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