IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13912 of 2007 Date of decision: 30th October, 2009 Ansal Housing and Construction Ltd. … Petitioner Versus Punjab Urban Development Authority and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. J.K. Sibbal, Senior Advocate with Mr. Sapan Dhir, Advocate for the petitioner. Mr. Dharamvir Sharma, Senior Advocate with Mr. Harit Sharma, Advocate for respondent No.1. Mr. Anil Kumar Sharma, Addl. AG Punjab for respondents No.2 and 3. Mr. Harsh Aggarwal, Advocate for respondent No.4. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Ansal Housing and Construction Limited has approached this Court for issuance of a writ in the nature of mandamus directing the respondents to grant permission for connecting the sewerage line of Ansal Bachittar Enclare, village Kulianwal, Ludhiana with the existing sewerage line of the Municipal Corporation, Ludhiana. Present writ petition has formulated following three questions for consideration of this Court: 1.(a) Whether having accepted external development charges, respondent No.1 PUDA can insist that since sewerage is being maintained by the Municipal Corporation, Ludhiana, therefore, the Developer should directly pay the charges to the Municipal Corporation ? Civil Writ Petition No.13912 of 2007 1.(b) An ancillary question raised is that whether the amount received for external development charges, which included sewerage and storm water treatment, the same is to be paid by PUDA to Municipal Corporation or by the petitioner to the Municipal Corporation for recovering the later from PUDA, along with damages, cost and interest ? 2. Whether sewerage and storm water charges once received can be enhanced or not, if so, the enhanced rates demanded by the Municipal Corporation are to be borne by the end user or by the PUDA, who had once calculated the amount and had received the same from the petitioner ? 3. Whether after grant of license, further directions for establishment of sewerage treatment plant for the improvement, better coordination and for complying with the pollution norms can be issued by the statutory authority or not ? Having formulated the above questions, it will be necessary to recapitulate facts of the case. Petitioners claim themselves to be leading Promoters and Developers of the real estate. They applied for grant of license for developing residential colony in the name and style of Ansal Bachittar Enclave at Village Kulianwal, Tehsil and District Ludhiana. On 15th April, 1998, they were granted license by PUDA respondent No.1. Those conditions of license, which have been debated upon, for ready reference can be culled out as under: “(xii) The promoter shall deposit charges with Municipal Corporation Ldh. for linkage with the main road & Sewerage system of the Municipal Corporation. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX 2 Civil Writ Petition No.13912 of 2007 (iv) The promoter shall pay the external dev Charges leviable under Section 5(5) of the Punjab Apartment & Property Regulation Act, 1955, as and when demanded by the competent authority.” After the license was granted, a demand notice was issued by respondent No.1, calling upon the petitioner to pay external development charges. The break-up of external development charges was also noticed in letter (Annexure P-2). It will be pertinent to notice the following portion of the letter (Annexure P-2): “2. Under Section 5(6) of Punjab Apartments and Property Regulations Act, 1995, the external development Charges have been fixed in the following manner: S. No. Item No. Tentative expenditure @ per acre 1. Sewerage System in disposable 0.40 2. Storm Water Drain 0.55 3. Roads 1.40 4. Common Public & Institutional Bldg 0.80 5. Horticulture and Landscaping 0.20 6. Conservancy Charges 0.05 7. Development of recreational and other infrastructure 1.00 8. Sewerage treatment 0.50 9. Sludge Waste Disposal 0.25 10. City Level Services 1.00 6.15 15% Supervision Charges 92,250.00 Total 7,07,250.15 per gross acre Abovementioned Rs.7,07,250 external development charges have been divided into following three categories: 1. Municipal Corp. Towns and are falling within 15 Kms radius 7,07,250 per gross acre 2. Category (A) Municipal Committee Towns and falling within radius of 5 Kms @ 75% of 1st category 5,30,438 per gross acre 3. Other towns and falling within 5 Kms radius @ 50% of Item No.1. 