V.M. Jain, J.
1. In the present writ petition under Articles 226/227 of the Constitution of India, the petitioner company has challenged the letter dated 1.1.1988 Annexure P-2, issued by the Director, Town and Country Planning Haryana, Chandigarh (hereinafter referred to as the Director) and the subsequent letters, dated 7.10.1993 Annexure P-7 and dated 4.5.1994 Annexure P-8, also issued by the Director.
2. In the letter dated 1.1.1988 Annexure P-2, the petitioner company was informed by the Director, that Haryana Urban Development Authority (hereinafter referred as the HUDA) which was responsible for undertaking the external development works at Gurgaon, has decided to charge Rs. 3.72 lacs per gross acre external development charges. The petitioner company was further informed that in the said external development charges, a sum of Rs. 61,000/- had been included on account of internal community buildings for which no recovery shall be made from the plot holders though credit would be given by HUDA for the internal buildings already constructed by the petitioner company in the colonies. The petitioner company was also asked to deposit the requisite external development charges as per the details given in the said letter within the prescribed time schedule. Vide letter dated 7.10.1993 Annexure P-7, the Director had informed the petitioner company to pay the amount of external development charges, Vide letter dated 4.5.1994, Annexure P-8, the petitioner company was informed by the Director about the amount which had become due upto 31.3.1994 in respect of external development works and the petitioner company was directed to deposit the said amount with HUDA.
3. As per the allegations made by the petitioner company in the writ petition, the petitioner company was engaged in the commercial activities of developing a number of colonies in District Gurgaon (Haryana State) as private colonisers on the basis of the licence granted under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as the Act) and the Development and Regulation of Urban Areas Rules, 1976 (hereinafter referred to as the Rules). It was alleged that under the provisions of the said Act and Rules, licensee has to enter an agreement with the Director in the prescribed form for carrying out and completion of development works in accordance with the licence. It was alleged that the petitioner-company has since been granted licenses by the respondents since 1983 for setting up colonies in District Gurgaon and these licenses have been reviewed from time to time. It was alleged that since 1983, the petitioner-company had been regularly paying to the respondents the external development charges as defined in the Act and the Rules as envisaged under agreement Annexure P-1. It was alleged that the petitioner-company was surprised to receive letter dated 11.1.1988 Annexure P-2, where in the petitioner-company was informed that a sum of Rs .61,000/- per acre had been included in the external development charges on account of internal community buildings. It was alleged that the petitioner company made representation to respondent No. 2 that the inclusion of Rs. 61,000/- per acre towards internal community buildings in the external development charges was against the provisions of the Act and the licence granted to it and the petitioner company was not liable to pay any amount on account of internal development works. It was alleged that subsequently, the petitioner received letter dated 7.10.1993, Annexure P-7, whereby the petitioner company was informed that before petitioner’s licences could be considered for renewal, the petitioner was to pay the external development charges which included the amount towards internal community buildings. Another letter dated 4.5.1994 Annexure P-8, was also received by the petitioner company from the Director in this regard. It was alleged that letters Annexures P2, P7 and P8 issued by the Director were illegal and void. It was alleged that the Director had no power or authority to include the costs of internal community buildings in the external development charges. It was also alleged that the Director was duty bound to function within the meaning of the Act and the Rules. It was further alleged that the action of respondent No. 2, the Director making unlawful demand of Rs. 61,000/- per acre in the name of construction of internal community buildings, was arbitrary, unfair and unreasonable. It was accordingly prayed that letters Annexure P2, P7 and P8 whereby charges for construction of internal community buildings had been included in the external development charges payable by the petitioner company be quashed.
