TaxTMI 
TaxTMI 
2018 (3) TMI 1964
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....ar Maroria, AOR, Mr. Rajesh Garg, Sr.Adv., Mr. Uday Gupta, Adv., Ms. Sivani M. Lal, Adv., Mr. M.K. Tripathi, Adv., Mrs. Sarla Chandra, AOR, Mr. Rakesh Kumar-i, AOR, Mr. Apoorva Bhumesh, AOR, Ms. B. Vijayalakshmi Menon, AOR, Mr. A. N. Arora, AOR, Mr. Hiren Dasan, Adv., Mr. Harish Dasan, Adv., Mr. Chand Qureshi, Adv., Mr. Ankur Raghav, Adv. For the Intervener : Mr. Arun Monga, Adv., Ms. Divya Sharma, Adv., Mr. Gopal Jha, Adv. JUDGMENT Uday Umesh Lalit, J. 1. These appeals by special leave are directed against the common Judgment and Order dated 15.12.2014 passed by the High Court of Punjab and Haryana at Chandigarh dismissing Civil Writ Petition No.23769 of 2011 with other connected matters. Appeal arising from Civil Writ Petition No.23769 of 2011 namely Civil Appeal No.8788 of 2015, has been taken as the lead matter and the facts stated therein are dealt with in detail. 2. The aforesaid Civil Writ Petition No.23769 of 2011 was filed by 117landholders for the following principal relief: "a) Issue writ direction or order, especially in the nature of certiorari quashing the entire action of the respondents who invoked Sections 4 & 6 for the alleged public purpos....
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....purchasers viz. builders/private entities. (v) Even after issuance of notification under Section 6 of the Act, the builders/private entities continued approaching the landholders. It was submitted that the landholders were being shown Award Nos.7, 8, 9, 10 and 12, all passed on 09.03.2006 in respect of adjoining villages for the same purpose namely setting up of Chaudhary Devi Lal Industrial Township, where compensation was awarded @ Rs.12.5 lakhs per acre. In all these cases, notifications under Section 4 were issued on 17.09.2004 while declarations under Section 6 were issued on 27.10.2004 and the lands covered under Award Nos. 7, 8, 9, 10 and 12 were i) 114 Kanals 02 Marlas, ii) 68 Kanals 15 Marlas, iii) 43 Biswas, iv) 65 Kanals 08 Marlas and v) 3515 Kanals 01 Marlas respectively. It was submitted that the landholders were thus cornered with the prospect of impending acquisition and the idea that the compensation would be awarded @ Rs.12.5 lakhs per acre and were persuaded to enter into transactions with builders/private respondents transferring their holdings @ Rs.20-25 lakhs per acre. (vi) On 02.08.2007 notices under Section 9 of the Act were issuedcalling up....
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....ng with requisite fees were submitted by various colonizers in respect of an area of about 362 acres. (xi) Around 22.09.2009, approvals of building plans of group housing societies and schemes of private builders came to be granted. (xii) Having come to know that the lands under acquisition were now being utilized for private gain by various builders/colonizers, the farmers started agitation against the process adopted by the Governmental machinery. (xiii) On 29.01.2010 a decision was taken by the State Government in Industries and Commerce Department to close the acquisition proceedings in view of the recommendations of the Inter Departmental Committee dated 26.03.2008 which in turn had been accepted by the HSIIDC. (xiv) The farmers' agitation against the decision of the State Government favouring the builders was widely reported in newspapers on 01.03.2011. The agitation continued beyond August and September, 2011. On 20.09.2011 a request was made by sending communications to various functionaries for registration of FIR in respect of fraud played by the officials of the Land Acquisition Department as well as the Director, Town Planning in acti....
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....calation of prices in last 20 days namely after the issuance of the notices under Section 9 showed that the builders were not only aware but were also sure that the acquisition would be dropped by the State Government. The hike in price was essentially to lure the landholders as after dropping of the acquisition there would be no threat to the landholders. (xxi) On 24.02.2014 the High Court directed the State of Haryana to give details about various acquisitions initiated around the time in question for the same public purpose namely, setting up of Chaudhary Devi Lal Industrial Township. (xxii) Accordingly, on or about 21.03.2014 an additional affidavit was filed on behalf of State of Haryana giving relevant details in a tabular chart. These details appear to be in addition to the lands covered under Awards 7, 8, 9, 10 and 12 of 09.03.2006. The relevant tabular chart was as under:- Details of Sections 4 and 6 notifications along with the Revenue Estates as mentioned in the written statement dated 06.12.2012 Sl. No. Events 912 acres, IMT Manesar 24 acres, IMT Manesar 163 acres, IMT Manesar 3718 acres, IMT Manesar 3510 acres, IMT Man....
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....acres of land stood acquired whereas 688 acres of land covered by Declaration under Section 6 of the Act in the present case was dropped from acquisition. It is relevant to note that in relation to acquisition referred to in Column No.5 vide award dated 24.02.2007 (annexed at page-307 in the Paper book) compensation was assessed at the rate of Rs.12.5 lakhs per acre; identical to one assessed in Awards dated 09.03.2006. (xxiv)The aforesaid petition as well as connected matters were dismissed by the High Court vide its judgment under appeal. It was observed that the landholders had taken no action after their writ petitions were dismissed as infructuous by order dated 09.10.2007 and the present action initiated more than 4½ years after such dropping of acquisition was wholly belated. It was observed: "It is the case of the petitioners, that they were forced to sell their property under the threat of acquisition to the private respondents and thus the sale deeds so executed by them in their favour, deserved to set-aside. However we are unable to agree with the said contention raised by the Ld. Counsel for the petitioners as at no stage did the petitione....
