# M/S. ANSAL PROPERTIES & INDUSTRIES LTD v. STATE OF HARYANA & ANR

- **Citation:** [2009] 1 S.C.R. 553
- **Court:** Supreme Court of India
- **Decided:** 2009-01-23
- **Case number:** Civil Appeal No. 8186 of 2001
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-ansal-properties-industries-ltd-v-state-of-haryana-anr-25436
- **Pages:** 32

## Headnote

[2009] 1 S.C.R. 553
-......
M/S. ANSAL PROPERTIES & INDUSTRIES LTD.
A
v.
STATE OF HARYANA & ANR.
(Civil Appeal No. 8186 of 2001)
JANUARY 23, 2009
8
[R.V. RAVEENDRAN AND DR. MUKUNDAKAM
"-
;..
SHARMA, JJ.]
Urban Development:
c
Haryana Development and Regulation ot Urban .Areas
Act, 1975 - s. 3(3)(a)(iv) - Haryana Development and
Regulation of Urban Areas Rules, 1976 - rr.4, 5 and 11 -
Demand on account of construction cost of Internal
- .
community buildings, when land transferred by colonizer to
D
Government free of cost - Held: There is no 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 either in the
statute or in the licence agreement- Since the land was given
E
free of cost, it was open to the Government to get the
remaining community buildings constructed either by
themselves or through any agency or institution or individual
,. i
at its cost - Government cannot demand that the buildings
on the said lands which were transferred to them free of cost
should also be constructed by the colonizer/developer and
F
then transfer the land to them along with the construction
thereon and on failure to construct, to pay for the cost of
construction -
That would be illegal and unauthorised
demand as it has no statutory mandate - Word used in s.
3(3)(a)(iv) is "land" - The Government's claim is therefore
G
~ .........
restricted to lands which the colonizer failed to develop as
community centres - On facts, colonizer on receipt of the
demand letter raised objection regarding the charge -
Payment by colonizer was due to the threat of cancellation of
553
H
554
SUPREME COURT REPORTS
[2009) 1 S.C.R.
A its licence - Payment was thus made under protest -
Therefore, principle of waiver and acquiescence would not be
applicable - Waiver/acquiescence - Principle of.
Interpretation of statutes: Reading a statute - Held: Court
8 cannot read anything into a statutory provision which is plain
and unambiguous - Language employed in a statute is
determinative factor of legislative intent - When language of
enactment is clear and unambiguous, it would not be proper
for courts to add any words thereto and evolve some
legislative intent, not found in the statute.
c
Waiver and acquiescence - Principle of - Applicability
- Held: 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
o no waiver- Estoppel and waiver are questions of conduct and
must necessarily be determined on the facts of each case.
The respondent No. 2, Director, Town and Country
Planning by letter dated 11.01.1988 informed the appellant
E 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 included Rs. 61,000/- per gross acre on account of
internal community buildings for which no recovery
F should be made from the plot holders. Under letter dated
7 .10.1993, the appellant- Company was informed that
before its licence could be considered for renewal, the
appellant Company was required to pay the charges.
Subsequently on 4.05.1994, respondent No. 2 issued
G letter to the appellant informing that the licence of the
appellant would be renewed only after the deposit of the ·
amount demanded. Aggrieved by these letters, the
appellant Company made several representations to
respondent Nos. 1 and 2 contending that as per the
H licence agreement and also as per the provisions of the
,
..
.,.... '
..
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 555
HARYANA & ANR.
.. """!'
Haryana Development and Regulation of Urban Areas
A
Act, 1975 and the Haryana Development and Regulation
of Urban Areas Rules, 1976, the appellant Company was
not liable to pay the amount of Rs. 61,000/- per

## Text

_Characters 0–39,941 of 61,828. This is a partial read: ask again with offset=39941 for what follows._

[2009] 1 S.C.R. 553
-......
M/S. ANSAL PROPERTIES & INDUSTRIES LTD.
A
v.