4. In the written reply filed on behalf of respondent No. 2, it was alleged that the petitioner company had not exhausted the alternative remedy of appeal and review as provided under Section 19 and 21 of the Act. It was further alleged that complicated and disputed questions of facts are involved in the present writ petition which would not be gone into by this Court while adjudicating under Article 226 of the Constitution of India. It was further alleged that licences for development of colonies in which internal community sites are situated and for which Rs. 61,000/- per gross acre had been raised, had been granted to various companies, detailed in the preliminary objections and that none of them was the petitioner and as such, the petitioner company has no locus standi to file the present petition. It was alleged that one of the conditions for the grant of licence as provided under Section 4(a) (iv) of the Act was that colonisers undertake to construct at their own costs or get constructed by any other institution or individual at its costs, schools, hospitals, community centres and other community buildings on the land set apart for these purposes or to transfer to the Governments at any time if so desired by the Government, free of costs, the land set apart for schools, hospitals, community centres etc. in which case the Government shall be at liberty to transfer such land to any person or individual including local authorities on such terms and conditions as it may deem fit. It was alleged that statutory obligation had been cast upon the colonisers to construct community buildings at their own costs or get it constructed from any individual or institution at the cost of the colonisers and if so desired by the Government, the Colonisers are duty bound to transfer such sites to the Government and the Government can get the community buildings constructed at the cost of the Colonisers. It was alleged that the Government decided to direct the colonisers to transfer the community sites to the Government. It was further alleged that as per the provisions of the Act, since it was the obligation of the colonisers to get the buildings constructed at their own costs, a high powered Committee consisting of various experts in various fields calculated the average cost of constructing these internal community buildings and the department directed all the private colonisers only the portion of community buildings which were to be transferred by the private Colonisers to the State of Haryana free of costs. It was further alleged that since the matter regarding fixation of the external development works relating to roads, drainage, water supply and electricity etc, was under consideration of the department, the cost of construction of internal community buildings was also taken up along with the works relating to execution of external development works and thereafter demand of releasing the costs of external development works and the cost of construction of community buildings was raised by a single letter dated 11.1.1988. It was alleged that all the colonisers except the present petitioner were paying these charges towards community buildings without any objection. It was further alleged that even though the colonisers were required to transfer the community sites to the Government free of cost but alleged that in most of cases, the petitioner with some monetary motives had transferred these sites on lease hold basis for 99 years to their own trusts without any consideration money or by charging a token consideration money of Rs. 100/- per annum thereby frustrating the rights of the State Government to get these sites transferred to it as and when required by the State Government. It was alleged that the petitioner and their associate companies had so far taken up the construction work only at 4 or 5 sites out of about 104 sites reserved for community buildings in all the three colonies being developed by the petitioner company and its associate companies since 1981 while the remaining sites were still to be constructed. It was alleged that the petitioner and its associate companies have so far transferred about 25 sites out of 104 sites meant for community buildings. It was alleged that since the cost of construction of these building is to be borne by the petitioner and its associate companies, the answering respondent was fully justified in collecting the amount on account of cost of construction of internal community buildings. It was alleged that since the Government was keen that residents of these colonies were provided minimum social infrastructures, the amount of Rs. 61,000/- per gross acre, takes care of only portion of community sites carved out for the colonies.
5. On merits, it was alleged that the petitioner and its associate companies had undertaken to pay the external development charges at the rates fixed by the Director from time to time but they failed to deposit the same in time for which a show cause notice was issued where upon the petitioner company gave an undertaking that they would pay the external development charges at the revised rates to be fixed by the Director. It was alleged that the rates for external development charges were fixed by a high powered committee at the rate of Rs. 3.11 lacs per gross acre. It was alleged that the colonisers also had a statutory obligation to construct the community buildings on the land set apart for this purpose and since the petitioner was not keen to construct these community buildings, the Government decided to have the sites for community buildings transferred to the State Government and also to ask the Colonisers to pay certain amounts for construction of these buildings which include post office, police posts, electrical sub station, telephone exchange buildings etc. which could be constructed only by the Government and not by private individuals. It was alleged that every Coloniser was directed to pay Rs. 61,000/- per gross acre towards community buildings. In this manner each coloniser was asked to pay Rs. 3.72 lacs per gross acres towards the external development charges which included Rs. 61,000/- per gross acre towards community buildings. It was alleged that internal community buildings were to be constructed at the costs of colonisers and its burden could not be thrown on the plot holders in as much as colonisers could recover only the amount of external development charges from the plot holders. It was alleged that the letters dated 11.1.1988, 7.10.1993 and 4.5.1994 were perfectly legal and valid and the same have been issued under the provisions of the Act and the rules. It was further alleged that these letters were within the competence of the Director.
