IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 17275 of 2000 Date of Decision: January 8, 2010 M/s Aadhunik Woolleen Mills and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Pawan Kumar Mutneja, Advocate, Mr. M.L. Sharma, Advocate, Mr. Harkesh Manuja, Advocate, for the petitioner(s). Mr. Kamal Sehgal, Addl. AG, Haryana. Mr. K.L. Suneja, Advocate, for the respondent-HUDA Mr. Vikram Chaudhary, Advocate, for the respondent-Municipal Council, Panipat. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This order shall dispose of a bunch of 22 petitions2 as common questions of law and facts are involved. However, facts are being referred from CWP No. 17275 of 2000. This petition filed under Article 226 of the Constitution challenges orders dated 26.6.2000, issued by the Estate Officer-respondent No. 3 directing the petitioners to execute the agreement in the proforma as also to deposit the amount of development charges @ Rs. 200/- per square yard failing which the CWP No. 17275 of 2000 sanction accorded by the Government for release of land was deemed to have been cancelled (P-11 to P-13). The petitioners have also challenged public notice dated 10.11.2000 (P-17) issued by the Haryana Urban Development Authority (for brevity, ‘HUDA’) whereby general public has been informed that those land owners whose land was released by HUDA and they have not deposited the amount of development charges, they are required to deposit development charges with the Estate Officer, HUDA within 15 days of issuance of notice, otherwise their release orders would be deemed to be cancelled, their buildings/factories would be treated as illegal construction and action would be taken against them as per HUDA regulations. A further prayer has been made for directing the respondents not to recover the development charges from the petitioners. The land belonging to the petitioners was sought to be acquired by issuance of notification under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) on 10.5.1989 (P-1). The petitioners filed objections to the acquisition under Section 5A of the Act on 12.6.1989 (P-2 & P-3). Eventually, a declaration under Section 6 of the Act was issued on 9.5.1990 (P-4). However, the land belonging to the petitioners was released from acquisition on 6.5.1992 (P-7, P-8 & P-9) by passing identically worded orders. The order of release makes an interesting reading, which is as under:- “ In the above said matter, you are informed that the Haryana Government is ready to release 2B-0B, 2B-14B of land/construction situated in Urban Estate, Panipat, Sector 6, 7 and 8, Khasra No. 658/1 belonging to Shri Surinder Kumar subject to general conditions. An agreement has to be entered into with the applicant regarding conditions of release and for the released land a 2 CWP No. 17275 of 2000 proportionate amount of development charge has also to be recovered. With regard to the proforma of agreement and rate of development charges, Chief Administrator, HUDA Manimajra (U.T) Chandigarh shall inform separately.” (emphasis added) The next day i.e. on 7.5.1992, award was announced and possession of the land was delivered to HUDA to develop and utilise the land as industrial, institutional, residential and commercial area for Sectors 6, 7 and 8 Panipat. It is significant to notice that the release of the land to the petitioners was subject to the condition of execution of an agreement on the standard form, which was to be duly attested by the First Class Officer. It was clearly stipulated in the release order that a proportionate amount of development charges have to be recovered. The petitioners despite issuance of letter for execution of the agreement did not execute the agreement, which eventually resulted in issuance of notice from HUDA-respondent Nos. 2 & 3 directing the petitioners to execute the agreement on the proforma which was sent along with the communication dated 26.6.2000 (P-11) and also to pay development charges @ Rs. 200/- per square yard, totaling to Rs. 10,80,000/-. It was also clarified that in the absence of payment and execution of the agreement, the sanction order releasing the land would be deemed to be cancelled. Such communications were sent to all the petitioners, as is evident from the letter dated 26.6.2000 (P- 11, P-12 & P-13). However, the petitioners have chosen to contest the aforesaid communication by sending reply, vide letters dated 26.7.2000 (P-14 to P-16). Thereafter, on 10.11.2000 (P-17), a public notice was issued by respondent Nos. 2 & 3 for information to general public stating that those land owners whose land was released by HUDA and who have not deposited the 3 CWP No. 17275 of 2000 amount of development charges, they must deposit the development charges with the Estate Officer, HUDA within 15 days of the notice otherwise the release orders were deemed to be cancelled. The names of the petitioners also figured in the aforesaid public notice. In the written statement the aforesaid broad factual position has not been disputed. However, it has been