STATE OF HARYANA & ANR.
(Civil Appeal No. 8186 of 2001)
JANUARY 23, 2009
8
[R.V. RAVEENDRAN AND DR. MUKUNDAKAM
"-
;..
SHARMA, JJ.]
Urban Development:
c
Haryana Development and Regulation ot Urban .Areas
Act, 1975 - s. 3(3)(a)(iv) - Haryana Development and
Regulation of Urban Areas Rules, 1976 - rr.4, 5 and 11 -
Demand on account of construction cost of Internal
- .
community buildings, when land transferred by colonizer to
D
Government free of cost - Held: There is no 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 either in the
statute or in the licence agreement- Since the land was given
E
free of cost, it was open to the Government to get the
remaining community buildings constructed either by
themselves or through any agency or institution or individual
,. i
at its cost - Government cannot demand that the buildings
on the said lands which were transferred to them free of cost
should also be constructed by the colonizer/developer and
F
then transfer the land to them along with the construction
thereon and on failure to construct, to pay for the cost of
construction -
That would be illegal and unauthorised
demand as it has no statutory mandate - Word used in s.
3(3)(a)(iv) is "land" - The Government's claim is therefore
G
~ .........
restricted to lands which the colonizer failed to develop as
community centres - On facts, colonizer on receipt of the
demand letter raised objection regarding the charge -
Payment by colonizer was due to the threat of cancellation of
553
H
554
SUPREME COURT REPORTS
[2009) 1 S.C.R.
A its licence - Payment was thus made under protest -
Therefore, principle of waiver and acquiescence would not be
applicable - Waiver/acquiescence - Principle of.
Interpretation of statutes: Reading a statute - Held: Court
8 cannot read anything into a statutory provision which is plain
and unambiguous - Language employed in a statute is
determinative factor of legislative intent - When language of
enactment is clear and unambiguous, it would not be proper
for courts to add any words thereto and evolve some
legislative intent, not found in the statute.
c
Waiver and acquiescence - Principle of - Applicability
- Held: 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
o no waiver- Estoppel and waiver are questions of conduct and
must necessarily be determined on the facts of each case.
The respondent No. 2, Director, Town and Country
Planning by letter dated 11.01.1988 informed the appellant
E 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 included Rs. 61,000/- per gross acre on account of
internal community buildings for which no recovery
F should be made from the plot holders. Under letter dated
7 .10.1993, the appellant- Company was informed that
before its licence could be considered for renewal, the
appellant Company was required to pay the charges.
Subsequently on 4.05.1994, respondent No. 2 issued
G letter to the appellant informing that the licence of the
appellant would be renewed only after the deposit of the ·
amount demanded. Aggrieved by these letters, the
appellant Company made several representations to
respondent Nos. 1 and 2 contending that as per the
H licence agreement and also as per the provisions of the
,
..
.,.... '
..
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 555
HARYANA & ANR.
.. """!'
Haryana Development and Regulation of Urban Areas
A
Act, 1975 and the Haryana Development and Regulation
of Urban Areas Rules, 1976, the appellant Company was
not liable to pay the amount of Rs. 61,000/- per gross acre
towards the construction of internal community
buildings; and that the demand was not only unjust and
B
arbitrary but also contrary to licence agreement and also
..... _ ..
against the provisions of the Act and the Rules framed
thereunder. As these representations were not favourably
considered, the appellant Company filed a writ petition
before the High Court challenging the demand letters c
dated 11.1.1988, 17.10.1993 and 4.5.1994 to the extent of
demand for Rs. 61,000/- per acre (and interest thereon)
on account of internal community buildings, by including
\
it in the external development charges.
/ -
The High Court held that the appellant failed to
D
develop the said buildings which it was obliged to do and
thus the Director was justified in demanding the said
amount.