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....Appearing for the appellants in the lead matter, Mr. Dhruv Mehta, learned Senior Advocate submitted: (a) The licences granted by the State Government to the private builders for development, in the face of the fact that the lands were notified for acquisition, were nothing but an abuse of power and such exercise was directly in breach of the relevant policy. In his submission, the policy dated 19.12.2006 issued by the State Government provided that the licences could be granted where the applicants/land owners had applied for licences before the issuance of Notification under Section 4 of the Act and the release could be considered on individual merits of each case. He further submitted that as accepted by the State Government, out of 15 licences granted by the State Government, 8 were granted between the date of issuance of Notification under Section 6 and the date when the acquisition was dropped i.e. on 24.08.2007 and other 7 licences were granted after 24.08.2007. Thus all the licences, as a matter of fact, were granted after the issuance of Notification under Section 6 of the Act. (b) He submitted that the purchases made by the builders in the present c....
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...., learned Senior Advocate. 6. Learned Amicus Curiae initially filed a memo at which stage the interim report of CBI was not filed in Court. After said copy was made available to him pursuant to the Order dated 21.03.2017 he filed three more memos. In his memo dated 28.03.2017 after referring to certain factual aspects as emerging from the interim report of CBI, he submitted :- "6. From all the above, it appears that lands were purchased by Builders during acquisition proceedings and also after acquisition proceedings were dropped on the basis that fresh acquisition proceedings would be initiated. It further appears that the builders in the meantime were working to have the acquisition proceedings dropped and their applications for building licenses were also being processed and the issuance of such licenses themselves became a reason for dropping all proceedings. It does not appear anywhere from the record that the sellers of the lands were aware that the acquisition proceedings would be dropped but it has been alleged by them in the writ petition that they were informed of such acquisition proceedings and were therefore, asked to sell their interests. It would appear t....
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....y on the part of Government officials in the entire process. In such event, not only would transactions within this entire conspiracy be fraudulent, if they are traced to mala fide exercise of the State's power, they would also be against public policy. f. In view of the inordinate increase in the price of land it would not be practical to require the State Government to pay the present consideration or be called upon to acquire these lands and as that would be a drain on the public exchequer. It would perhaps be best to restore status ante insofar as practicable i.e., lands on which constructions have not been made or which have not been plotted and transferred to third party individuals (not builders). In the case of constructions at a nascent stage, it can be determined whether bona fide third party interests have been created and in the absence thereof, status ante could be restored. In the remaining cases, payment of compensation could be directed through payment of consideration to the original landholders as per (b) above. g. The manner in which the amounts could be returned could be in the manner as held by this Hon'ble Court in the case of Uddar Gagan Pro....
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.... d. The compensation payable under the said award would be based on the market value of the land in the same manner as if the award was passed on 24.08.2007. e. The said amounts would be deposited and the landholders would be entitled to withdraw the amount representing the difference between what they actually received from the builders and what they were actually awarded. f. The land would thereupon vest in the State; g. The transferee builders who are the current owners of the land would have a right to seek allotment of the same from the State, consideration for which would be determined at the present days' market value or market value as on such other date as this Hon'ble Court may deem fit. Credit would be given to the builders for the amounts that they had paid to the original landholders and which is adjusted in (e) above; h. In the event that the builders do not wish to purchase the land at such rate, the land may be auctioned by the State; and i. Out of the price secured in the auction the amount paid for the acquisition would be deducted. The actual construction costs of any construction made on the lands would also be adjust....
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..../- 13 16.1.06 M/s Galaxy Colonisers Pvt. 3.656 Acres Three (3) 1, 46, 25, 000/- 40, 00, 274/- 14 23.2.07 ABW Infrastructure Ltd.=Respondent No.3 11.4406 25 Acres Three (3) 9, 72, 46, 500/- 85, 00, 104/- 15 26.2.07 Respondent No.3 1.475 Acres One (1) 1, 18, 00, 000/- 80, 00, 000/- 16 2.3.07 Respondent No.3 0.88958 3333 Acres One (1) 80, 00, 000/- 89, 92, 974/- 17 18.06.07 To 20.08.07 M/s Jassum Towers Pvt. Ltd. 6.46 Acres Seven (7) 4, 88, 00, 000/- 75, 54, 180/- 18 20.6.07 To 21.8.07 M/s Jassum Estates Pvt. Ltd. 13.250 Acres Eight (8) 10, 62, 50, 000/- 80, 18, 868/- 24.08.2007 decision was taken by the State to drop the acquisition proceedings. 19 24.12.07 & 2.8.08 M/s Jassum Towers Pvt. Ltd. 1.3275 Acres Two (2) 1, 59, 50, 000/- 1, 20, 15, 066/- 20 17.2.11 Respondent No.3 0.76875 Acres One (1) 1, 92, 18, 750/- 2, 50, 00, 000/- 21 27.2.11 Respondent No.3 0.025 Acres One (1) 4, 48, 000/- 1, 79, 20, 000/- 22 18.3.11 Respondent No.3 0.76875 Acres ....
