CWP No.2805 of 2008 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 2805 of 2008 Date of Decision: 26 - 11 - 2009 Barmalt (India) Pvt. Ltd. ....Petitioner v. State of Haryana and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Arun Jain, Sr. Advocate with Mr.Vishal Goyal, Advocate for the petitioner. Mr.Sunil Nehra, AAG, Haryana for respondent No.1. Mr.Raman Gaur, Advocate for respondents No.2 and 3. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner-company has filed the present writ petition assailing the impugned demand of Rs.2,81,46,805/- on account of external development charges. These external development charges have been raised vide demand notices dated 3.12.2007 and 6.2.2008, Annexures P12 and P14 respectively. Since the controversy is under narrow compass, therefore, facts which are necessary are stated. The land on which the petitioner-company CWP No.2805 of 2008 [2] is having its factory, was notified for acquisition under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred as, `the Act'). Petitioner-company had filed objections under Section 5 of the Act and the Government agreed to release land of the petitioner-company on 17.1.1985. Clause 2(a) of the agreement executed on 5.12.1984 read as under:- “(a) That the Promisee shall pay proportionate development charges which shall be a first charge on the said land as and when required and as determined by the Director in respect of the external development works which may be carried out in the area for the benefit of the said land.” During the pendency of writ petition, Government of Haryana issued another policy on 8.7.2002 (hereinafter to be referred as `2002 Policy'). It is not disputed that case of the petitioner fall under para 3 of the policy. Para 3 of 2002 Policy read as under:- “3. Review of development charges in respect of released land only:- In the case of released land it has been decided that full development charges as intimated vide office letter No.22860- 72 dated 14.08.96, may not be charged. In such cases it has been decided that internal development charges (I.D.C.) may not be charged and external development charges may be recovered at the following rates:- S.No. Size of land Zones Rates of E.D.C. 1. Upto 75 sq. yd. In all three zones Rs.100/- per S. yd. 2. From 75 sq. yd. High potential zone Rs.150/- ” To 500 sq. yd. Medium potential Rs.125/- ” Zone, Low potential Zone Rs.100/- '' CWP No.2805 of 2008 [3] 3. More than 500 High potential zone Rs.200/- ” sq. yd. Medium potential Rs.175/- ” Zone, Low potential Zone Rs.150/- '' These development charges will be recovered as follows:- (i) 25% before the land is released. (ii) 75% in six annual installments along with 10% interest per annum. These facilities will also be given to the old cases where beneficiaries have not paid the development charges or have partly paid the development charges which will be adjusted against the amount recoverable as per the above said rates. These development charges will be valid upto 31.12.2002 after which simple interest @ 10% will be added per annum.” On the last date of hearing, Accounts Officer, Estate Office-II, HUDA, Gurgaon submitted a calculation chart regarding the amount payable by the petitioner-company. For facility of reference calculations furnished to this Court are reproduced below:- Total (EDC) cost As on 31.12.02 (As per HUDA policy dt. 08.07.02) Rs.1,29,89,350.00 Paid 13.10.1997 =Rs.601991.00 Paid 06.02.2001 =Rs.2500000.00 Rs.31,01,991.00 Rs.98,87,359.00 Delay interest @ 14% from 01.01.03 to 31.12.2005 on Rs.98,87,359.00 (3 years) Rs.41,52,691.00 Delay interest @ 12% from 01.01.06 to 31.3.09 on Rs.98,87,359.00 (39 Months) Rs.38,56,070.00 Delay interest @ 15% from 01.04.09 to 31.12.09 on Rs.98,87,359.00 (9 Months) 11,12,328.00 Total recoverable 1,90,08,448.00 CWP No.2805 of 2008 [4] Mr.Arun Jain. Senior Advocate appearing for the petitioner-company state that as per para 3 of 2002 Policy, after Rs.200/- per square yards are paid as external development charges, only 10 per cent simple interest can be added per annum. Therefore, as per calculation charge an error has been committed by the respondents to charge 14 per cent, 12 per cent and 15 per cent interest for different periods. To controvert this, Mr.Raman Gaur has stated that 2002 Policy is to be read along with policy dated 14.8.1996 (hereinafter to be referred as, `1996 Policy') which has been attached as Annexure R3/1 with the written statement. 