2009 (1) TMI 875 - SC - Indian Laws

Supreme Court: Demand for Rs. 61,000 Per Acre for Community Buildings Unlawful, Lacks Legal Basis Under 1975 Haryana Act.

The SC allowed the appeal, ruling the demand for Rs. 61,000 per gross acre for internal community buildings illegal and unauthorized, as it lacked ... Maintainability of petition - Transfer of land free of cost to the Government - Demand raised towards the external development charges - construction of internal community buildings, with a further stipulation that no such charge would be realised from the plot holders - appellant alleged that 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 - Principles of waiver and acquiescence - HELD THAT:- 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. 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 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. 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. 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. Principles of waiver and acquiescence - It is 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. 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. We accordingly, dispose of this appeal in the light of the aforesaid directions and observations. Issues Involved:1. Legality of the demand for Rs. 61,000 per gross acre towards the construction of internal community buildings.2. Maintainability of the writ petition.3. Interpretation of Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975.4. Application of waiver and acquiescence principles.Detailed Analysis:1. Legality of the Demand for Rs. 61,000 per Gross Acre:The central issue in this appeal is the demand raised by the second respondent for Rs. 61,000 per gross acre, ostensibly for external development charges but actually intended for the construction of internal community buildings. The appellant challenged this demand as unlawful, arguing that it contradicted statutory provisions which only mandate the transfer of land free of cost to the Government for such buildings, without any charge to the licensee.The Supreme Court examined the relevant provisions of the Haryana Development and Regulation of Urban Areas Act, 1975, and the associated Rules. The Court noted that Section 3(3)(a)(iv) allows the developer three options: constructing community buildings at their own cost, getting them constructed by another institution or individual, or transferring the land free of cost to the Government. The Court found that the demand for Rs. 61,000 per gross acre for internal community buildings was not supported by the statutory provisions or the license agreement. The Court concluded that such a demand was illegal and unauthorized, as it had no statutory mandate.2. Maintainability of the Writ Petition:The respondent argued that the writ petition was not maintainable, suggesting that the appellant should have filed a civil suit instead. The Supreme Court rejected this contention, stating that since the demand was statutory, a writ petition was an appropriate remedy. The Court emphasized that challenges to statutory demands can be raised through writ petitions, making the appellant's approach valid.3. Interpretation of Section 3(3)(a)(iv) of the Act:The Court analyzed Section 3(3)(a)(iv) of the Act, which outlines the developer's obligations regarding community buildings. The provision gives the developer the option to either construct the buildings, get them constructed, or transfer the land free of cost to the Government. The Court clarified that these options are independent and cannot be conflated. The Government cannot demand both the land and the construction cost from the developer. The Court stressed that the statutory language was clear and unambiguous, and it was not the Court's role to add words or interpret the provision in a way that was not intended by the legislature.4. Application of Waiver and Acquiescence Principles:The respondent argued that the appellant had waived their right to contest the demand by making the payment. The Court rejected this argument, noting that the appellant had protested the demand and made the payment under threat of license cancellation. The Court cited the principle that waiver requires voluntary and intentional relinquishment of a right, which was not the case here. The appellant's payment was made under duress, and therefore, the principles of waiver and acquiescence did not apply.Conclusion:The Supreme Court allowed the appeal, declaring the demand for Rs. 61,000 per gross acre illegal, unjustified, and unreasonable. The Court directed that any payment made by the appellant towards this demand should be adjusted against other dues. The judgment emphasized the importance of adhering to statutory provisions and the limits of governmental authority in making financial demands on developers.