6. In the replication filed by the petitioner, it was alleged that an appeal was preferred to the Chief Minister Haryana on 29.1.1994 and the said appeal was rejected vide letter dated 25.5. 1994, copy Annexure P-10. It was further alleged that respondent No. 2 the Director had failed to substantiate and support its demand of Rs. 61,000/- per acre as it had not specified as to under which provisions of the Act or rules the demand had been raised. It was further alleged that on 13.9.1988 the petitioner had complied with the direction of respondent No. 2 by offering 43 sites available at that time. It was alleged that 13 sites which already stood transferred to various trusts etc. in the year 1987 could not be handed’ over to respondent No. 2 the Director. It was admitted that those sites were transferred at nominal value of Rs. 100/- per acre in the year 1987 but it was alleged that these sites were given to well known and old trusts. It was alleged that respondent No. 2 the Director had already taken possession of 49 sites from the petitioner in August 1994. It was further alleged that mere fact that other colonisers were paying the cost of construction of internal community buildings would not legalise the action of the respondent.
7. A rejoinder to the replication was filed on behalf of respondent No. 2 in which it was alleged that no statutory appeal was filed by the petitioner and it was only a representation to the Chief Minister. It was admitted that possession of 49 sites were taken over in August 1994.
8. Subsequently various additional affidavits were filed on behalf of the respondents in pursuance of the directions given by the court during various hearing at different stages. In one of the additional affidavit filed by the Secretary to the Government of Haryana, it was alleged that total number of community buildings which were proposed to be constructed with the help of Rs. 61,000/- per gross acre to be collected from the petitioner were only 14 in number as per the details indicated in the accompanying chart and the Government was also willing to consider the construction of 10 Nursery schools even though these do not form part of Rs. 61,000/- per gross acre if recovered from the colonisers. It was alleged that these 10 sites along with 14 other sites beside one site of a religious building would constitute 25 sites which was approximately 1/4th of the total community sites (104). In another additional affidavit it was alleged by the Director that the reasons why the State Government took over all the sites offered was because the Colonisers were handing over these sites to their own trusts/third parties, thus, frustrating the object of imposing an obligation upon the Colonisers to construct such community buildings. It was further alleged that the Government is now forming a policy of including approximately the value of community buildings in the internal development works and ensuring that approximately 1/4th of the total cost of internal development works could be secured by Bank guarantee. It was further alleged that as a matter of policy, the Government had decided that no alienation after 7-8.1991 would be regularised without approval of the Director.
9. In another affidavit filed by the Director after the change of Government, it was alleged that present Government supports the stand of the previous Government in relation to payment of Rs. 61,000/- per gross acre (the updated amount being Rs. 83,853/- per gross acre upto December, 1997) for the construction of approximately 1/4th of the sites for community buildings. It was also alleged that the Government would construct these 1/4th community buildings with the above said amounts on receipt of payments from the petitioner.
10. In reply to one of the additional affidavits, it was alleged on behalf of the petitioner company that the petitioner reiterates that it is ready and willing to construct all the community sites or get the same constructed at the petitioner’s responsibility within reasonable time. It was alleged that optimum population capacity for which internal community buildings are proposed to be built would be reached only in the next 20/25 years at the earliest and the construction of community facilities also has to be in consonance with the growth in population. It was alleged that reasonable time should be granted to the petitioner to construct all the community buildings through themselves or on their responsibility within reasonable time keeping in consonance with the growth of population/density in the colonies. It was alleged that concept of. community buildings was separate and distinct from the concept of external development works carried out by the colonisers which includes roads, water-line, street lights etc. In the additional affidavit it was alleged that only 1/4th of the community buildings would be constructed on receipt of Rs. 61,000/- from the petitioner where as the levy as proposed earlier was to cover the construction of all the community buildings in the colony.
11. We have heard the learned counsel for the parties and have gone through the records:
12. So far as preliminary objection raised on behalf of the respondents is concerned, no useful purpose would be served to relegate the petitioner to the statutory remedy of appeal/revision at this stage, considering that the present writ petition is pending in this court since 1994 and also considering that on various dates previously also arguments were addressed. If the petitioner was to be relegated of the statutory remedy of appeal/revision, it should have been done at that stage when arguments were addressed in the year 1995. However, no useful purpose will be served in directing the petitioner now to file statutory appeal/revision against the impugned orders. This is especially so when the petitioner had earlier made representation dated 29.1.1994 Annexure P-9 to the Chief Minister Haryana, against payment of Rs. 61,000/- per acre towards community building and vide letter dated 25.5.1994 (Annexure P-10), the Director had informed the petitioner company that the representation made by it had been considered by the State Government and it had been decided that the request made therein could not be acceded to and the representation had been filed and the petitioner was asked to deposit the balance amount of external development charges as already intimated to it earlier. Accordingly we hold that the present writ petition cannot be dismissed at this stage on the ground of availability of an alternative remedy to the petitioner company.
