(b) undertake to deposit fifty percent of the amount to be 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 and other community buildings on the land set apart for this purpose, or undertake to transfer to the Government at any time if so desired by the Government free of cost, the land set apart for schools, hospitals, community centres and community buildings, in which case the Government shall be at liberty to transfer

Page 8 of 32 such land to any person or institution including a local authority on such terms and conditions as it may deem fit;

and

(f) undertake to permit the Director or any other officer authorized by him to inspect the execution of the layout and the development works in the colony and to carry out all directions issued by him for ensuring due compliance of the execution of the layout and development works in accordance with the licence granted.

(2) If the director, having regard to the amenities which exist or are proposed to be provided in the locality, decides that it is not necessary or possible to provide such amenity or amenities, the applicant will be informed thereof and clauses (c), (d) and (e) of sub-rule (1) shall be deemed to have been modified to that extent.

12. Grant of Licence. Section 3(3) and (4) - (1) After the applicant has fulfilled all the conditions laid down in rule 11 of the satisfaction of the Director, the Director shall grant the licence in form LC-V.

(2) The licence granted under sub-rule (1) shall be valid for a period of two years from the date of its grant during which period all development works in the colony shall be completed and certificate of completion obtained from the Director as provided in rule 16.

Rule 14 of the Rules empowers the Director to renew the licence for a

period of one year provided he is satisfied that the delay in execution of the

development works was for the reasons beyond the control of the colonizer.

Rule 18 on the other hand provides that where the execution of the lay out

Page 9 of 32 plan and construction of other work is not proceeded according to the

licence granted under Rule 12, or is below the specification or is in violation

of the provisions of any law or the Rules, the Director by a notice shall

require the colonizer to remove various defects within the period specified

in the notice and if the colonizer fails to comply with the requirements, after

hearing the colonizer, the Director may either cancel the licence or grant

him further time for complying with the requirement.

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.

Page 10 of 32

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 lay out and

development works in accordance with the licence granted.

8. It is also provided therein that without prejudice to anything contained in

the said agreement, all the provisions contained in the Act and the Rules

would be binding on the owner. In order to better appreciate the

contention raised by the parties, we have extracted the relevant

provisions of the Licence Agreement entered into between the appellant

and respondent No. 2, herein.

1. In consideration of the Director agreeing to grant licence to the owner to set up the said colony on the land mentioned in Annexure hereto on the fulfillment of all the conditions laid down in Rule 11 by the Owner, the owner hereby covenants as follows:

a) That the Owner shall be responsible for the maintenance and upkeep of all roads open spaces, public parks and public health services for a period of five years from the date of issue of the completion certificate under rule 16 of the Rules unless earlier relieved of this responsibility, when the Owner shall transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the Local Authority as the case may be.

Page 11 of 32

b) That the Owner shall construct at his own cost or get constructed by any other institution or individual at its cost, schools, hospitals, community centres and other community building on the land set apart for this purpose or undertake to transfer to the Government at any time, if so desired by the Government free of cost, the land set apart for schools, hospitals, community centres and other community buildings, in which case the Government shall be at the liberty to transfer such land to any person or institution including Local Authority on such terms and conditions as if may lay down.

c) That the owner shall deposit fifty percent of the amount realized by him from plot holders, from time to time, in a separate account to be maintained in a Scheduled Bank and that this amount shall only be utilized by the Owner towards meeting the cost of internal development works in the colony.

d) That the Owner shall permit the Director or other Officer authorized by him in this behalf to inspect the execution of the layout and the development works in the colony and the Colonizer shall carry out all directions issued by him or ensuring due compliance of the execution of the 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

Page 12 of 32 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 representatives, successors and permitted assigns.

The last clause (clause 6) provides that on completion and grant of

the completion certificate, the Director may release the bank guarantee on

the application filed by the appellant Company.

9. In the present case, the respondent No. 2 by letter dated 11.01.1988

informed the appellant Company that it was required to pay due amount

of Rs. 3.72 lacs per gross acre on account of external development

charges. It was also mentioned in the said letter that an amount of Rs.