In appeal to this Court, it was contended for the
appellant that the Director, respondent No. 2, while
E
making the unlawful demand of Rs. 61,000/- per gross
,. ,.
acre in the name of construction of internal community
buildings, acted arbitrarily, unfairly and unreasonably
inasmuch as he had no power or authority to include the
F
cost of internal community buildings in the external
development charges.
The respondent No. 2 contended that the writ petition
itself was not maintainable, inasmuch as, the contention
of the appellant was that the impugned demand made
G
-.
was outside the provisions of the Act and the Rules and
therefore the actual remedy that was available to the
appellant to challenge the said demand was by way of
filing a civil suit; that the writ petition filed by the appellant
was in the nature of claim for rendition of accounts for
H
556
SUPREME COURT REPORTS
[2009] 1 S.C.R.
A which the writ was not a proper remedy; that the demand
"" .
made was within the jurisdiction and parameters laid
down in section 3(3)(a)(iv) of the Act; and in the
alternative it was contended that in that event, the entire
amount for which demand was raised has since been
B paid by the appellant and therefore, the principle of
waiver and acquiescence would apply to the facts and
circumstances of the case.
~
~
Disposing of the appeal, the Court
c
HELD: 1. The respondent No. 2 was not authorized
or justified in raising the demand of Rs. 61,000/- per gross
acre. Whatever payment is made in respect of the
aforesaid demand was not payable by the appellant to
the respondent No. 2 as the said demand was illegal,
D unjustified and unreasonable. The said amount payable
by the respondent No. 2 be adjusted towards the dues
of the appellant. [Para 35] [584-C-D]
2. The issue was as to whether or not demand could
E
be made and was supported by the statutory provisions.
Thus, writ petition was competent and maintainable: [Para
16] [575-G]
3.1. Section 3(3)(a)(iv) of the Haryana Development
.. '
and Regulation of Urban Areas Act, 1975 is the relevant
F provision and the merit of the claim and repudiation
thereof is based on the interpretation of the said
provision. Section 8 of the Act provides that the Director
could cancel the ticence given to the developer colonizer
if he contravenes any of the conditions of the licence or
G the provision of the 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
H development work from the colonizer and the plot
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 557
HARYANA & ANR.
.
holders. [Para 17) [576-A, D-F]
A
. .. .....,.
3.2. The comparative reading of the provisions of
Section 3(3){a)(iv) and sub-clause (b) of clause (1) of the
Licence Agreement would clearly show that the licenseecolonizer is required to construct at his own cost,
B
schools, hospitals, community centres and other
community buildings or may get the same constructed
"f ...
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 c
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. The said provision, D
. "
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
E
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
F
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
G
terms and conditions as the Government may deem fit.
·;..;
The aforesaid provision is clear and explicit and there is
no ambiguity in it. [Paras 18 and 19) (576-F-H; 577-A-E]
3.3. There is no mention at all of any requirement for
H
558
SUPREME COURT REPORTS
[2009] 1 S.C.R.
A 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. There is no
B dispute with regard to the fact that the developer of the
colony, namely the 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
c 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 was transferred to the Government free of
cost. Since the land was given free of cost, it was open
0 to 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
E 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
F 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. [Paras 21 and 22) [578-D-E; 579-A-C]
G
3.4. The word used in Section 3(3)(a)(iv) is "land" and
it has been specifically mentioned therein that if the
. ,.
colonizer does not construct the community buildings
~·
H
and facilities on its own or through its agency or
organization or individual, then the said licensee would
'
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 559
HARYANA & ANR.
be required to transfer the said land set apart for the
A
~~
aforesaid purpose free of cost to the Government. The
Government's claim is therefore restricted to lands which
the developer has failed to develop as community
centres. If the legislature had intended that the licensee
is required to transfer the land and also to construct the
B
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 c
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
D
- .,-
proper for the courts to add any words thereto and evolve
some legislative intent, not found in the statute. [Paras 23
and 24] [579-D-H; 580-A-B]
Ganga Prasad Verma (Dr.) v. State of Bihar (1995) Supp.