13. Coming on merits, learned counsel appearing for the petitioner-company submitted before us that there was no power given to the Director to ask the petitioner to pay for the construction of community buildings. It was submitted that under the Act and the Rules framed thereunder, the only power given to the Director was to recover the external development charges. It was submitted that under the Act, the Government is competent to take the land for the community building free of costs but the Director has no power to ask the Colonisers to pay for the costs of the construction for community buildings.
14. Before dealing with this submission of the learned counsel for the petitioner company, in our opinion, it would be relevant to consider the scheme and various provisions of the Act and the Rules.
15. Section 2(g) of the Act, defines “external development works” to include sewerage, drains roads and electrical works which may have to be executed in the periphery of, or out side colony for the joint benefit of two or more colonies. Section 2(i) of the Act defines “internal development” to mean metalling of roads and paving of footpaths, turfing and plantation with trees of open spaces, street lighting, adequate and wholesome water supply, sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal and also any other work that the Director may think necessary in the interest of proper development of a colony.
16. Under Section 3(1)(2) of the Act, it is provided that any owner desiring to convert his land into a colony shall 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 and on receipt of the application, the Director among other thins enquire into various matter including title of the land, extent and situation of the land, capacity to develop a colony, the layout of a colony, plan regarding the developing works to be executed in a colony and conformity of the development schemes of the colony land to those of the neighbouring areas.
17. Section 3(3) of the Act provides that after the enquiry, the Director by an order in writing shall grant a licence in the prescribed form, after the applicant had 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 to enter in to a agreement in the prescribed form for carrying out and completion of development works in accordance with the licence granted, to pay the 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 promotion in which, and the time within which, such payment is to be made shall be determined by the Director. It is also provided that the applicant should also undertake the responsibility for the maintenance and up keep of all roads open spaces, public park and public health services for a period of five years from the date of issue of the completion certificate unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, public parks and public health services free of costs to the Government or the local authority, as the case may be.
18. Section 33(3)(a)(iv) of the Act reads as under: –
“to construct at his own cost, or get constructed by any other institution or individual at its costs, 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 including a local authority on such terms and conditions as it may deem fit.”
19. It is also provided that the applicant should also undertake to permit the Director or any other officer authorised by him to inspect the execution of the lay out and development works in the colony to carry out all direction issued by him for ensuring the due completion of the execution of the lay out and development works in accordance with the licence granted.
20. Section 3(4) of the Act provides that the licence so granted shall be valid for a period of two years and will be renewable from time to time for a period of one year on payment of prescribed fee and under Section 3(5) of the Act, it is provided that a separate licence shall be required for each colony.
21. Under Section 5 of the Act, it is provided that Coloniser shall deposit fifty per centum of the amount released, from time to time, by him, from the plot holders within period of ten days of its realisation in a separate account to be maintained in a Scheduled Bank. This amount shall only be utilised 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 coloniser shall be at liberty to withdraw the balance amount. The remaining fifty per centum of the said amount shall be deemed to have been retained by the coloniser to meet the cost of land and external development works.
22. Under section 6 of the Act, the Director, or any other officer authorised by him in this behalf, shall be competent to inspect the accounts maintained by the coloniser who shall produce before him all the relevant records required for this purpose.
23. Section 8 of the Act provides for the cancellation of the licence by the Director if the coloniser contravenes any of the conditions of the licence or the provisions of the Act or 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 charges as the Director may have to incur on the said development works from the coloniser and the plot holders.
24. Under Rule 3 of the rules any owner of the land desirous of setting up a colony shall make an application in writing to the Director in Form LC-1 and shall furnish therewith a demand draft, income tax clearance certificate, particulars of experience as a coloniser and the number of details of colonies already established or being established, particulars about the financial position so as to determine the capacity to develop the colony for which he is applying the various plans and documents including the lay out plan of the colony showing the existing and proposed means to access to the colony, the width of streets, size and types of plots, sites reserved for open spaces, community buildings and schools with area under each and proposed building lines on the front and sides of plots.
