TaxTMI 
TaxTMI 
2009 (1) TMI 875
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....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. 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 i....
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....nds 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 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 r....
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....e balance amount shall be payable to the colonizer." 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 specifi....
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....ll 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; 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 compl....
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....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. 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,....
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.... 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 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. 6....
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....ious 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 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 th....
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.... 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. 18. Rules 4, 5 and 11 which are made part of the statutory rules give effect to the aforesaid provi....
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....ldings 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 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 in....
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....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 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 th....
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....d 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 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....
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....Agreement, the licensee is also required to pay for the construction of said buildings. 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 ....