3.72 lacs per gross acre, in fact includes Rs. 61,000/- per gross acre on

account of internal community buildings for which no recovery should

Page 13 of 32 be made from the plot holders. It was also mentioned in the said letter

that credit would be given by Haryana Urban Development Authority for

the internal community buildings already constructed by the colonizer

namely the appellant. Again under letter dated 07.10.1993, the appellant

Company was informed that before its licence could be considered for

renewal, the appellant Company was required to pay the aforementioned

charges. Subsequently on 04.05.1994, respondent No. 2 issued letter to

the appellant informing that the licence of the appellant would be

renewed only after the deposit of the aforesaid amount. Aggrieved by

the aforesaid letter, the appellant Company made several representations

to respondent Nos. 1 and 2 contending inter alia that as per the licence

agreement and also as per the provisions of the Act and the Rules the

appellant Company was not liable to pay the amount of Rs. 61,000/- per

gross acre towards the construction of internal community buildings. It

was also submitted in the said representations by the appellant that the

Director had wrongly included the above said amount and the said

demand was not only unjust and arbitrary but also contrary to licence

agreement and also against the provisions of the Act and the Rules

framed thereunder.

Page 14 of 32

10. As its aforesaid representations did not bear any fruits, the appellant

Company filed a writ petition before the Punjab and Haryana High Court

challenging the demand letters dated 11.1.1988, 17.10.1993 and

4.5.1994 to the extent of demand for Rs. 61,000/- per acre (and interest

thereon) on account of internal community buildings, by including it in

the external development charges. The appellant also contended inter

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.

Page 15 of 32

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 thus the Director was justified in demanding the said amount

from the appellant Company which would be invested for the

construction of these buildings only. Aggrieved by the said judgment

and order, the present appeal is preferred by the appellant Company on

which we have heard the learned counsel appearing for the parties.

13. The aforesaid contentions which were raised by the appellant in the

various representations submitted were reiterated before us by Mr. Arun

Jaitley, the learned senior counsel appearing for the appellant. It was

further submitted by him that the Director, respondent No. 2 herein,

while making the unlawful demand of Rs. 61,000/- per gross acre in the

name of construction of internal community buildings, had acted

arbitrarily, unfairly and unreasonably inasmuch as he had no power or

authority to include the cost of internal community buildings in the

external development charges.

14. Mr. Anoop G. Chaudhary, learned senior counsel appearing for

respondent No. 2, however, took up various pleas in order to support the

Page 16 of 32 demand made by the respondent No. 2. It was submitted by him that the

entire transaction and the demand made is covered by the Act and the

Rules framed thereunder. He submitted that the appeal is liable to be

dismissed as the writ petition itself was not maintainable, inasmuch as,

the contention of the appellant is that the impugned demand made is

outside the provisions of the Act and the Rules and therefore the actual

remedy that was available to the appellant to challenge said demand was

by way of filing a civil suit.

He also submitted that the present writ which is filed by the appellant

is in the nature of claim for rendition of accounts for which the writ is not a

proper remedy. He submitted that on both the aforesaid counts, the writ

petition is required to be dismissed. He also submitted that the demand

made is within the jurisdiction and parameters laid down in section 3(3)(a)

(iv) of the Act and therefore, the challenge made to the aforesaid demand is

unfair and unjustified.

He also advanced an alternative argument contending inter alia that if

the aforesaid contentions are not accepted, even in that event, the entire

amount for which demand was raised has since been paid by the appellant

and therefore, the principle of waiver and acquiescence will apply to the

facts and circumstances of the present case.

Page 17 of 32

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 repudiation thereof is based on the interpretation of the

said provision. It was pointed out on behalf of the appellant that 49 plots

Page 18 of 32 have been given by the appellant developer to the Government as

community sites. Section 5 of the Act enumerates that colonizer would

deposit 50% of the amount realised from time to time by him from the

plot holders within the period of 10 days of its realization in a separate

account to be maintained in a scheduled bank. It is also provided therein

that the aforesaid 50% amount which is so deposited would only be

utilized towards meeting the cost of the internal development works in

the colony. Further stipulation in the said provision is that after the

internal development works of the colony have been completed to the

satisfaction of the Director, the colonizer would be at liberty to withdraw

the balance amount. The remaining 50% of the amount would be

deemed to have been retained by the colonizer to meet the cost of the

land and external development works. Section 8 of the Act which is

extracted herein above also provides that the Director could cancel the

licence given to the developer colonizer if he contravenes any of the

conditions of the licence or the provision of Act or the Rules made

thereunder and after the cancellation of the licence, the Director may

himself carry out or cause to be carried out the development works in a

colony and recover such other charges as the Director may have to incur

on the said development work from the colonizer and the plot holders.