25. Rule 4 of the Rules provides that in the lay out plan of a colony the land reserved for roads, open spaces, schools, public and community buildings and other common uses shall not be less than 45 per cent of the gross area of the land under the colony.
26. Under Rule 5 of the Rules, it is provided that designs and specification of development works to be provided in a colony shall include metalling of roads and paving of footpaths, turfing and plantation with trees of open spaces, street lighting, adequate and whole some water supply, sewers and drain both for storm and sullage water and necessary provision for their treatment and disposal and other works that the Director may think necessary in the interest of proper development of the colony.
27. Rule 11 of the rules is almost similar to the provision of Section 3 of the Act, However, it is provided therein that applicant shall enter in to an agreement in form LC-IV for carrying out and completion of development works in accordance with the licence finally granted.
28. Rule 12 of the Rules provides that if the applicant has fulfilled all the conditions laid down in Rule 11 to the satisfaction of the Director, the Director shall grant a licence in Form LC-V and the licence shall be valid for a period of two years from the date of its grants during which period all development works in the colony shall be completed.
29. Rule 13 of the rules provides for the renewal of licence in case a coloniser fails to complete the development works within the period specified and provides that while making an application he shall also submit an explanatory note indicating the details of development works which have been completed or are in progress or are yet to be undertaken and the reasons for non-completion of development works as required in terms of the licence granted to him.
30. Rule 14 of the Rules empowers the Director to renew the licence for a period of one year if he is satisfied after making such enquiries as he may consider necessary, that the delay in execution of development works was for reasons beyond the control of the coloniser.
31. Rule 15 of the Rules provides that coloniser shall commence the laying out of the colony and development works within a period of three months of the grant of licence and shall complete the same before the expiry of the period of licence.
32. Rule 16 of the Rules provides that after the colony has been laid out according to approved lay out plan and development works have been executed according to the approved design and specifications the coloniser shall make an application to the Director and after such scrutiny as may be necessary, the Director may issue a completion certificate.
33. Rule 18 of the rules specifies that where the execution of the lay out plans and the construction or other works is not proceeding according to the licence granted or is below specifications or in violation of the provisions of the Rules, the Director by a notice shall require the coloniser to remove various defects within specified period and there after hearing the coloniser, the Director may either cancel the licence or grant him further time for complying with the requirement. It is further provided that on cancellation of the licence no further works shall be undertaken or carried out by the coloniser.
34. Form LC-III, which is part of the Rules is the proforma of the letter written by the Director to the coloniser with reference to his application for the grant of licence to set up a colony. In the said proforma, the Director informs the coloniser that it was proposed to grant licence to him for setting up a colony and he was called upon to fulfil the conditions laid down in Rule 11 of the Rules. This letter is sent by the Director in compliance with the provisions of Rule 10 of the Rules. It is only after receipt of this letter that a Coloniser enters into an agreement with the Director in form LC-IV. Form LC-IV which is part of the rules is also annexed as Annexure P-l with the present petition. It is an agreement by owner of the land intending to set up a colony which he enters into with the Director for and on behalf of the Governor of Haryana. In the said agreement as well similar provision has been made as has been made in Section 3(3)(a)(iv) of the Act and Rule 11(1)(e) of the Rules. It is also provided in the said agreement that coloniser shall carry out all directions issued by the Director for ensuring due compliance of the execution of the layout and development works in accordance with the licence granted. 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 shall be binding on the owner.