(1) SCC 192 and DLF Qutab Enclave Complex Educational
E
Charitable Trust v. State of Haryana (2003) 5 SCC 622, relied
on.
,, ,,
4. No power and jurisdiction was vested in the
Government to make such a demand for the simple
F
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 G
cost, on the contingency mentioned in the statute and
~-"'"
relied in the Licence Agreement, the licensee is also
required to pay for the construction of said buildings.
[Para 31] [582-G-H; 583-A]
5.1. The principles of waiver and acquiescence is not
H
560
SUPREME COURT REPORTS
[2009] 1 S.C.R.
A attracted to the facts of the case. 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
8 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.
In 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
C 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
D 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. [Para 32] [583-C-F]
E
5.2. 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
F determined on the facts of each case. 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
G 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. Therefore, the principle of waiver and
acquiescence would not have application. [Paras 33 and
H 34) [583-G-H; 584-A-B]
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 561
HARYANA & ANR.
Municipal Corpn. of Greater Bombay v. Hakimwadi A
Tenants' Assn. (1988) Supp SCC 55, referred to.
Case Law Reference:
(1995) Supp. (1) sec 192 relied on
(2003) 5 sec 622
relied on
(1988) Supp SCC 55
referred to
Para 25
Para 30
Para 33
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No.8186
of 2001.
From the Judgment & Order dated 29.7.1999 of the High
Court of Punjab & Haryana at Chandigarh in C.W.P.No. 6565/
94.
B
c
Arun Jaitley, R.S. Suri, Mohd. Wasay Khan, Arun Monga
0
and Nsurat for the Appellants.
An up G. Chaudhary, Manjit Singh and T.V. George for the
Respondent.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J.1. The issue that falls
for our consideration in this appeal is in respect of a demand
E
of Rs. 61,000/- per gross acre, raised by the second
respondent towards the external development charges but
actually on account of construction of internal community
F
buildings, with a further stipulation that no such charge would
be realised from the plot holders.
2. The appellant has challenged the said demand of the
second respondent as unlawful being contrary to the statutory
provisions pertaining to the construction of internal community
G
buildings, which only mandates transfer of land free of cost to
the Government, if the Government so desires, but without
providing for any amount chargeable from the licensee to the
Government for the construction of these internal community
buildings.
H
562
SUPREME COURT REPORTS
[2009] 1 S.C.R.
A
3. These challenges are made by way of filing the present
~
appeal which is filed against the judgment and order of the .
Division Bench of the Punjab and Haryana High Court dated
29.07.1999 whereby the writ petition filed by the appellant was
dismissed.
B
4. Appellant is a public limited company registered and
incorporated under the Companies Act, 1956 and is into the
business of real estate development and development of
colonies. Since 1983, the appellant Company had been
c granted licenses by the Director, Town and Country Planning
(for short "Director") being respondent No. 2 herein under the
provisions of Haryana Development and Regulation of Urban
Areas Act, 1975 (for short the "Act") and Haryana Development
and Regulation of Urban Areas Rules, 1976 (for short the
D
"Rules") for setting up colonies in the District Gurgaon, Haryana.
For the said purpose, agreements were entered into from time
to time between the appellant Company and respondent No. 2
in the prescribed form i.e. LC-IV, under Rule 11 of the Rules.
The said licenses were renewed from time to time.
E
5. As per clause 1 of the Licence Agreement, the licensee
is required to fulfil the conditions laid down in Rule 11 of the
Rules. However, before we go into the various terms and
conditions of the licence, we think it to be useful to refer to and
extract some of the relevant provisions of the Act read with the
F Rules. The said Act and Rules were framed to regulate the use
of the land, in order to prevent ill planned urbanization in or
around the towns in the State of Haryana and the same inter
alia governs the grant of licence for colonizing upon terms set
out in the licence agreement, which is given in the statutory form
G namely Form LC-IV. The relevant provisions of the Act are
quoted hereunder:-
"S.2. Definition. In this Act, unless the context otherwise
requires:
H
.....................