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.... so, details thereof. NO 8. Whether the applicant had ever established a colony or is establishing a colony and if so, the details thereof. NO 9. Any other information the applicants like to furnish. The Aditya Buildwell Private Limited, the main applicant company, is in process of converting into a Public Limited Company shortly by name 'ABW Infrastructure Limited. The ABW group of companies are already developing number of shopping cum commercials Malls and in process of developing the Township in Mohali, Chandigarh the total projects more than worth Rs.1000.00 crores are in development in progress." B. ABW Infrastructure Ltd. and its group companies namely; Progressive Buildtech Pvt. Ltd., Sheel Buildcon Pvt. Ltd., Divya Jyoti Enterprises Pvt. Ltd., Beeta Promoters Pvt. Ltd., Ecotech Buildcon Pvt. Ltd. and Jassum Estates Pvt. Ltd., applied for licence to set up a Group Housing Project of 15.35625 acres alongwith Demand Drafts for Rs.20 lakhs towards Scrutiny and Licence fees. Paras 5 and 7 to 9 of the application were:- "5. Whether applicant is income tax payer, if so, the amount of income tax paid during each of the last three years. ....
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....0 (b)Sheel Buildcon Pvt. Ltd. 53, 40, 980.826 (c) NCR Properties Pvt. Ltd. 38, 24, 509.704 (d)Divya Jyoti Enterprises Pvt. Ltd. 2, 08, 91, 978.770 (e)Progressive Buildtech Pvt. Ltd. 2, 05, 66, 820.370 (f) Beeta Promoters Pvt. Ltd. 2, 54, 521.440 (g) Indo Asian Construction Co. Pvt. Ltd. 2, 43, 39, 673.130 (h) Dugman Engineers Pvt. Ltd. 2, 43, 742.600 (i) Miraz Overseas Pvt. Ltd. 18, 12, 337.600 (j) Yorks Hotels Pvt. Ltd. 18, 02, 280.000 (k) Jassum Infrastructure Pvt. Ltd. 65, 78, 935.530 11, 39.44, 106.00 6 Fees paid to State Government 3, 27, 16, 317.00 7 (5 + 6) 14, 66, 60, 423.00 8 Amount paid by Respondent No.3 under Settlement cum Cancellation of Agreement to Sell 119, 69, 50, 000.00 9 (4+7+8) 142, 95, 24, 098.00 10 Profit made by Respondent No.3 (1-9) 8, 00, 31, 203.00 The aforesaid statem....
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....ation amount, shall be payable by 'the Purchaser' to 'the Seller' as per the following schedule:- (1) On or before 30.12.2007 Rs. 2, 00, 000/- (Rs.Two lakhs Only) (2) On or before30.05.2008 Rs.3, 03, 200/- (Rs. Three lakhs three thousand and two hundred only) Balance amount only i.e. the full and final consideration. NOW THIS AGREEMENT OF SALE WITNESSETH AS UNDER:- 1. That the settled price of Rs.7, 03, 200/- (Rupees seven lakhs three thousand two hundred only) for sale of 0.12 acres of land in Village Manesar District Gurgaon Haryana by First Party to Second Party, as mentioned in the preamble shall neither be reduced nor enhanced by either party. 2. That 'the Seller' shall be bound to execute the sale deed/proper documents for the transfer of the land and get the same registered in the name of the second party or their nominees on receiving of the balance consideration as per schedule of payment given above. 3. That all the expenses of the execution and registration of the documents shall be payable and borne by 'the purchasers'. 4. That the actual physical and vacant possession of the above said land shall be deli....
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....o agreed to settle the transaction amicably. NOW THIS AGREEMENT WITNESSETH AS UNDER:- 1. That this agreement shall be effective from the date of signing and shall constitute full and final settlement between the parties of all the respective past and future rights and obligation of parties under agreement to sell dated 9th October, 2007 for sale of 0.12 acres forming part of Rect. No.54 Killa No. 6/1 (3-16), 15/2/1 (2.16), the extent of their 7/48 share i.e. situated at village Manesar, Tehsil & District Gurgaon, Haryana. 2. That 'the Seller' shall pay the settlement amount of Rs.3, 50, 00, 000/- per acre to the purchaser towards full and final settlement between the parties and discharge of all claims against the land as acquired by the second party through agreement to sell dated 9th October, 2007 for sale of 0.12 Acres of land in Village Manesar, District Gurgaon, Haryana. 3. That the said total settlement amount Rs.42, 00, 000/(Forty two lakhs only) shall be paid on or before 31.03.2009 as per the schedule enclosed. 4. That on receipt of full and final settlement amount, the second party hereby completely and expressly waives, releas....
