Case: M/S. Ansal Properties &amp; Industries Ltd Vs. State Of Haryana

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 in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities". The Court in Para 33 held as under: "Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term "development works". They come within the purview of the term "amenities". Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification whereafter, the same is required to be handed over to the Government or the local authority as the case may be, free of cost." 31. Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence 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 land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. In the present case, the respondent No. 2 by letter dated 11.01.1988 informed the appellant Company that it was required to pay 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. 61,000/per gross acre towards the construction of internal community buildings. It was also submitted in the said representations by the appellant that the Director had wrongly included the above said amount and the said demand was not only unjust and arbitrary but also contrary to licence agreement and also against the provisions of the Act and the Rules framed thereunder.So far the contentions with regard to the maintainability of the writ petition is concerned, we are not impressed and persuaded with the aforesaid contentions as according to the respondent themselves, the aforesaid demand is being made within the parameter and ambit of the provision of section 3(3)(a)(iv). That being the position, the demand made according to the respondent is a statutory demand and therefore challenge to such a demand could always be raised by the appellant by filing a writ petition as such a demand is sought to be protected and supported by way of statutory provision.16. Even if the appellant has taken up the plea that such a demand is not supported by the statutory provisions and is in fact in conflict with them, even then the issue pertains as to whether or not such a demand could be made and supported by the said provisions, in which case, a writ petition is competent and maintainable and the plea raised by the respondent therefore with regard to the maintainability of the petition is only to be rejected which we hereby do.17. Section 3(3)(a)(iv) of the Act is the relevant provision and the merit of the claim and repudiation thereof is based on the interpretation of the said provision. It was pointed out on behalf of the appellant that 49 plots have been given by the appellant developer to the Government as community sites. Section 5 of the Act enumerates that colonizer would deposit 50% of the amount realised from time to time by him from the plot holders within the period of 10 days of its realization in a separate account to be maintained in 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 provision of Section 3(3). The comparative reading of the provisions of Section 3(3)(a)(iv) and(b) of clause (1) of the Licence Agreement would clearly show that theis required to construct at his own cost schools, hospitals, community centres and other community buildings or may get the same constructed by any other institution or individual. The developer also has the option 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 would 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.19. The said provision, therefore, gives three options for construction of such community centres and facilities like schools, hospitals, community centres and other community buildings. Such centres and buildings could be constructed by the developer himself or he may get the same constructed by any other institution or individual whereby such individual would be able to utilize the said building. In case the developer fails to exercise either of the aforesaid two options, a third option is also open to the developer under which he would transfer the said land, where the community facilities are to be established, free of cost to the Government in which case such schools, hospitals, community centres and community buildings could be constructed either by the Government itself or the said land could be transferred by the Government to any person or institution including a local authority on such terms and conditions as the Government may deem fit. The aforesaid provision is clear and explicit and there is no ambiguity in it. The only question therefore, which arises herein is, in a case where the land is transferred to the Government free of cost and when such schools, hospitals, community centres and community buildings are to be constructed either by the Government or any agency appointed by the Government whetherthe charges for internal community buildings isalso required todeveloper.20. It was submitted by the counsel appearing for respondent No. 2 that the demand is made by the State Government as external development charges although the same is actually for making internal community buildings 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(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 internal community buildings when the land is transferred to the Government free of cost. No such statutory basis could be shown either in the statute or in the licence agreement. When a specific question was put as to whether the amount was demanded towards internal community buildings or external development charges, the learned counsel, was constraint to admit that although the said amount was being demanded towards external development works but in fact the same was being demanded from the appellant towards internal community buildings which were required to be constructed by the appellant. There is no dispute with regard to the fact that the developer of the colony, namely the present appellant has carried out all the internal development works as required to be done which is statutorily provided for. A part of the community centre has also been constructed by the