35. From a perusal of the scheme of the Act and the Rules and various provisions of the Act and the Rules given above, it would be clear that grant of licence to a coloniser to set up a colony is under the control of the Director, within the frame work of the Act and the Rules, it would also be clear from the above that it is the duty of the coloniser to construct at his own cost or get constructed by any other institution or individual various schools, hospitals, community centres and other community buildings on the land set apart for this purpose for the benefit of the residents of the colony. The Act and the rules also provide that if so desired by the Government, the coloniser shall also transfer to the Government at any time, free of costs the land set apart for schools, hospitals, community centres and community buildings and in that case the Government shall be at liberty to transfer such land to any person or institution including local authority on such terms and conditions as it may deem fit. The object of this provision appears to be to ensure that community buildings are built for the residents of the colony. In the present case, it has come on record that the petitioner-company had undertaken the construction work only on 4 or 5 sites out of 104 sites reserved for community buildings. (According to the petitioner company only 13 sites are covered in the licence which is valid upon 1987 but after including the sites in respect of the licences which were granted to the petitioner and its associate companies in 1993-94, the total number of sites would come to 104). It has also come on record that the petitioner company had already transferred 13 sites to various trusts and various bodies in 1987 on 99 years lease at nominal rate of Rs. 100/- per years. Thus, those 13 sites which already stood transferred to various trusts at nominal rates were not available to the colonisers for being transferred to the State Government and the State Government could not exercise its option for the transfer of those sites to itself free of cost. It has also come on record that the Director issued letter dated 16.8.1988 Annexure R-3 to the petitioner company informing it that the Government had decided that all the sites earmarked for community buildings may be transferred to the Government in terms of Section 3(3)(a)(iv) of the Act and Rule 11(1)(e) of the rules as also clause (b) of the agreement executed with the Director. The petitioner-company was also called upon to execute a conveyance deed in respect of the land reserved for community buildings shown in the lay out plan. A reminder was issued to the petitioner-company vide letter dated 5.3.1992 Annexure R-4 to the same effect. Subsequently, vide letter dated 26.7.1994 Annexure R-5, the petitioner Company was directed to give possession of 49 sites earmarked for community uses as mentioned in its letter dated 3.4.1992. It was after issuance of the said letter dated 26.7.1994 that possession of 49 sites was delivered to the Government in August, 1994.
36. It is in this background that validity of letter dated 11.1.1988 Annexure P-2 and the subsequent letters dated 7.10.1993 and 4.5.1994 Annexures P-7 and P-8 respectively, may be considered vis-a-vis the powers of the Director under various provisions of the Act and the rules referred to above. As mentioned above, as per rule 4 of the rules, it is provided that in the lay out plans of a colony other than an industrial colony, the land reserved for road, open spaces, schools, public and community buildings and other common uses shall not be less than 45 per cent of the gross area of the land under the colony. Thus, in a colony being developed by a coloniser, he is required to leave not less than 45 per cent of the gross areas of the land under the colony, for roads, open spaces, schools, public and community buildings etc. It is only the remaining 55 per cent of the gross year of the land under the colony that a coloniser is empowered to dispose of by way of plots etc. Under Section 3(3)(a)(iv) of the Act read with Rule 11(1)(e) of the Rules, a coloniser is required to construct at his own costs or get constructed by another institution or individual at its costs schools, hospitals, community centres and other community buildings on the land set apart for this purpose. From a perusal of these provisions, it would be clear that basic liability to construct or get constructed various community buildings is of the coloniser. It is also provided therein that if desired by the Government a Coloniser is required to transfer, at any time, free of cost, the land set apart for these community buildings and if the Government exercises this option, it would be at liberty to transfer the land to any person or institution including a local authority and while doing so, the Government may impose any terms or conditions which it may deem fit. In the present case since the petitioner-company had started construction only on 4 or 5 sites meant for community building out of total 104 sites and had transferred 13 sites to various trusts by way of lease for 99 years at nominal rate of Rs. 100/- per year in the year 1987, the Government had exercised its option and had directed the petitioner company to transfer all sites meant for community building to the Government vide letter dated 16.8.1988 Annexure R-3, keeping that in view, the Director had issued letter dated 11.1.1988 annexure P-2, which is the impugned letter in the present writ petition calling upon the petitioner company to pay the external development charges at the rate of Rs. 3.72 lacs per gross acre and in the said letter it was made clear that in the said external development charges a sum of Rs. 61,000/- per gross acre had been included on account of internal community buildings for which no recovery shall be made form the plot holders. The idea behind this recovery of Rs. 61,000/- per gross acre from the Colonisers towards internal community buildings was to construct various community buildings on the sites reserved for community buildings which sites the Government intended to get transferred in its name so that community buildings may be got constructed on those sites for the benefit of plot holders/residents of the said colony. As made clear above under the provisions of the Act and rules referred to above, the Government was competent to ask the coloniser to transfer to the Government at any time, the land set apart for community buildings, free of cost, and the Government was also competent to transfer said land to any person or institution including local authority on such terms and conditions as it may deem fit. In the present case the Government wanted to get the community buildings constructed on the sites reserved for those buildings and considering the facts and circumstances of the present case, the Government thought it fit to ask the coloniser to pay a specified sum for the construction of those community building. In our opinion, the petitioner-Company being a coloniser, was bound to comply with the said direction of the Director which was issued under the provisions of the Act and the Rules.