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 563
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
(g) "external development works" include sewerage,
A
, --c
drains, roads and electrical works which may have to
executed in the periphery of, or outside, a colony for the
joint benefit of two or more colonies:
,
(i)
•.
"internal development works" mean -
B
metaling of roads and paving of footpaths;
-
.!.·
(ii)
turfing and plantation with trees as open
spaces;
(iii)
street lighting;
c
(iv)
adequate and wholesome water-supply;
(v)
sewers and drains both for storm and
sullage water and necessary provision for
D
"
their treatment and disposal; and
(vi)
any other work that the Director may think
necessary in the interest of proper
development of a colony.
E
Section 3. Application for licence. (1) Any owner desiring
to convert his land into a colony, shall, unless exempted
under section 9, make an application, to the Director, for
~ -"
the grant of a licence to develop a colony in the prescribed
form and pay for it such fee as may be prescribed. The
F
application shall be accompanied by an income-tax
clearance certificate.
(2) ..........
(3) After the enquiry under sub-section (2), the Director by G
an order in writing, shall -
'""'-;
-.,(
(a)
grant, a licence in the prescribed form, after the
applicant has furnished to the Director a bank
guarantee equal to twenty five per centum of the
H
A
B
c
D
E
F
G
H
564
(b)
SUPREME COURT REPORTS
[2009] 1 S.C.R.
estimated cost of development works as certified
by the Director and has undertaken--
(i) to enter into an agreement in the prescribed form
for carrying out and completion of development
works in accordance with the licence granted:
(ii) ....................... .
(111) .......................... .
(iv) to construct at his own cost, or get constructed
by an other institution or individual at its cost,
schools, hospitals, community centres and other
community buildings on the lands set apart for this
purpose, or 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 shall be at liberty to transfer such land
to any person or institutions as it may deem fit;
(4) The licence so granted sflall be valid for a period of
two years and will be renewable from to time for a period
of one year, on payment of prescribed fee.
(5) A separate licence shall be required for each colony.
Section 5. Cost of Development Works - (1) The
colonizer shall deposit fifty per centum of the amount realised,
from time to time, by him, from the plot-holders within a period
of ten days of its realisation in a separate account to be
maintained in a scheduled bank. This amount shall only be
utilized by him towards meeting the cost of internal development
works in the colony. After the internal development works of the
colony have been completed to the satisfaction of the Director,
the colonizer shall be at liberty to withdraw the balance amount.
,
~ '
~-
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 565
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
- '-f
A
The remaining fifty per centum of the said amount shall be
deemed to have been retained by the colonizer, inter-alia to
meet the cost of land and external development works.
(2) The colonizer shall maintain accounts of the amount
kept in the scheduled bank, in such manner as may be
B
prescribed.
- ._
Sec. 8 Cancellation of license - (1) A license granted
under this Act, shall be liable to be cancelled by the Director if
the colonizer contravenes any of the conditions of the license c
or the provisions of the Act or the rules made thereunder,
provided that before such cancellation the colonizer shall be
given an opportunity of being heard.
(2) After cancellation of the licence, the Director may
himself, carry out or cause to be carried out, the D
development works in the colony and recover such charges
as the Director may have to incur on the said development
works from the colonizer and the plot-holders in the manner
prescribed as arrears of land revenue.
(3) The liability of the colonizer for payment of such charges
E
shall not exceed the amount the colonizer has actually
recovered from the plot-holders less the amount actually
' ..
,,)(
spent on such development works, and that of the plotholders shall not exceed the amount which he would have
to pay to the colonizer towards the expenses of the said
F
development works under the terms of the agreement of
sale or transfer entered into between them;
Provided that the Director may, recover from the plot
holders with their consent, an amount in excess of what G
<w,
may be admissible under the aforesaid terms of
agreement of sale or transfer.
(4) Notwithstanding anything contained in this Act, after the
colony has been fully developed under sub-section (2), the
H
Director may, with a view to enabling the colonizer, to
566
SUPREME COURT REPORTS
[2009] 1 S.C.R.