Page 19 of 32

18. Rules 4, 5 and 11 which are made part of the statutory rules give effect to

the aforesaid provision of Section 3(3). The comparative reading of the

provisions of Section 3(3)(a)(iv) and sub-clause (b) of clause (1) of the

Licence Agreement would clearly show that the licensee-colonizer is

required to construct at his own cost schools, hospitals, community

centres and other community buildings or may get the same constructed

by any other institution or individual. The developer also has the option

to transfer to the Government at any time, if so desired by the

Government, free of cost the land set apart for schools, hospitals,

community centres and community buildings in which case the

Government would be at liberty to transfer such land to any person or

institution including a local authority on such terms and conditions as it

may deem fit.

19. The said 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

Page 20 of 32 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, community centres and community buildings are to be

constructed either by the Government or any agency appointed by the

Government whether the charges for internal community buildings is

also required to be paid by the developer.

20. It was submitted by the counsel appearing for respondent No. 2 that the

demand is made by the State Government as external development

charges although the same is actually for making internal community

buildings which was in the interest of proper development of the said

colony. The High Court upheld the said contention on the ground that a

colonizer is duty bound to complete the development works in the

Page 21 of 32 colony within a specified period and that the idea behind providing such

a time limit was only to safeguard the interest of various plot

holders/residents of the colony so that they might not be left at the lurch

by the colonizer after selling plots to them. It was further held that since

a complete control over the activities of the colonizer is envisaged under

the provisions of the Act and the Rules, the action of the Director in

calling upon the appellant Company to pay charges for some of the

internal community buildings could not be termed as arbitrary.

21. The said findings arrived at by the learned Division Bench of the High

Court appears to be in direct conflict and also in contradiction with the

provisions of Sections 3(3)(a)(iv) of the Act and also all the terms and

conditions provided in sub-clause (b) of clause (1) of the Licence

Agreement. There is no mention at all of any requirement for the

licensee to provide for or to make payment for the cost of construction of

internal community buildings when the land is transferred to the

Government free of cost. No such statutory basis could be shown either

in the statute or in the licence agreement. When a specific question was

put as to whether the amount was demanded towards internal community

buildings or external development charges, the learned counsel, was

constraint to admit that although the said amount was being demanded

Page 22 of 32 towards external development works but in fact the same was being

demanded from the appellant towards internal community buildings

which were required to be constructed by the appellant. There is no

dispute with regard to the fact that the developer of the colony, namely

the present appellant has carried out all the internal development works

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

Page 23 of 32 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.

23. When the provisions of Section 3(3)(a)(iv) are analysed, it would be

apparent that the word used in the said provision is "land" and it has

been specifically mentioned therein that if the colonizer does not

construct the community buildings and facilities on its own or through

its agency or organization or individual, then the said licensee would be

required to transfer the said land set apart for the aforesaid purpose free

of cost to the Government.

24. The Government's claim is therefore restricted to lands which the

developer has failed to develop as community centres. In other words

only that land which the developer has not been able to develop as

community services facilities would stand transferred to the Government

free of cost and the said land could be utilized by the Government for the

aforesaid purpose either by itself or through its agency. If the legislature

Page 24 of 32 had intended that the licensee is required to transfer the land and also to

construct the buildings on it or to make payment for such construction,

the legislature would have made specific provisions laying down such

conditions explicitly and in clear words in which event the provisions

would have been worded in altogether different words and terms. It is

well settled principle in law that the court cannot read anything into a

statutory provision which is plain and unambiguous. The language

employed in a statute is determinative factor of legislative intent. If the

language of the enactment is clear and unambiguous, it would not be

proper for the courts to add any words thereto and evolve some

legislative intent, not found in the statue.

25. In Ganga Prasad Verma (Dr.) v. State of Bihar [1995 Supp. (1) SCC

192], it has been held that where the language of the Act is clear and

explicit, the Court must give effect to it, whatever may be the

consequences, for in that case the words of the statute speak the intention

of the legislature.