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.... 10,00,000 27.08.2008 3,37,05,000 5 Jassum Infrastructure Pvt. Ltd. Shree Bihari Forgings P. Ltd. 1.3 10.10.2007 Rs.76,05,000 24,00,000 30.08.2008 4,53,00,000 Dasna Steel Pvt. Ltd. .21 10.10.2007 Rs.12,28,500 200000 30.8.2008 75,50,000 6 Miraza Overseas Pvt. Ltd. Arison Builders Pvt. Ltd. 0.4 10.10.2007 Rs.23,44,000 5,00,000 30.08.2008 1,40,00,000 7 Mountvally Estates P. Ltd. Ramdoot Steels P.Ltd. 1 19.10.2007 Rs.58,45,000 10,00,000 30.08.2008 3,60,00,000 Maya Industries 1.13 22.10.2007 Rs.23,20,000 20,00,000 30.08.2008 3,95,50,000 Baba Alloys P. Ltd. 0.4 19.10.2007 Rs.66,04,850 8,00,000 30.08.2008 1,30,00,000 8 NCR Properties Pvt. Ltd. Ritansh Developers and Financing Pvt. Ltd. 1.43 28.10.2007 Rs.83,79,800 25,00,000 30.8.2008 5,00,50,000 9 Progressive Buildtech P. Ltd. Arison Builders Pvt. Ltd 2.25 06.10.2007 Rs.1,31,85,000 42,00,000 30.08.2008 7,87,50,000 Shree Bihari Forging P. Ltd. 1.48 Rs.86,72,800 25....
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....n notified on 05.02.2007. Mr. V. Giri, learned Senior Advocate appearing for respondent No.5 - Flair Realtors Pvt. Ltd. submitted that each writ petitioner had a separate cause of action and therefore must come out and place his individual case and the facts relevant thereto. In his submission in a matter such as the present one, no public law remedy could be invoked and there could be no class action. He further submitted that there was total dearth of pleadings and nothing was alleged or proved as regards element of fraud or mala fides so as to vitiate the transactions in entirety. 14. Dr. A. M. Singhvi, learned Senior Advocate appearing for DLF Home Developers Pvt. Ltd. submitted that his client had purchased 33 acres of land not directly from any of the land owners but from respondent No.3 alongwith requisite licences. According to him, his client purchased the land and the licences when the writ petitions were withdrawn and there was no fetter at all; that his client had paid market price at the rate of Rs.4.5 crores per acre and was bona fide transferee in good faith and that there was no averment either in the High Court or in this Court suggesting that his client was inv....
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....ght to be invalidated as a class action then it could only be done on grounds of mala fides in public law. It was submitted that fraud in terms of section 17 of the Contract Act had to be transaction based and strictly established. He further submitted that the reason given for dropping of the acquisition was that licences in respect of about 360 acres of land were under consideration while disputes were raised in respect of rest of the land. At no stage after the disposal of the petitions by the High Court any grievance was raised by the land owners and they must be deemed to have waived their rights. In his submission, land owners were looking for windfall gains when they were asking for setting aside of all the transactions as a class action and that the writ petition was nothing but an abuse of the process of law. 17. Mr. Narender Hooda, leaned Senior Advocate appearing for an individual namely Shri Arvind Walia who had purchased 11 acres of land, submitted that one Mamraj had sold said land in February, 2005. Along with his written submissions, Mr. Hooda placed on record and relied upon Minutes of the Meeting regarding policy issues held on 07.08.1991. Mr. Sidharth Luthra, ....
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....he above manner, land measuring about 400 acres whose market value at that time was above Rs.4 crores per acre, totaling about Rs.1600 crores, was purchased by the above mentioned criminal conspirators from the innocent land owners for only about Rs.100 crores. Thus, some politicians who were also important functionaries of the State Government, Government Officers and their agents caused a wrongful loss of Rs.1500 crores to the land owners of Village Manesar, Naurangpur and Lakhnoula of District, Gurgaon and corresponding wrongful gain to themselves. 18. That about 444 acres 2 kanal 10 marla of land notified u/S 4 of Land Acquisition Act, 1894 was purchased by the private builders/companies after the date of notification. The details of land purchased by the builders/companies after issue of notification u/Ss 4 & 6 of Land Acquisition Act, is as under: S.No . Name of the Company TOTAL LAND Acre Kanal Marla 1. Pegasus Land and Housing Pvt. Ltd. WZ 172, Palam Colony, New Delhi - 6 14 2. Karma Lakelands Pvt. Ltd., 5 Green Avenue, Vasant Kunj, New Delhi 2 3 6 3. Amtek Auto Limited Plot No. 16, Industrial Area, Rozka Meo....
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....etals Sales Pvt. Ltd. A-21/1 Naraina Indl. Area, Phase II, New Delhi (Seller) 4 4 13 10. Metropolis Realtors Pvt. Ltd., 20-A, Rajpura Road, Civil Lines, New Delhi 18 0 16 Flair Realtors Pvt. Ltd., 20-A, Rajpura Road, Civil Lines, New Delhi 2 5 9 Metropolis Inf. Pvt. Ltd. 20-A, Rajpura Road, Civil Lines, New Delhi 9 0 18 Total 29 7 3 11. PP Realtors Pvt. Ltd. B-15, Freedom Fighter Enclave, Neb Sarai, New Delhi 5 7 17 12. Logical Developers Pvt. Ltd., 17-B, NGF House, Asaf Ali Rd. New Delhi 31 4 9 Sarvodya Buildcon P. Ltd., 17- B, MGF House, Asaf Ali Road, New Delhi 1 7 7 Total 33 3 16 13. Gibbon Propbuild P. Ltd. ECE Hs., 28, KG Mrg. ND 17 2 3 14. M/s Alana Builders & Dev. Ltd. O/oP-39, Basement, NDSE Part II, New Delhi -Dinesh Kumar 2 5 4 15 M/s Frontiers Infs. Dev. P. Ltd. O/o 38-B, Model Town, Phagwara Punjab- Subodh Nayyar 2 0 13 16. M/s Angelique International Ltd. O/o 104-107, Hemkunt Tower, 98, NP, N.D. 19 4 9.5 17. M/s Sukh Shanti Estate P. Ltd. O/o....