.,..
A
transfer the possession of and the title to the land to the
plot-holders within a specified time, authorize the colonizer
by an order to receive the balance amount, if any, due from
the plot-holders, after adjustment of the amount which may
have been recovered by the Director towards the cost of
B
the development works and also transfer the possession
of or the title to the land to the plot-holders within aforesaid
time. If the colonizer fails to do so, the Director shall on
.,. '
behalf of the colonizer transfer the possession of and the
title to the land to the plot-holders on receipt of the amount
c
which was due from them.
(5) After meeting the expenses on developments works
under sub-section (2), the balance amount shall be
payable to the colonizer."
D Some of the provisions of the Rules which require mention are
extracted herein below;
4. Percentage of area under of roads, open spaces etc.
in layout plans section ; 3(4) and 24 :- (1) In the layout
E
plan of a colony other than an industrial colony, the land
reserved for roads, open spaces, schools, public and
community buildings and other common uses shall not be
less than forty five percent of the gross area of the land
....
under the colony :
F
Provided that the Director may reduce after
recording reasons therefor this percentage to a figure not
below thirty-five where in his opinion the planning
requirements and the size of the colony so justify.
G
(2) In the layout plan of an industrial colony, the land
reserved for the purpose specified in sub- rule ( 1) shall not
~-
be less than thirty five percent of the gross area of the land
under the colony :
H
Provided that the Director may reduce after
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 567
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
~ -,
recording reasons therefor this percentage to a figure not A
below twenty wherein his opinion the planning
requirements and the size of the colony so justify.
5. Development works to be provided in colony; section
3(3) - The designs and specifications of the development B
works to be provided in a colony shall include:-
--
(a)
metaling of roads and paving of footpaths ;
(b)
turfing and plantation with trees of open spaces ;
(c)
street lighting ;
c
(d)
adequate and wholesome water supply ;
(e)
sewers and drains both for storm and sullage water
v
and. necessary provision for their treatment and
D
~
disposal ; and
(f)
any other works that the Director may think
necessary in the interest of proper development of
the colony.
E
11. Conditions required to be fulfilled by applicant,
Section 3(3) - The applicant shall:-
"
, ...
(a) furnish to the Director a bank guarantee equal to twenty
five per cent of the estimated cost of the development work
F
as certified by the Director and enter into an agreement
in form LC-IV for carrying out and completion of
development works in accordance with the licence finally
~
granted;
(b) undertake to deposit fifty percent of the amount to be G
.........
released by him from the plot holders, from time to time,
within ten days of its realisation in a separate account to
'
be maintained in a scheduled bank and this amount shall
only be utilized towards meeting the cost of internal
development works in the colony;
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(2009) 1 S.C.R.
·-
A
(c) undertake to pay proportionate development charges
....-·-
if the main lines of roads, drainage, sewerage, water
supply and electricity are to be laid out and constructed
by the Government or any other local authority. The
proportion in which and time within which such payment
B
is to be made shall be determined by the Director.
(d) undertake responsibility for the maintenance and
upkeep of all roads, open spaces, public parks and public
~ ...
health service for a period of five years from the date of
c
issue of the completion certificate under rule 16 unless
earlier relieved of this responsibility and thereupon to
transfer for all such roads, open spaces, public marks and
public health service free of cost to the Government or the
local authority as the case may be;
D
(e) undertake to construct at his own cost or get
-I
constructed by any other institution or individual at its cost,
schools, hospitals, community centres .and other
community buildings on the land set apart for this purpose,
or undertake to transfer to the Government at any time if
E
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 shall
be at liberty to transfer such land to any person or institution
including a local authority on such terms and conditions as
.. 'f
F
it may deem fit; and
(f) undertake to permit the Director or any other officer
authorized by him to inspect the execution of the layout and
the development works in the colony and to carry out all
directions issued by him for ensuring due compliance of
G
the execution of the layout and development works in
accordance with the licence granted.