3,53,625 per gross acre 3 Civil Writ Petition No.13912 of 2007 Thereafter, PUDA called the petitioner to pay Rs.9.50 lakh, its share towards connecting the out call sewer of the colony with PUDA’s Samrala road sewer line. It is not disputed that after the charges were paid by the petitioner, maintenance of sewerage and disposal of storm water was transferred to Municipal Corporation, Ludhiana. Taking this fact into consideration, the Director, Local Government, Punjab had issued a letter to the Commissioner, Municipal Corporation, Ludhiana, wherein it was stated that no amount can be recovered regarding external development works from the Promoter by the Municipal Corporation. The grievance of the petitioner is that even though they had paid the external development charges, and the amount for the cut out sewer to the PUDA, yet the Municipal Corporation, Ludhiana vide letter (Annexure P-7) had demanded Rs.1,02,000/- per acre for providing water and sewerage connection. The letter further says that the maintenance charges for three years are to be paid separately. Vide letter (Annexure P- 8), demand of Rs.1,02,000/- per acre was increased to Rs.2,90,000/- per acre. Respondent No.1 PUDA filed counter affidavit and stated that internal development works are to be carried out by the respondents and the definition of internal development works requires that the petitioner should set up Sewerage Treatment Plant (STP) for treatment of disposal of sewerage and sullage. Mr. Dharamvir Sharma, appearing for the respondent No.1 PUDA, has further placed on record a copy of the communication dated 2nd November, 2006 sent by competent authority of PUDA to the Director, Local Government, Punjab, Chandigarh, which says that an amount of Rs.1,39,48,576/- has been transferred and paid for providing sewerage line to residential colony developed by the petitioner. Copy of the letter dated 2nd November, 2006 is taken on record as 4 Civil Writ Petition No.13912 of 2007 Annexure R-A. Mr. Dharamvir Sharma has further submitted that details of this letter have been given in para 19 of the writ petition and have been accepted in the reply by respondent No.1 PUDA. The stand of Municipal Corporation, Ludhiana is that in case sewerage and storm water facility is to be provided by the Corporation, Developer must pay charges uniformly fixed by the Corporation and it is not their concern whether the petitioner has paid the amount to PUDA or not. When asked, counsel appearing for the Municipal Corporation, Ludhiana, is unable to state whether the amount has been received by the Municipal Corporation, Ludhiana or not. He has prayed for an adjournment. This Court expresses its anguish and pain over the number of adjournments sought by the State and its instrumentalities. When on the last date of hearing case was argued, to give details and instructions, date was sought by the Counsel for PUDA. Today Counsel for Municipal Corporation seeks an adjournment. Various functionaries of the State have failed to coordinate. This case is a classical example, where the right hand does not know what the left hand is doing. The only defence, which the various counsels of the State and Statutory bodies raise, is to put blame on the other functionary of the State. When arrears of cases are mounting, adjournments are no answer. Therefore, this Court proceeds to decide this case, whatever facts are available on the file. During course of arguments, Mr. J.K. Sibbal has referred to various provisions of Punjab Apartment and Property Regulation Act, 1995. It will be necessary to reproduce the provisions relied by the parties to the present writ petition. Section 2 (m), (n), (p) and (r) define development charges, development works, external development works and internal development works. They read as under: 5 Civil Writ Petition No.13912 of 2007 “2. Definitions. – In this Act, unless the context otherwise requires,- XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX (m) “development charges” means the cost of external development works and internal development works. (n) “development works” means internal development works and external development works. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX (p) “external development works” includes roads and road systems, water supply, sewerage and drainage systems, electric supply or any other work which may have to be executed in the periphery of, or outside, a colony for its benefit; XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX (r) “internal development works” means roads, foot- paths, water supply, sewers, drains, tree planting, street lighting, provision for community buildings and for treatment and disposal of sewage and sullage water/ or any other work in a colony necessary for its proper development.” Section 5 of the Act states that before development of any colony and grant of license, permission is to be sought and the authority granting license and permission has to specify what a Developer is required to do and the Developer is bound to execute the work in conformity with the layout of the colony and the design approved by the authorities. Mr. J.K. Sibbal has also referred to Rule 10 of the Punjab Apartment and Property Regulation Rules, 1995 and has stated that every promoter is required to give in detail