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.... Indo Asian Construction Co. Pvt. Ltd. 14acres 7kanal 3marla October, 2004 to November, 2004 21.11.2007 12 Mount Valley Estates Pvt. Ltd 19acres 4kanal 11marla January, 2005 to December, 2005 17.05.2008 20. That investigation has revealed that Shri Atul Bansal, Director of M/s Aditya Buildwell Pvt. Ltd. and its below mentioned groups and associate companies had applied for grant of license to set up a township including group housing in an area of 190 acres in Sector1A, IMT, Manesar, Gurgaon to the Director, Town and Country Planning, Haryana, Chandigarh on 28.12.2006:- (i) Frost Falcon Industries Ltd. Sonepat (ii) Iceberg Industries Ltd. (iii) Mount Valley Estate Pvt. Ltd. (iv) Yorks Hotel Pvt. Ltd. (v) Miraj Overseas Pvt. Ltd. (vi) Galaxy Colonizers Pvt. Ltd. (vii) Dough Man Engineers Pvt. Ltd. (viii) Jassum Infrastructure Pvt. Ltd. (ix) Sheel Buildcon Pvt. Ltd. (x) Progressive Buildcon Pvt. Ltd. (xi) Eco Tech Buildcon Pvt. Ltd. (xii) Indo Asian Construction Co. Ltd. (xiii) Beeta Promoters Pvt. Ltd. (xiv) Divya Jyot....
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....ion of the National Capital Region Planning Board. Chapter IV of the NCR Act deals with "the Regional Plan" which in terms of Section 10 "shall be a written statement and shall be accompanied by such maps, diagrams, illustrations and descriptive matters" and "shall indicate the manner in which the land in the National Capital Region shall be used, whether by carrying out development thereon or by conservation or otherwise". Section 29 of the NCR Act states, "on and from the coming into operation of the finally published Regional Plan, no development shall be made in the region which is inconsistent with the Regional Plan as finally published". According to Section 40, acquisition or determination of any right or interest in the land to give effect to any Regional Plan shall be made by the concerned State. B] The Regional Plan 2001 prepared under the NCR Act was superseded by the Regional Plan 2021, notified on 19.09.2005. Para 17.5 of this Regional Plan 2021 deals with "Zoning Regulations" under which four zones are contemplated namely i) 17.5.1: Controlled/Development/Regulated Zone, ii) 17.5.2: Highway Corridor Zone, iii) 17.5.3: Natural Conservation Zone and iv) 1....
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.... addition to numerous cyber parks are being developed in Gurgaon itself within a radius of 15 kilometers from the International airport in private sector to accommodate the needs of software development units of multinational companies. The availability of high level infrastructure of Airways, Railways, Highways, International Embassies and world famed medical and educational institutions in its close proximity at National Capital of Delhi have become the main factors of attraction for international companies for setting up their business at Gurgaon. In order to meet the demand of foreign investors and also to set up high-tech non polluting industrial units, the Haryana Government initially with the collaboration of Japanese entrepreneurs started setting up Industrial Model Township at Manesar in 1992 through Haryana State Industrial Development Corporation. The said Corporation has developed about 700 hectares land at Manesar and now the developed land is being made available to all entrepreneurs of the world including India. The Haryana Urban Development Authority in public sector and licenced colonizers in private sector through Town and Country Planning ....
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....ve at any time, any other sector for development exclusively by it or by its agencies indicated above." E] The Haryana Act was enacted in the year 1975 to regulate the use of land in order to prevent ill-planned and haphazard urbanization in and around towns and for development of infrastructure sector and infrastructure projects for the benefit of the State of Haryana and for matters connected therewith. Sections 2(c), 2(d) and 2(k) of the Haryana Act define "colony", "colonizer" and "owner" respectively. Section 3 of the Haryana Act deals with "Application for licence" and entitles an owner desiring to convert his land into a colony to make an application to the Director for the grant of licence to develop a colony. Sub-Section (2) of said Section 3 stipulates that on receipt of such application by the owner, the Director shall among other things enquire into the "capacity to develop a colony". Section 3 lays down parameters and guidelines for grant of such licence which include inter alia furnishing to the Director a bank guarantee equal to 25 per centum of the estimated cost of development works and a bank guarantee equal to 37½ per centum of the estimated cost ....