37. There is another aspect of the matter. As referred to above even the definition of “internal development works” includes any other work that the Director may think necessary in the interest of proper development of the colony. It is a matter of common knowledge that construction of various community building like schools, hospitals, community centres and other community buildings would be in the interest of proper development of a residential colony. Since the petitioner-company has asked for the licence for setting up a residential colony under the provisions of the Act and Rules, it was the duty of the petitioner-company to construct various community buildings referred to above, and it having failed to do so, in our opinion, the Director was competent to direct the petitioner-company to pay for the construction of community buildings in the interest of proper development of the said colony. The mere fact that the amount for the construction of community buildings was included towards external development charges in the letter dated 11.1.1988 Annexure P-2, in our opinion, would not be sufficient to quash the letter dated 11.1.1988 especially when in the said letter Annexure P-2, it was made clear by the Director that amount of Rs. 61,000/- per gross acre had been included in the external development charges on account of community buildings. The Director-respondent No. 2 in the written statement and various other replies/additional affidavits had made it clear the circumstances under which a demand towards internal community was made along with external development charges in the letter dated 11.1.1988. In our opinion, the Director was competent to ask the petitioner company to pay for the community buildings while asking the petitioner-company to pay towards external development charges.
38. In Gulmohar Estates Limited and Ors. v. State of Haryana and Anr., (1997-2) 116 P.L.R. 547, a Division Bench of this Court was considering the validity of the order of cancelling the licences granted to the writ petitioners under the provisions of the Act and the Rules referred to above, on the ground of non-payment of external development charges within time prescribed. While considering the said Act, it was held by the Division Bench as under:-
“We are further of the opinion that the petitioner cannot challenge the terms and conditions of the contract while it had entered with the Haryana Urban Development Authority and on the basis of which it amassed wealth by developing a colony and allotting flats and other residential apartments to private individuals. No doubt, the licence was issued to the petitioner under the provisions of 1975 Act and the rules framed there under, but only on that account the petitioner cannot invoke the provisions of Articles 14 of the Constitution of India for the purpose of being relieved of its burden to pay the amount due to the public authority in terms of the agreement and in any case the writ jurisdiction under Article 226 of the Constitution of India cannot be allowed to be invoked in such like matters.”
39. The Division Bench had also placed reliance on the law laid down by Hon’ble Supreme Court in Panna Lal and Ors. v. State of Rajasthan and Ors., 1975(2) S.C.C. 633 in which it was held by their Lordships that a person who had entered into a contract with the State and its agencies cannot resile from the express obligation undertaken by him. In the reported case before the Supreme Court, the licenses had sought quashing of the conditions of contract on the ground that the same were extremely onerous and arbitrary. It was also held by their Lordships of the Supreme Court in the said case that the licences in that case were contracts between the parties and the licensees voluntarily accepted the contracts and they fully exploited the contracts to their advantage to the exclusion of others and now it was not open to them to resile from the contracts on the ground that terms of payment were onerous because the licencees accepted the licences by excluding their competitors and it would not be open to the licencees to challenge the terms either on the ground of inconvenient consequence of terms or of harshness of terms. The Division Bench of this Court in Gulmohar Estates case (supra) had also placed reliance on the law laid down by Hon’ble Supreme Court in Assistant Excise Commissioner and Ors. v. Issac Peter and Ors., J.T. 1994(2) S.C. 140 in which it was held by their Lordships that in a case of contracts freely entered into with the State, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract i.e. State for the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. It was further held that in such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts and the laws relating to the contracts. The Division Bench also placed reliance on the law laid down by Hon’ble Supreme Court in Rajinder Singh v. State of Madhya Pradesh and Ors., J.T. 1996(7) S.C. 216 in which their Lordships reiterated the principles laid in down Har Shankar v. The Deputy Excise and Taxation Commissioner and Ors., A.I.R. 1975 S.C. 1121 and had held that writ jurisdiction is not intended to facilitate avoidance of obligation voluntarily incurred. This judgment of the Hon’ble Supreme Court in Har Shankars case (supra) was also considered by the Division Bench in Gulmohar Estates case (supra). After discussing various other authorities, it was held by the Division Bench of this Court in Gulmohar Estates case (supra) that the petitioner could not invoke the jurisdiction of this court under Article 226 of the Constitution of India to relieve itself of the burden which it had voluntarily incurred on the basis of the agreement.