μ·
(2) If the director, having regard to the amenities which
exist or are proposed to be provided in the locality, decides
H
that it is not necessary or possible to provide such amenity
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 569
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
---(
or amenities, the applicant will be informed thereof and
A
clauses (c), (d) and (e) of sub-rule (1) shall be deemed to
have been modified to that extent.
12. Grant of Licence. Section 3(3) and (4) - (1) After the
applicant has fulfilled all the conditions laid down in rule
B
11 of the satisfaction of the Director, the Director shall grant
the licence in form LC-V .
. . ~
(2) The licence granted under sub-rule (1) shall be valid
for a period of two years from the date of its grant during c
which period all development works in the colony shall be
completed and certificate of completion obtained from the
Director as provided in rule 16.
Rule 14 of the Rules empowers the Director to renew the
...
licence for a period of one year provided he is satisfied that
D
the delay in execution of the development works was for the
reasons beyond the control of the colonizer. Rule 18 on the other
hand provides that where the execution of the lay out plan and
construction of other work is not proceeded according to the
licence granted under Rule 12, or is below the specification or
E
is in violation of the provisions of any law or the Rules, the
Director by a notice shall require the colonizer to remove various
defects within the period specified in the notice and if the
'
~·
--'."
colonizer fails to comply with the requirements, after hearing the
colonizer, the Director may either cancel the licence or grant
F
him further time for complying with the requirement.
6. Form LC-Ill which is part of the Rules is the proforma of
the letter to be written by the Director to the colonizer referring
to his application for the grant of licence to set up a colony. The
said proforma requires the Director to inform the colonizer that
G
~~.
it was proposed to grant the licence to him for setting up a
colony and that he should fulfil the conditions laid down in Rule
11. The said letter is to be sent by the Director in compliance
with the provisions of Rule 10. It is only after receipt of the
aforesaid letter that a colonizer enters into an agreement with
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[2009) 1 S.C.R.
A the Director in Form LC-IV. The said Form LC-IV which is part
of the statutory rule 11 is the format of the agreement which the
owner of the land intending to set up a colony enters into with
the Director for and on behalf of the Government of Haryana.
8
7. A bare look of the said agreement which is a part of
the record would make it clear that many of the terms and
conditions of the agreement are extracts of the provisions of
the Act and the Rules. It is also provided in the said agreement
that colonizer would carry out all directions issued by the
C Director for due compliance of the execution of lay out and
development works in accordance with the licence granted.
8. It is also provided therein that without prejudice to
anything contained in the said agreement, all the provisions
contained in the Act and the Rules would be binding on the
D owner. In order to better appreciate the contention raised by
the parties, we have extracted the relevant provisions of the
Licence Agreement entered into between the appellant and
respondent No. 2, herein.
E
F
G
H
1. In consideration of the Director agreeing to grant licence
to the owner to set up the said colony on the land
mentioned in Annexure hereto on the fulfillment of all the
conditions laid down in Rule 11 by the Owner, the owner
hereby covenants as follows:
(a) That the Owner shall be responsible for the
maintenance and upkeep of all roads open spaces,
public parks and public health services for a period
of five years from the date of issue of the
completion certificate under rule 16 of the Rules
unless earlier relieved of this responsibility, when
the Owner shall transfer all such roads, open
spaces, public parks and public health services
free of cost to the Government or the Local Authority
as the case may be.
. .
.,.
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 571
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
(b) That the Owner shall construct at his own cost
A
- --(
or get constructed by any other institution or
individual at its cost, schools, hospitals, community
centres and other community building on the land
set apart for this purpose or undertake to transfer
to the Government at any time, if so desired by the
B
Government free of cost, the land set apart for
schools, hospitals, community centres and other
-
+
community buildings, in which case the Government
shall be at the liberty to transfer such land to any
person or institution including Local Authority on c
such terms and conditions as if may lay down.