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....r demarcation. It was pointed out that the land under application may not always be in a regular shape or in one sector. No minimum limit on proportion of the total area to the area of the sector could, therefore, be stipulated. 4. SIZE OF THE COLONY: It was decided that except for additional licences for contiguous area/pockets, the minimum area required for the grant of licence shall be 100 acres for an applicant company/group of companies as heretofore. 5. LAND ACQUISITION AND LICENCING: It was pointed out that in urbanisable areas of Development Plan, both HUDA and private sector take steps to acquire land for development. In a number of cases individuals may acquire land and before they are able to apply/get a license, the area may be notified for acquisition of HUDA. It was, therefore, decided that in the interest of equity in cases where applicants have applied for licence or have acquired land but could not apply for licence before the issue of acquisition notification, release of land could be considered on individual merits of each case." G] On 19.12.2006 "Policy for grant of licences and change of land use cases Relied upon by....
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....rcial colony with the internal concurrence of the Government over a land where the owner had purchased it before the notification under Section 4 of the Land Acquisition Act was issued, the release of such land may be allowed before issue of letter of intent. Policy dated 06.03.2000 It has also been observed that the resources of HUDA have reduced in the recent past, and acquisition activity and development of residential sectors has become costly and time consuming affair due to litigation and, therefore, it would be appropriate to assign a greater role to private sector. But as per decision taken by the CMM in their meeting held on 30.07.98 even if the department finds that the application for grant of licence for residential colony fulfils policy/technical parameters, the land is to be released from acquisition only on the recommendations of the Chief Administrator, HUDA. This results into procedural delay. Since the department of Town and Country Planning, Haryana is responsible for integrated development of urban areas, therefore with a view to avoid procedural delays, it is proposed that on the analogy of decision taken by the CMM on 06.01.2000, the land pur....
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.... and projects with involvement of private participation, the directions issued by the Government have laid down, in clear terms, the extent and scope of such private participation. C. In accordance with Section 40 of the NCR Act, the concerned States are expected to give effect to any Regional Plan by taking resort to power of acquisition. The inter-play between exercise of such power of acquisition and private participation by permitting licences to owners/colonizers was a matter dealt with by Policy Guidelines issued by the Government from time to time. In terms of policy statements dated 07.08.1991, 06.01.2000 and 06.03.2000 where applicants had applied for licence or had acquired land but could not apply for licence before the issue of acquisition notification, release of land could still be considered on individual merits of each case. The scope got further restricted by policy statement of 19.12.2006, in terms of para 5 whereof, if the applicants/landholders had applied for licence before the issue of acquisition notification under Section 4 of the LA Act, release of land could be considered on individual merits of each case. As this policy was given effect from 07.0....
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....actor which did weigh while decisions dated 24.08.2007 and 29.01.2010 were taken. A factor which ought to have been discarded in terms of the declared policy statements, became the fulcrum for said decisions. We have therefore, no hesitation in holding that said decisions are inconsistent with and opposed to relevant policy statements. We also reject the submission advanced on behalf of builders/private entities that these decisions were consistent with the Regional Plan under the NCR Act and the Final Development Plan for Gurgaon-Manesar. 23. But the issues raised in the present case go way beyond mere invalidity or illegality of those decisions dated 24.08.2007 and 29.01.2010. What is being projected is that those decisions dated 24.08.2007 and 29.01.2010 were part of a well devised and designed attempt to deprive the landholders and enrich builders/private entities, which would broadly depend upon answers to the following questions: a] Whether the transactions entered into between the landholders and the concerned builders/private entities in the present case could be said to be voluntary and free from any influence. b] Whether the decisions on part of the s....
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....who purchased the concerned lands after initiation of acquisition to prefer an application for licence, the builders/private entities merrily went about purchasing the interest of concerned landholders after such initiation. Most of these companies were incorporated after the acquisition was initiated and had no experience in colonization. Yet substantial and sizeable holding was purchased by them. This is reflective of the intent to cash in on an opportunity made available and garner as much holding as possible. The subsequent transactions of sale by them are also indicative of the attempts to profiteer in the matter rather than any bona fide attempt to develop and colonize the property. (f) Faced with impending acquisition initiated on 27.08.2004, the landholders were persuaded to enter into transactions with builders/private respondents. The Tabular Chart as set out by way of example in paragraph 8 hereinabove shows that the average price was initially in the region of Rs.25 lakhs per acre which rose to Rs.40 lakhs per acre or above after the issuance of declaration under Section 6 of the Act. The price so received was greater than the rate awarded in Awards dated 09.03....
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....4½ crores per acre was paid in respect of land as well as the licences and well after the dropping of the acquisition and withdrawal of writ petitions pending in the High Court. However this price or the rate shows the tremendous difference between the return received by the original landholders and the actual potential of the land. (l) In terms of paragraph VIII of Annexure B to the Final Development Plan for Gurgaon-Manesar Urban Complex the extent of private participation was extremely limited and in terms of relevant policy under the Haryana Act no licence could be issued in case any purchase of land was made after the initiation of the acquisition. Yet the concerned Authorities not only entertained such applications for licence but pendency of such applications was taken as a factor for withdrawal from acquisition. Something which ought to have been rejected and discarded outright became the foundation for decision in favour of builders/private entities. (m) The interim report of CBI in para 21 indicates that objection was taken by HSIIDC and it was prayed that application for licence be rejected. Going by aforesaid paragraph VIII of Annexure B and the....