developer themselves but the entire community centre could not be developed by it or through its agencies and therefore the land allocated for the remaining community buildings/development have been transferred to the Government free of cost.22. Since the land has been given free of cost, it is now open for the State Government to get the remaining community buildings constructed either by themselves or through any agency or institution or individual at its cost in terms of the provisions of the Act, in which case the terms and conditions could be laid down by the Government for such community buildings, to be constructed on the land which is transferred to it by the appellant free of cost. The Government cannot in law demand that the buildings on the said lands which is to be transferred to them free of cost should also be constructed by the appellant and then transfer the land to them free of cost along with the construction thereon and on failure to construct to pay for the cost of construction. That would in fact be a case of an illegal and unauthorised demand as it has no statutory mandate. The respondent cannot demand transfer of the land free of cost and also the construction cost of the facilities to be provided in the said land.23. When the provisions of Section 3(3)(a)(iv) are analysed, it would be apparent that the word used in the said provision is "land" and it has been specifically mentioned therein that if the colonizer does not construct the community buildings and facilities 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 Governments 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 the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statue.The aforesaid contention apparently arises out of the complete misreading of the aforesaid provision. The responsibility regarding construction of community centres and other community buildings could be discharged by adopting any of the three options as mentioned hereinbefore and each one of such options is an independent option and one cannot be connected and related with the other. We cannot read the provision relating to construction at the own cost of the developer the schools, hospitals, community centres and other community buildings on the land set apart for this purpose, into an independent alternative provision relating to transfer of such land to the Government free of cost. The aforesaid option given to the developer to construct the community centres and other community buildings at its own cost is when he can utilize himself manage it. Therefore, we cannot read the aforesaid provision in the manner sought to be read by Mr. Chaudhary, for reading by adding certain words in the aforesaid manner does not appear to be the intention of the legislature while enacting the aforesaid legislation, for otherwise the legislature would have explicitly said so in the body of the main part of the section itself.28. Therefore, we not only reject the preliminary objections raised by the respondent No. 2 in this matter, but we also reject his contention that the aforesaid demand of Rs. 61,000/per gross acre is permitted under the provision of Section 3(3)(a)(iv) of the Act.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 in the Rules or in any policy framed by the Government could be brought to our attention. Therefore, what we were required to consider was only the explicit provision of Section 3(3)(a)(iv) of the Act and the rules framed thereunder, which are extracted herein before in terms of which we find no obligation on the part of the appellant to pay for the construction of internal community buildings which was being demanded by the appellant as external development charges. Charges for construction of internal community buildings can never be equated with the external development charges, so the demand itself was illegal. The view taken by us also derive support from the judgment of this Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, [(2003) 5 SCC 622] wherein it was held that construction of schools, hospitals and community centres and other community buildings does not come within the purview of the term "development works" as the same come within the purview of the term "amenities".Since the respondent No. 2 sought to justify the demand made on the ground that such demand is justified as internal community building, we have no other option but to hold that such demand could not have been made even as internal community buildings for no such power and jurisdiction was vested in the Government to make such a demand for the simple reason that there was neither any statutory support nor any policy decision in support of the same. Even in the Licence Agreement, nothing was contemplated to the effect that in addition to the liability to transfer the land set apart for the said buildings to the Government free of cost, on the contingency mentioned in the statue and relied in the Licence Agreement, the licensee isalso required topay 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 land set apart for the said purpose is transferred to the Government free of cost. Therefore there was a protest and demur on the part of the petitioner against the aforesaid demand.33. In the case of Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants Assn., [1988 Supp SCC 55], it was held by this Court that in order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case.34. It is thus established that the appellant on receipt of the demand issued by respondent No. 2 raised this objection regarding the charge and the demand made and the payment which was made by the appellant was due to the threat issued by respondent No. 2 that on failure of the appellant to pay the same its licence would stand cancelled. Such demand was made by the appellant under protest as aforesaid. Therefore, the principle of waiver and acquiescence will have no application in the present case and therefore we reject the said contention of the learned counsel appearing for respondent No. 2.