(c) That the owner shall deposit fifty percent of the
amount realized by him from plot holders, from time
to time, in a separate account to be maintained in
D
a Scheduled Bank and that this amount shall only
be utilized by the Owner towards meeting the cost
of internal development works in the colony.
(d) That the Owner shall permit the Director or other
Officer authorized by him in this behalf to inspect
E
the execution of the layout and the development
works in the colony and the Colonizer shall carry out
all directions issued by him or ensuring due
~
....
compliance of the execution of the layout plans and
the development works in accordance with the
F
licence granted.
(e) That the Owner shall pay proportionate
development charges as and when required and as
determined by the Director in respect of external
G
development charges.
''"
(f) That without prejudice of anything contained in
this agreement all the provisions contained in the
Act, and these rules shall be binding on the Owner.
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572
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B
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SUPREME COURT REPORTS
[2009] 1 S.C.R.
2. Provided always and it is hereby agreed that if the
Owner commit any breach of the terms and conditions of
this agreement or violate any provisions of the Act or these
rules, then and in any such case, and notwithstanding the
waiver of any previous clause or right, the Director, may
cancel the licence granted to him.
3. Upon cancellation of the licence under Clause 2 above
the Govt. may acquire the area of the aforesaid colony
under the Land Acquisition Act, 1894 and may develop the
said area under any other law. The Bank Guarantee in that
events shall stand forfeited in favour of the Director.
4. The stamp and registration charges on this deed shall
be borne by the Owner.
D
5. The expression "the Owner" herein before used shall
include his heirs, legal representatives, successors and
permitted assigns.
The last clause (clause 6) provides tha\ on completion and
grant of the completion certificate, the Director may release the '
E bank guarantee on the application filed by the appellant
Company.
9. In the present case, the respondent No. 2 by letter dated
11.01.1988 informed the appellant Company that it was
F 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
G should be made from the plot holders. It was also mentioned
in the said letter that credit would be given by Haryana Urban
Development Author[ty 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
H
r -
+
'
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 573
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
-- ..,
renewal, the appellant Company was required to pay the
A
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
B
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 c
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.
D
10. As its aforesaid representations did not bear any fruits,
the appellant Company filed a writ petition before the Punjab
and Haryana High Court challenging the demand letters dated
11.1.1988, 17 .10.1993 and 4.5.1994 to the extent of demand
for Rs. 61,000/- per acre (and interest thereon) on account of E
internal community buildings, by including it in the external
development charges. The appellant also contended inter alia
" _,.
that as per provisions, the licensee was required to construct
at his own cost either itself or through an institution or individual,
the schools, hospitals, community centres and other community
F
buildings or to transfer to Government free of cost the land set
apart for sch.ools, hospitals, community centres and other
community buildings.
11. It was further submitted that in terms of the aforesaid
G
provision, the appellant licensee was not required to pay for the
development of those buildings in case the land is transferred
to the Government free of cost. It was also pointed out by the
appellant that in fact such a demand made by the respondent
No. 2 is beyond the competence of the Government as any
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(2009] 1 S.C.R.
A payment made for such development would not only be against
the provision of the Act and the Rules framed thereunder but
would also be against the principles of unjust enrichment.
12. The Punjab and Haryana High Court considered the
8 aforesaid Writ Petition and thereafter by the impugned judgment
and order dated 29. 7 .1999 rejected the contentions of the
appellant holding that the appellant had failed to develop the
+
·
said buildings which it was obliged to do and thus the Director
was justified in demanding the said amount from the appellant
C Company which would be invested for the construction of these
buildings only. Aggrieved by the said judgment and order, the
present appeal is preferred by the appellant Company on
which we have heard the learned counsel appearing for the
parties.
D
13. The aforesaid contentions which were raised by the
appellant in the various representations submitted were
reiterated before us by Mr. Arun Jaitley, the learned senior
counsel appearing for the appellant. It was further submitted by
him that the Director, respondent No. 2 herein, while making
E the unlawful demand of Rs.