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....rs. Their choice was limited: to accept the State compensation at the Collector's rate or a better offer given by State-sponsored private builder. There was inequality of bargaining power. The determination of land value was not at all in the control of farmers. They were groping in the dark. They had no clue that the land will be released. They accepted the unreasonable and unfair unilateral terms and lost their land. 80. ... Secondly, it is not a case of challenging the sale deeds for the breach of any bilateral terms and conditions or on the conventional grounds where a question of fact has to be proved. The incidental relief to declare the sale deeds as null and void is an offshoot of the broader issues raised by the petitioners including those hovering around the systematic colourable exercise of power by the State apparatus. A constitutional court while performing its solemn duty as a trustee of the fundamental rights of the citizens shall thus be well within its right to lift the veil and unmask the private object behind an acquisition carried out in disregard to the mandate of Articles 14 and 300-A of the Constitution." 26. This Court affirmed the view taken by ....
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....e to refund the sale consideration received by them may permit the builder to illegally retain the land. Moreover, it may not be practicable in the present fact situation to restore the land to the landowners but they can be duly compensated while restoring the land to the State to use it for notified public purpose. Person whose land is taken for houses for others cannot be rendered homeless and unemployed. This will be sheer exploitation. In view of the conduct of the builder, agreeing with the view of the High Court, we do not propose to allow any interest to the builder while permitting refund/reimbursement to it. From the impugned judgment there is nothing to show that the developments which are now relied upon had taken place on the date of filing of the writ petition. It has been specifically held in para 89 of the impugned judgment that no development had taken place till the judgment of the High Court. Any subsequent transactions or development are of no consequence for rights of parties. Any subsequent transactions entered into by the builder cannot be taken into account and are hit by the principle of lis pendens. In any case it was for the builder to inform the third pa....
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....to recover the consideration paid to the owners but will be entitled to reimbursement as indicated hereinafter. Creation of any third-party rights by the builder also stands quashed. 33.5. The sale consideration paid by the builder to the landownerswill be treated as compensation under the award. The landowners will not be required to refund any amount. The landowners who have not received compensation will be at liberty to receive the same. The landowners will also be at liberty to prefer reference under Section 18 of the 1894 Act within a period of three months, if such reference has not been earlier preferred. 33.6. The builder will be entitled to refund/reimbursement of anypayments made to the State, to the landowners or the amount spent on development of the land, from HUDA on being satisfied about the extent of actual expenditure not exceeding HUDA norms on the subject. Claim of the builder will be taken up after settling claim of third parties from whom the builder has collected money. No interest will be payable on the said amount. 33.7. The third parties from whom money has been collected by thebuilder will be entitled to either the refund of the....
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....e compulsory purchase orders or scheme depending on them......." b] In Royal Orchid Hotels Limited and Another v. G. Jayarama Reddy and Others (2011) 10 SCC 608, this Court was called upon to consider question whether land acquired by the State Government for specified purpose namely Golf-cum-Hotel Resort could be transferred to a private individual. The observations in paragraph 38 are relevant for the present purposes:- "38. The courts have repeatedly held that in exercise of its power of eminent domain, the State can compulsorily acquire land of the private persons but this proposition cannot be overstretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property with a view to favour private persons. It needs no emphasis that if land is to be acquired for a company, the State Government and the company is bound to comply with the mandate of the provisions contained in Part VII of the Act. Therefore, the Corporation did not have the jurisdiction to transfer the land acquired for a public purpose to the companies and thereby allow them to bypass the provisions of Part VII. The di....
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....st.' Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act." ......... 49. Before concluding, we consider it necessary to reiterate that the acquisition of land is a serious matter and before initiating the proceedings under the 1894 Act and other similar legislations, the Government concerned must seriously ponder over the consequences of depriving the tenure-holder of his property. It must be remembered that the land is just like mother of the people living in the rural areas of the country. It is the only source of sustenance and livelihood for the landowner and his family. If the land is acquired, not only the present but the future generations of th....
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....ining the benefit is not a wrongdoer" and "even though he may have received [it] honestly in the first instance". (Schock v. Nash 732 A 2d 2017 (Delaware 1999), A 2d, 232-33.) 154. Unjust enrichment occurs when the defendant wrongfullysecures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. 1943 AC 32, Lord Wright stated the principle thus: (AC p. 61) "... Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of the common law which has been called quasi-contract or restitution." 155. Lord Denning also stated in Nelson v. Larholt (1948) 1 KB 339 as under: (KB p. 343) "... It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now....
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....el is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders." 30. As held in State of Punjab v. Gurdial Singh (Supra) when a custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, such exercise is nothing but colourable exercise of power and that the power of the State to acquire lands of private persons compulsorily cannot be overstretched to legitimize a patently illegal and fraudulent exercise undertaken to favour certain private persons. This principle has been followed consistently. While dealing with fact situation arising in the context of exercise of power under the provisions of the Act and its interplay with the power under the provisions of the Haryana Act and the concerned policies, the observations of this Court in the decision in Uddar Gagan (supra) are crucial. They cull out principles that entertaining an application for releasing of land in favour of a builder who came into picture after acquisition had been initiated am....