26. Mr. Anoop G. Chaudhary, learned senior counsel wanted us to read the

provision of the Section 3(3)(a)(iv) of the Act by adding a few words to

it, for according to him the latter part of the aforesaid section i.e. the

Page 25 of 32 obligation of the appellant to transfer 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 sought to be read by Mr. Chaudhary, for reading

by adding certain words in the aforesaid manner does not appear to be

the intention of the legislature while enacting the aforesaid legislation,

Page 26 of 32 for otherwise the legislature would have explicitly said so in the body of

the main part of the section itself.

28.Therefore, we not only reject the preliminary objections raised by the

respondent No. 2 in this matter, but we also reject his contention that the

aforesaid demand of Rs. 61,000/- per gross acre is permitted under the

provision of Section 3(3)(a)(iv) of the Act.

29. We, therefore, now come to the last submission of the counsel appearing

for respondent No. 2 which relates to issue of waiver and acquiescence

in view of the fact that payment was made by the appellant which was

demanded from him under the aforesaid letters.

30. The correspondences between the parties in respect of payment of the

aforesaid demand would clearly establish that respondent No. 2 made a

demand for the payment of the aforesaid amount of Rs. 61,000/- per

gross acre failing which a threat was issued that the licence which was

issued to it would stand cancelled. It is also pointed out on behalf of the

respondent No. 2 that subsequently the respondent No. 2 has made it a

policy of including expressly the value of the community buildings in the

internal development works and ensuring that one fourth of the total cost

Page 27 of 32 of the internal development work could be secured by a bank guarantee.

It is needless to say that if the provision would have been the same at the

relevant time, in that event the situation would have been different but

no such provision either in the Act or in the Rules or in any policy

framed by the Government could be brought to our attention. Therefore,

what we were required to consider was only the explicit provision of

Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are

extracted herein before in terms of which we find no obligation on the

part of the appellant to pay for the construction of internal community

buildings which was being demanded by the appellant as external

development charges. Charges for construction of internal community

buildings can never be equated with the external development charges,

so the demand itself was illegal. The view taken by us also derive

support from the judgment of this Court in DLF 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:

Page 28 of 32

"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

made even as internal community buildings for no such power and

jurisdiction was vested in the Government to make such a demand for

the simple reason that there was neither any statutory support nor any

policy decision in support of the same. Even in the Licence Agreement,

nothing was contemplated to the effect that in addition to the liability to

transfer the land set apart for the said buildings to the Government free

of cost, on the contingency mentioned in the statue and relied in the

Licence Agreement, the licensee is also required to pay for the

construction of said buildings.

Page 29 of 32

32. So far the issue with regard to the waiver and acquiescence is concerned,

we find that such contention that the principles of waiver and

acquiescence is attracted to the facts of the case is also not tenable. In

the letter dated 08.02.1988 which was written by the appellant in

response to the letter of respondent No. 2 dated 11.01.1988 on the

subject of payment of external development charges, it was clearly stated

that the revised rates which is since determined by the Director in their

communication dated 18.9.1987 and its further revision are not covered

by the clause of the agreements being referred in the recent

communications. In paragraph 2 of the said letter it was specifically

stated that the respondent No. 2 had included an amount of Rs. 61,000/-

per gross acre on account of community buildings in the external

development charges, which is not payable, as according to the

requirements of the Act and licence the appellant was required to pay

external development charges only and there was no mention of charges

towards construction of internal community buildings in case the land set

apart for the said purpose is transferred to the Government free of cost.

Therefore there was a protest and demur on the part of the petitioner

against the aforesaid demand.

Page 30 of 32

33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi

Tenants' Assn., [1988 Supp SCC 55], it was held by this Court that in

order to constitute waiver, there must be voluntary and intentional

relinquishment of a right. The essence of a waiver is an estoppel and

where there is no estoppel, there is no waiver. Estoppel and waiver are

questions of conduct and must necessarily be determined on the facts of

each case.

34. It is thus established that the appellant on receipt of the 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 Rs.

61,000/- per gross acre. Whatever payment is made in respect of the

Page 31 of 32 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 accordingly, dispose of this appeal in the light of the aforesaid

directions and observations.

...........................

......J. (R.V. Raveendran)

.................................J. (Dr. Mukundakam Sharma) New Delhi;

January 23, 2009

Page 32 of 32