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

Citation: [2009] 1 S.C.R. 553

Court: Supreme Court of India

Bench: R.V. RAVEENDRAN, MUKUNDAKAM SHARMA

Case summary

M-S. ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF HARYANA & ANR.pdf

Judgment text

[2009] 1 S. C. R. 553 -...... M/S. ANSAL PROPERTIES & INDUSTRIES LTD. 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: 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 . 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 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 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 ~ ......... 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 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 cannot read anything into a statutory provision which is plain 8 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. 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 ofconduct 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 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 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 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 licence agreement and also as per the provisions of the HARYANA & ANR. .. """!

' Haryana Development and Regulation of Urban Areas 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 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 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 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 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 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 -.

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 "" . , 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 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 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, 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 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 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 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 development work from the colonizer and the plot HARYANA & ANR. . holders. [Para 17) [576-A, D-F] . .. ..... ,. 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, 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 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, 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. [Paras 18 and 19) (576-F-H; 577-A-E] 3. 3. There is no mention at all of any requirement for [2009] 1 S. C. R. 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 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 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 to the State Government to get the remaining community 0 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. [Paras 21 and 22) [578-D-E; 579-A-C] 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 ~· and facilities on its own or through its agency or organization or individual, then the said licensee would ' HARYANA & ANR. be required to transfer the said land set apart for the ~~ 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 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 statute. [Paras 23 and 24] [579-D-H; 580-A-B] Ganga Prasad Verma (Dr. ) v. State ofBihar (1995) Supp. (1) SCC 192 and DLF Qutab Enclave Complex Educational Charitable Trust v. State ofHaryana (2003) 5 SCC 622, relied on. 4. No 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 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 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 revised rates which is since determined by the Director 8 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 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. [Para 32] [583-C-F] 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 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 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 34) [583-G-H; 584-A-B] HARYANA & ANR. Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants' Assn. (1988) Supp SCC 55, referred to. Case Law Reference: (1995) Supp. (1) sec 192 relied on Para 25 (2003) 5 sec 622 relied on Para 30 (1988) Supp SCC 55 referred to Para 33 CIVIL APPELLATE 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. Arun Jaitley, R. S. Suri, Mohd. Wasay Khan, Arun Monga 0 and Nsurat for the Appellants. Anup 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 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 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 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. ~ 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. 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 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 "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. 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 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 namely Form LC-IV. The relevant provisions of the Act are quoted hereunder:- "S. 2. Definition. In this Act, unless the context otherwise requires: ..................... HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.

] (g) "external development works" include sewerage, , --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 - •. metaling of roads and paving of footpaths; - .!. · (ii) turfing and plantation with trees as open spaces; (iii) street lighting; (iv) adequate and wholesome water-supply; (v) sewers and drains both for storm and sullage water and necessary provision for " their treatment and disposal; and (vi) any other work that the Director may think necessary in the interest of proper development of a colony. 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 application shall be accompanied by an income-tax clearance certificate. (2).......... (3) After the enquiry under sub-section (2), the Director by 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 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; (b) (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. HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J. ] - '-f 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 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 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 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 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 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 (. 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 'r 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 ri1ay 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 )IL. ~ 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 HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J. ] ... .

-,' 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,QOO/- 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 ,d 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 estoppal 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 r· 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 •. vas 8 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. 35. The appeal, therefore, stands allowed and we hold that respondent No. 2 was not authorized or justified in raising the aforesaid 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 is held to be illegal, unjustified and unreasonable. The counsel for the appellant during the course of his arguments however submitted that the said amount now payable by the respondent No. 2 be adjusted towards the dues of the appellant. Accordingly we direct such adjustment of the amount in accordance with law. 36. We accordingly, dispose of this appeal in the light of .. the aforesaid directions and observations. D. G. Appeal allowed. ... --