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....pable conclusion, therefore, is that there was an unholy nexus between the governmental machinery and the builders/private entities in devising a modality to deprive the innocent and gullible landholders of their holdings and jeopardize public interest which the acquisition was intended to achieve. Mr. Dhruv Mehta, learned Senior Advocate is right in his submission that the entire mechanism was deliberately employed so that gullible landholders could be deprived of their holdings by a set of builders/private entities and after having seen that the desired result was achieved, the acquisition was dropped and later completely withdrawn. The decisions on the part of the State arrived at on 24.08.2007 and 29.01.2010 were clearly a result of fraud on power and cannot be said to be bona fide exercise of power. In our view, the initiation of class action and filing of Writ Petition in the present matter was perfectly justified and we reject all the submissions made by the learned Counsel appearing for various builders/private entities. 32. We thus hold that: a] The transactions entered into between the landholders and the concerned builders/private entities in the present case....
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....d objective is a pointer in the direction that there was nothing wrong with the initiation but somewhere along while the process was on, it was completely hijacked by vested interests. We cannot, therefore, grant mere declaration invalidating the transaction and grant relief of restoring status ante. The real and substantial relief would be in restoring the situation where the process of acquisition is made free from such supervening vested interests and is enabled to achieve the objective that the acquisition was intended to sub-serve. 34. At this stage an aspect needs elaboration and clarification. In Uddar Gagan (supra) the proceedings for acquisition under the Act had culminated in passing of an award. After the declaration of award, the lands were withdrawn from acquisition under the provisions of Section 48 of the Act. In terms of the directions issued by this Court in paragraph 33 in Uddar Gagan (supra) the withdrawal under Section 48 of the Act was set aside and the acquisition and award were sustained by this Court. In essence therefore, the lands in question continued to be under acquisition and appropriate directions were thereafter passed by this Court adjusting the ....
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....nsation under the Act will be paid by taking the date of the order of the learned Single Judge of the High Court i.e. 22-2-2001." Thus, in cases where there was no valid acquisition but the land was taken possession of and developed, restoration of land to the landholders was not found to be the appropriate, adequate and complete relief and this Court directed that process of acquisition be initiated taking or treating certain date to be the relevant date for initiation of the acquisition. If the power can go to the extent of directing acquisition in such manner, in a case where an acquisition having been properly and validly initiated if the supervening circumstances show that there was complete fraud on power in dropping the acquisition, can the power of the superior court not extend to/not be extended for passing appropriate directions to complete the acquisition and sub-serve the public interest. But for such fraud on power, the matter in the present case was ripe for pronouncement of award when the acquisition was dropped just two days before the date of pronouncement. All the steps leading to the publication of date for pronouncement of award having been validly and ....
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....ons were entered into, as a result of dropping of the acquisition, those land holders are presently in occupation without there being any cloud of acquisition. If we restore status ante where the entirety of 688 acres of land continues to be under acquisition, the interest of such landholders is bound to be put to some prejudice. Those landholders are not parties to this litigation, nor their interest in any manner, is represented in the proceedings. They would now be visited with the prospect of losing their holdings. Those who sold away their holdings to the builders/private entities after the acquisition was initiated, naturally would not be prejudiced at all nor can the builders/private entities who purchased the land after the land was initiated can put up a plea of prejudice. However those who had never sold the holdings and continued to face the prospect of acquisition will certainly be put to prejudice. It is possible that some such landholders may have sold away their holdings or may have applied and secured licences for construction. In cases, where third party interests have thus intervened, there would be some more concern. 38. The relief to be granted in the matter ....
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....er in subsequent transaction must restore such benefit, an exception has to be made in favour of individual purchasers of flats or apartments who are being left undisturbed while moulding the relief. Any payments made by them can be adjusted towards the amounts payable to the colonizer and their possession can be regularized by HUDA/HSIDC on suitable conditions by making allotment to them. This aspect will stand covered by directions issued hereafter. 39. Having bestowed our attention to various competing elements and issues we deem it appropriate to direct: (a) The decisions dated 24.08.2007 and 29.01.2010 referred to hereinabove are set aside as being brought about by mala fide exercise of power. In our considered view, those decisions were clear case of fraud on power and as such are annulled. (b) The decision dated 24.08.2007 was taken when the matters were already posted for pronouncement of the award on 26.08.2007. Since all the antecedent stages and steps prior thereto were properly and validly undertaken, and since the decision dated 24.08.2007 has been held by us to be an exercise of fraud on power, it is directed that an Award is deemed to have been p....
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....till entitled to something more than what they had received from the builders/private entities, the differential sum shall be made over to them by the State of Haryana towards acquisition of their interest in the lands in question. If however, what the landholders had received towards consideration from the builders/private entities is found to be in excess of what is awarded by the Reference Court, the remainder shall not be recovered from them. (g) Consistent with the directions issued by this Court in Paragraphs 33.6 and 33.7 in Uddar Gagan (supra), the builders/private entities will be entitled to refund/reimbursement of any payment made to the landholders or the amounts that had been spent on development of the land, such payments shall be made by HUDA or HSIDC on being satisfied about the extent of actual expenditure not exceeding HUDA or HSIDC norms on the subject as the case may be. Refund will however be in respect of amount at which the landholders sold the land and not of subsequent sales. As regards subsequent transactions, the subsequent purchasers will have remedies against their respective vendors. Claims of builders/private entities entitled to refund will ....