asserted that the development charges are realised in pursuance to the policies of the State/HUDA as the owners of the released land/property are likely to be benefited from various amenities provided to the land under acquisition. The stand taken by the HUDA is that a huge chunk of land is set apart for development activities apart from spending huge amount on the roads, sewerage and other public amenities. Reference in that regard has been made to the State policies dated 14.8.1996 (R-3/1) and 24.7.2000. We have heard learned counsel for the parties at a considerable length. Mr. P.K. Mutneja, learned counsel for the petitioners has submitted that the area belonging to the petitioners is situated within the municipal limits and at the time when the building was constructed, development charges were paid to the Municipal Committee and, therefore, the petitioners are under no obligation to pay development charges once over again. Learned counsel has further submitted that once the land belonging to the petitioners is released, it is not to be developed by the HUDA-respondent Nos. 2 and 3 and whatever development is to be undertaken, it has to be executed by the petitioners alone. Placing reliance on Section 38 of the Haryana Urban Development Authority Act, 1977 (for brevity, ‘the HUDA Act’), learned counsel has submitted that Section 38 does not contemplate charging any development fee etc. from the owners of the released land. According to the learned counsel, Section 38 only 4 CWP No. 17275 of 2000 talks about charging for the extension of amenities which are to be extended on individual basis. According to the learned counsel, the State Government while releasing the land under Section 48 of the Act in fact was required to compensate the petitioners for incurring expenditure on prosecution of their cases for the release of their land and other damages suffered by the petitioners and, therefore, there is no question of seeking payment of external development charges under the policy. Mr. Kamal Sehgal and Mr. K.L. Suneja, learned counsel for the respondents, however, submitted that the conditions of the release order clearly postulate the payment of development charges as is evident from the perusal of all those orders. In that regard our attention has once again been drawn to the release order dated 6.5.1992 (P-6, P-7 & P-8). It was accordingly required by the petitioners to adhere to the conditions of release failing which they were to face grave consequences of cancellation of release order, especially when they have failed to execute the agreement in terms of the release order. They have emphasised that according to the policies (R-3/1) the external development charges are required to be paid, which is consistent with the conditions postulated in the release order. Merely because the petitioners have not executed the agreement would not mean that they are not liable to pay the external development charges, else they are to face grave consequences of the cancellation of release order. After hearing learned counsel for the parties, the only question which arises for determination is whether the petitioners are liable to pay external development charges. It has remained un-disputed that in the order releasing their land/construction situated in Sector 6, 7 and 8, Urban Estate, Panipat, there is a specific stipulation that such like owners have to execute an 5 CWP No. 17275 of 2000 agreement with the respondents with regard to conditions of release and for release of land a proportionate amount of development charges has to be recovered. The petitioners have not executed any agreement incorporating the conditions of release of land despite the fact that they were aware that in the absence of executing the agreement in accordance with the release order, the release orders were deemed to be cancelled automatically. Obviously, the petitioners have not made any statement going to the extreme of cancellation of release of their land and withdrawal of the release orders. The petitioners cannot reprobate and approbate. Once the order releasing the land has incorporated various conditions then all those conditions are required to be fulfilled by the petitioners. One of the condition is that for the release of land/construction, a proportionate amount of development charges is recoverable and accordingly individual notices for recovery of development charges were firstly issued on 26.6.2000 (P-11, P-12 & P-13) and thereafter even public notice was issued in Panipat Bhaskar (P-17). The agencies like HUDA incurred considerable expenditure by not only developing the land and providing amenities but also by leaving huge area of the total land acquired by it by providing such common utility services such as roads, streets, parks etc. Huge expenditure has also been incurred for providing civic amenities such as drinking water, sewerage, electricity, roads, storm-water drainage etc. In para 2 of the written statement filed on behalf of respondent Nos. 2 and 3 it has been specifically averred that 40% of the total land acquired and given to HUDA for development is left out for providing such like common utility services. The policy of the HUDA dated 14.8.1996 (R-3/1 Colly) is also clear which fixes the development charges for released land and also in respect of cases where change of land use in the Urban Estate/controlled area of the State is permitted. 