Punjab-Haryana High Court
M/S Rama Krishna Buildwell Pvt Ltd vs State Of Haryana And Ors on 28 July, 2017
Bench: S.J. Vazifdar, Harinder Singh Sidhu
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No.7507 of 2016 (O&M)
DATE OF DECISION: 28.07.2017
M/s Rama Krishna Buildwell Pvt. Ltd.
.....Petitioner
versus
State of Haryana and others
.....Respondents
CORAM:- HON'BLE MR.JUSTICE S.J. VAZIFDAR, CHIEF JUSTICE
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. Hemant Saini, Advocate for the petitioners
Mr. RKS Brar, Addl. Advocate General, Haryana
Mr. Lokesh Sinhal, Advocate for respondent No.2
..
S.J. VAZIFDAR, CHIEF JUSTICE:
The petitioner has sought a writ of certiorari to quash a letter of intent (LOI) dated 30.10.2007 issued in its favour only to the extent that it relates to the quantum of the infrastructure development charges (IDC) stipulated therein.
2. The charges were stipulated as per a draft notification dated 23.07.2007 which ultimately came into effect on 28.01.2008. The petitioner's contention is that the draft notification had no force of law on the date the LOI was issued, namely, 30.10.2007 and, therefore, the IDC ought to have been levied as per the rates prevalent on the date of the LOI. It is further contended that the notification dated 20.01.2008 is only prospective and the rates stipulated therein cannot be applied to the said LOI dated 30.10.2007.
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3. The petitioner is a developer. The respondents issued an LOI dated 08.06.2007 in favour of the petitioner in respect of the development of a residential plotted colony on land admeasuring about 53 acres. The LOI required the petitioner to fulfil the requirements of the Haryana Development and Regulation of Urban Areas Act, 1975, and the rules of 1976 made thereunder. The petitioner was unable to fulfil the conditions in the LOI.
4. The petitioner, therefore, made an application on 10.09.2007 for a fresh LOI. The respondents issued the said fresh LOI dated 30.10.2007 under section 3 of the Act for the development of a residential plotted colony on the said land. Clause-2, in so far it is relevant, and clause-4 of the LOI read as under:-
"2. ................................................................................................................................................................................
The rates of external development charges are under review and are likely to be finalized soon. In the event of increase of rates of external development charges, you will have to pay the enhanced rates of external development charges as and when demanded by the DTCP Haryana and furnish an undertaking in this regard.
...... ..... ..... ...... ...... ...... .......
4. You are required to deposit infrastructure development charges-cum-service charges through bank draft in favour of the Director, Town and Country Planning, Haryana, payable at Chandigarh @ Rs.250/- per sq. meter for plotted area and @ Rs.500/- per sq. meter for commercial area within two equal instalments after grant of licence. First instalment within 60 days and 2nd instalment within six months from the date of grant of licence, failing which 18% PA interest will be leviable for the delayed period and submit an undertaking in this regard."
5. On the date of the LOI, namely, 30.10.2007, the draft rules of 23.07.2007 were in existence. The rules were called the Haryana Development and Regulation of Urban Areas (Amendment) Rules, 2007. Schedule-A to the draft rules stipulated the rates for IDC for plots in the minimum potential zone which applies to the 2 of 5 ::: Downloaded on - 31-07-2017 01:42:32 ::: CWP-7507-2016 - 3 -
petitioner. The rates were Rs.250/- per sq. metre and Rs.500/- per sq. metre for residential and commercial purposes, respectively.
6. Mr. Saini, the learned counsel appearing on behalf of the petitioner, contended that the draft rules had no force of law. The IDC rates are stipulated in the Act and the rules made thereunder. The respondents cannot charge any amount in excess thereof. Mr. Saini submitted that the rules came into effect only on 28.01.2008 i.e. after the LOI. The stipulation of the IDC in the fresh LOI was as per the draft notification which is not permissible in law.
7. In the facts and circumstances of the case, we are not inclined to exercise our extra-ordinary jurisdiction under Article
226. The draft rules had been made on 23.07.2007. It is difficult to believe that parties such as the petitioner would not have been aware of the same. The application for the LOI was made and the fresh LOI was issued on 30.10.2007. The petitioner expressly agreed to pay the IDC stipulated therein. The petitioner even furnished an undertaking on 22.11.2007. Clause-4 of the undertaking reads as under:-
"4. That we will deposit infrastructure development charges cum service charges through bank draft in favour of the Director, Town & Country Planning, Haryana, payable at Chandigarh @ Rs.250.00 Per Sq. Yards for plotted area and at Rs.500.00 Per Sq. Yards for commercial area within two equal installment after grant of licence. First installment within 60 days and 2nd installment within six month (sic) from the date of grant of licence."
It is obviously only in view of the petitioner having agreed to the terms and conditions of the LOI and having furnished the undertaking dated 22.11.2007 that the respondents granted the 3 of 5 ::: Downloaded on - 31-07-2017 01:42:32 ::: CWP-7507-2016 - 4 -
LOI. Had the petitioner not agreed to do so, the respondents could well have waited for just about three months till the rules came into force on 28.01.2008. The petitioner never raised any demur or protest to the rules. The petitioner had taken full advantage and benefit under the fresh LOI. It, in fact, continues to take advantage under the fresh LOI. It seeks to take the benefit under the LOI but not the liability thereunder.
The objection is raised in the present writ petition after almost nine years. During this period, the petitioner has derived benefit under the Licence. It is difficult now to set the clock back. The petitioner does not even agree or wish to do so, to wit the petitioner does not now want the contract annulled.
8. The petitioner had earlier filed CWP No.860 of 2009 seeking a writ of mandamus directing the respondents to issue a licence in terms of the earlier LOI dated 08.06.2007 and a writ of certiorari to set aside the fresh LOI dated 30.10.2007. One of the contentions raised in support of the petition was that the fresh LOI was arbitrary and without any statutory or legal basis and that the fresh LOI, which enhanced the rates as compared to the earlier LOI, was, therefore, illegal. By an order dated 31.10.2014, the petition was dismissed as withdrawn. Liberty to file a fresh petition was neither sought nor granted. The present writ petition raises similar contentions and only changes the nature of the relief. In fact, it does not even change the nature of the relief for in the earlier writ petition what was sought was really the IDC as per the first LOI on the ground that the manifold increase thereof in the fresh LOI was illegal. In the present writ petition, it is, in effect, the same relief that is sought in a different manner, namely, directing the respondents to charge the IDC as per 4 of 5 ::: Downloaded on - 31-07-2017 01:42:32 ::: CWP-7507-2016 - 5 -
the rates prevalent on the date of the fresh LOI. This is, in effect, an attempt to seek the same relief moulded differently.
9. In the facts and circumstances of this case, we see no reason to invoke our jurisdiction under Article 226 of the Constitution of India.
10. The writ petition is, therefore, dismissed.
(S.J. VAZIFDAR) CHIEF JUSTICE (HARINDER SINGH SIDHU) JUDGE 28.07.2017 parkash NOTE:
Whether speaking/non-speaking: Speaking Whether reportable: YES/NO 5 of 5 ::: Downloaded on - 31-07-2017 01:42:32 :::