1996 Policy regarding old cases read as under:- “Old Cases i) 25% within 30 days from the date of communication. ii) Balance 75% in lump-sum within 120 days of the date of communication without interest. Or In 4 equal annual instalments along with interest @ of 15% p.a. or such higher rate as may be decided by the State Govt./ Authority from time to time. In case the payment is not made in time penal interest @ 18% p.a. Shall be leviable as per the policy of the Authority or such higher rate of interest as may be decided by the State Govt./Authority from time to time. You are, therefore, requested to take necessary action recover the development charges from the released land and the cases of change of land use in the fresh cases as well as old cases according to the above decision of the Authority. CWP No.2805 of 2008 [5] You are also requested to send the statement of old cases in the placed below Performa within one month where lands has been released and the change of land use has been allowed so that the development charges are worked out according to the decision of the Authority and intimated to you for its recovery from beneficiaries.” Mr.Jain has stated that if 10 per cent interest is applied to the calculation chart furnished by the Accounts Officer, then the amount which is to be paid as on 31.12.2009 comes to Rs.1,68,08,510/-. He submitted that this amount shall be paid on or before 31.12.2009 by the petitioner- company. Regarding the remaining amount which comes to Rs.22 lacs, there is a dispute between the parties regarding the rate of interest to be applied. Counsel for the parties are in agreement that for determination of the amount due, the matter can be referred to the Arbitrator. In Civil Writ Petition No.8685 of 2008, the Chief Administrator, Haryana Urban Development Authority appeared before this Court and made a statement regarding amicable resolution of the dispute where HUDA is a party. It will be apposite here to reproduce a portion of the statement made by the Chief Administrator:- “It is further submitted that where there is delay in payment, according to Schedule, and in case the allottees are ready to make the payment, to facilitate the same, Haryana Urban Development Authority has adopted a policy that after April 2000 simple interest will be charged earlier thereto compound interest is liable to be paid. Mr.Gupta states that CWP No.2805 of 2008 [6] necessary policy will be formulated qua the interest which is to be calculated and charged before 2000 so that Permanent Lok Adalat is able to arrive at amicable resolution of the dispute. Mr.Gupta has further stated that in those cases where recovery of the amount has been stayed by this Court and cases are pending for last more than three years, the concerned officer of the Haryana Urban Development Authority will be authorisied to waive off penal/compound interest and allottee/housing society will be provided an opportunity to pay the amount in instalments. He has further submitted that in all other cases where plots have been resumed taking into consideration that dispute ought to be resolved Haryana Urban Development Authority will adopt a positive approach.” Copy of the order dated 16.11.2009 passed in Civil Writ Petition No.8685 of 2008 is taken on record. The parties are also in agreement that any retired Judge of this Court who is a member of Permanent Lok Adalat may be appointed as Arbitrator. Accordingly, the Senior Most Presiding Judge of the Lok Adalat may himself act as an Arbitrator or assign the matter to any other Judge who is a member of Permanent Lok Adalat. The Arbitrator shall fix his own remuneration. The remuneration of the Arbitrator shall be paid by the petitioner-company. The Arbitrator shall take into consideration Annexure P16, 2002 Policy and Annexure R3/1, 1996 Policy along with order dated 16.11.2009 passed by this Court in Civil Writ Petition No.8685 of 2008. The Arbitrator shall decide the matter within two months from the date of receipt of certified copy of this order. The parties are also in agreement that decision of the CWP No.2805 of 2008 [7] Arbitrator shall be binding upon them. With these observations, the present writ petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) November 26, 2009. JUDGE RC