6 CWP No. 17275 of 2000 According to the policy, the development charges for residential and industrial areas have been calculated and have been made applicable even to the released land. The policy has been further modified on 24.7.2000 (R-3 Colly). The rationale of the policy appears to be that once a piece of land/construction is released from acquisition then the area, which is acquired being appurtenant to the area/construction released would also enjoy the fruit of development and amenities. If the property of the petitioners which has been released, was contiguous to the land/construction which has been acquired, if follows that the petitioners are also bound to get benefit of various facilities which are provided in the form of road, streets, parks etc. They would also enjoy the other civic amenities on which huge expenditure is incurred such as drinking water, sewerage, electricity, roads, storm-water drainage etc. When the development of such a nature takes place in the area then the price of the property also goes up and the petitioners are bound to be benefited in a number of aspects. Therefore, we do not see any irrationality or illegality in imposition of external development charges in pursuance to the aforesaid policies. Even otherwise the aforesaid policies have not been challenged by the writ petitioners. The argument of the learned counsel for the petitioners based on Section 48 of the Act would not require any detailed consideration because no claim for damages on account of proposal to acquire the land of the petitioners have ever been made before any authority nor there are any averments to that effect in the pleadings. Likewise, the argument based on Section 38 of the HUDA Act would also not require any detailed examination because the respondents have categorically admitted that Section 38 of the HUDA Act does not apply. 7 CWP No. 17275 of 2000 An additional argument has been raised in CWP Nos. 17381, 17097, 17377, 17218 and 17315 of 2000, wherein the Municipal Council, Panipat, has filed its written statement. The categorical stand taken is that the land/construction belonging to the petitioner(s) is not situated within the municipal limits of Municipal Council, Panipat. At no stage any site plan was submitted and, therefore, there was no question of sanctioning the same or obtaining any amount/fee/charges in lieu of development charges by the Municipal Council, Panipat. The writ petitions are liable to be dismissed on this ground alone. Therefore, for active misrepresentation on the part of those petitioners of CWP Nos. 17381, 17097, 17377, 17218 and 17315 of 2000, we impose cost of Rs. 20,000/- each. Their cases have also been considered on merit and the issues raised are covered by the instant order. No other argument has been raised. As a sequel to the aforementioned discussion, these petitions fails and the same are accordingly dismissed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) January 8, 2010 JUDGE Pkapoor 8 2 Sr. No.C.W.P. No.Name of the Parties1.16826 of 2000Singla Hotels Pvt. Ltd. v. State of Haryana and others2.16827 of 2000Modern Service Station v. State of Haryana and others3.16828 of 2000Modern Woollen Mills v. State of Haryana and others4.16829 of 2000M/s Panipat Filling Station v. State of Haryana and others5.16907 of 2000Neena Gupta and others v. State of Haryana and others6.17003 of 2000M/s Kishan Chand Jagdish Prasad v. State of Haryana and others7.17004 of 2000M/s R.R. Products v. State of Haryana and others8.17006 of 2000M/s Panipat Woollen Yarn Centre v. State of Haryana and others9.17007 of 2000M/s R.K. Products v. State of Haryana and others10.17051 of 2000M/s Adarsh Weavers v. State of Haryana and others11.17097 of 2000M/s Wooltex and others v. State of Haryana and others12.17115 of 2000M/s Indian Conduit Industries v. State of Haryana and others13.17120 of 2000M/s S.G.R. Textile and Handicrafts v. State of Haryana and others14.17218 of 2000M/s Om Woollen Mills v. State of Haryana and others15.17233 of 2000M/s Brahma Woollen Industries v. State of Haryana and others16.17306 of 2000Ashok Kumar v. State of Haryana and others17.17315 of 2000M/s Shree Ganesh Spinning Mills v. State of Haryana and others18.17325 of 2000M/s Shri Lakshmi Spinning Mills v. State of Haryana and others19.17377 of 2000M/s Sawan Spinning Mills v. State of Haryana and others20.17381 of 2000M/s Surya Woollen Mills v. State of Haryana and others21.17699 of 2000M/s S.D. Processors Private Ltd. v. State of Haryana and others22.17913 of 2000Mohindra Wool Tex (P) Ltd. v. State of Haryana and others (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) January 8, 2010 JUDGE Pkapoor