specifications and designs of sewerage, storm water and water supply schemes with estimated cost of 6 Civil Writ Petition No.13912 of 2007 each. Further he is also bound to give detailed specifications and designs for disposal and treatment of storm and sullage water and estimated costs thereof. Learned counsel submitted that petitioner had submitted the plans, which were approved by the competent authority after holding inquiry under Rule 11 of the Rules. Mr.Dharamvir Sharma, appearing for PUDA, has submitted that the petitioner Developer has not complied with the internal development works and has not installed plant for treatment and disposal of sewerage and sullage water. Furthermore, the amount received by PUDA has been forwarded to the Local Government, Punjab for onward transmission to the Municipal Corporation. Learned counsel appearing for the Municipal Corporation, Ludhiana, as already submitted, is not aware about this. Having heard counsel for the parties, this Court is of the view that the license was issued to the petitioner in year 1998. The request for providing sewerage connection has been made by petitioner, for the first time, on 11th June, 2002 vide Annexure P-5. External development charges were calculated on 11th December, 1998. The Government, suo- motu, to help the promoters, reduced the amount on 14th December, 2001. In 1998, the Government had calculated qua the colony of the petitioner, Rs.7,07,250/- as external development charges for each acre. On 14th December, 2001, this amount was reduced from Rs.7,07,250/- to Rs.3,50,000/-. The demand for deposit has been made by the Municipal Corporation, for the first time, on 12th April, 2004 at the rate of Rs.1,02,000/- per acre along with maintenance charges and road connecting charges. These rates have been revised on 21st October, 2005 to Rs.2,90,000/- per acre. From 1998, when the license was granted and the charges were calculated, things have not remained static. Inflationary pressure has effected everybody, including real estate Developers and 7 Civil Writ Petition No.13912 of 2007 State agencies. To say that once the State has calculated external development charges in year 1998 and reduced it by approximately 50 per cent in year 2001, they cannot ask for the enhanced amount, cannot be accepted in the present scenario, where the prices change every day and inflation hit all stakeholders. If the Government can reduce the charges, it can enhance them also. Therefore, the petitioner is bound to pay to the statutory bodies, according to the enhanced rates, especially in the context, that the possibility, that the petitioner may have charged enhanced price from the allottees cannot be ruled out. Having said that there can be increase in the charges and petitioner is not immune from inflation, the charges which were calculated and paid in 1998 and 2001, will not absolve the petitioner to pay charges which were prevailing on the day facility is to be provided. The next question which this Court is to consider is whether the charges paid by the Developer to respondent No.1 PUDA are to be adjusted by the Municipal Corporation when they have been transferred to Department of Local Government by the PUDA for further payment to Municipal Corporation or petitioner can pay the Municipal Corporation and claim later the amount along with cost, damages and interest from PUDA. In a strict legal sense, petitioner ought to have taken this course. But since this writ petition is pending in this Court since year 2007 and various dates have been taken by all the concerned, to open another round of the litigation may not be advisable. Therefore, it is directed that within three weeks from the receipt of certified copy of this order, respondent No.1 PUDA shall reconcile the accounts with respondents No.3 and 4, and the amount received by respondent No.1 from the petitioner Developer shall be transferred to the Municipal Corporation, Ludhiana respondent No.4. Thereafter, respondent No.4 shall calculate the amount and the balance amount shall be paid by 8 Civil Writ Petition No.13912 of 2007 the Developer to the Municipal Corporation. Thereafter, the sewerage connection shall be provided within two months. At the time of reconciliation of the accounts, PUDA shall also afford an opportunity to the petitioner to put forth his point of view. Thereafter, it will be decided by PUDA whether any sewerage treatment plant is to be provided in the colony by the Developers to comply with the recent demands of time along with issue whether the same is in consonance with the earlier drawings and the permission granted by the Chief Administrator, PUDA. This shall be done within one month after hearing the petitioner and all concerned. With the above directions, present writ petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE October 30, 2009 rps 9