40. In view of the law laid down by the Apex Court in the above mentioned authorities and in view of the facts and circumstances of the present case referred to above, it could not be said that the Director had no power to ask the petitioner-company to pay for the community buildings or that the powers given to the Director are arbitrary, without any guide-lines or instructions, as submitted by the learned counsel for the petitioner-company before us. We are further of the opinion that the petitioner company was bound to comply with the directions of the Director to pay for the community buildings, as contained in the letter Annexure P-2 and the subsequent letters Annexures P-7 and P-8.
41. It was then submitted before us by the learned counsel for the petitioner-company that the Government could not exercise the option under Section 3(3)(a)(iv) of the Act. It was submitted that it was for the colonisers to construct various community buildings or to get the same constructed from any other individual or institution. However, we find no force in this submissions to be exercised by the Government at any time under Section 3(3)(a)(iv) of the Act whereby the Government is competent to ask the colonisers to transfer free of cost, the land set apart for the community buildings. In the present case, the Government had called upon the petitioner-company to transfer those sites vide letter dated 16.8.1988 Annexure R-3 and the subsequent reminder dated 5.3.1992 Annexure R-4 and it further directed the petitioner-company to give possession of 49 sites earmarked for the community buildings vide letter dated 26.7.1994 Annexure R-5. In our opinion, the exercise of this option by the Government was perfectly legal and justified.
42. It was then submitted before us by the learned counsel for the writ-petitioner that in the letter dated 11.1.1988 Annexure P-2, the Director had also imposed an embargo at the petitioner-company that it would not recover from the plot holders towards cost of community buildings, as demanded by the Directors at the rate of Rs. 61,000/- per gross acre. We find no force in this submission as well of the learned counsel for the petitioner. As referred to above, under Section 3(3)(a)(iv) of the Act, it was the duty of the coloniser to construct various community buildings at his cost or get the same constructed and even the Government was empowered to get the land free of cost from the Coloniser for the community buildings and the Government was competent to transfer the said land to any person or institution on such terms and conditions as it may deem fit. While exercising this power, the Government had directed the petitioner company to pay Rs. 61,000/- per gross acre on account of community buildings. vide letter, dated 11.1.1988 and subsequently, the Government had exercised its option vide letter dated 16.8.1988 that various sites which were earmarked for the community buildings may be transferred to the Government. Once the colonisers had sold the plots of various plot-holders, they were not competent to effect recovery towards cost of community buildings as it was the duty of the colonisers to construct the community buildings or to get the same constructed for the use of the plot-holder/residents of the colony.
43. It was then submitted before us by the learned counsel for the petitioner that in the letter dated 11.1.1988 Annexure P-2, the Director had asked the petitioner-company to pay Rs. 3.72 lacs per gross acre towards external development charges which included Rs. 61,000/- per gross acre on account of internal community buildings. It was submitted that in the written statement filed by respondent No. 2, the Director, it was submitted that private colonisers in the State of Haryana were directed to pay Rs. 61,000/- per gross acre for constructing only portion of community/institution buildings which are to be transferred by the private colonisers to the State Government, free of cost and that amount of Rs. 61,000/- per gross acre takes care of only a portion of the community sites carved out in the colony, It was submitted that having demanded Rs. 61,000/- per gross acre towards internal community buildings and not clarifying that this demand was only for constructing a portion of the community buildings, the Director now could not be allowed to urge that this demand was only for constructing portion of community building. It was submitted that in the additional affidavit which was filed by Secretary to the Government of Haryana in compliance with the direction dated 5.5.1995 issued by this Court, it was mentioned that the sites to be constructed be the Government out of said Rs. 61,000/- per gross acre were approximately 1/4th of the total community sites. It was submitted by the learned counsel for the petitioner that the respondents now could not be allowed to change their stand already taken by them in the letter dated 11.1.1988.
44. After hearing learned counsel for the parties and after going through the records, in our opinion, the letter dated 11.1.1988 Annexure P-2, 7.10.1993 Annexure P-7 and 4.5.1994 Annexure P-8 (which have been challenged by the writ petitioner in the present writ petition) could not be held to be illegal on the ground that in the reply and the subsequent additional affidavits the Government had clarified that only some of the community buildings would be constructed by the Government out of the amount of Rs. 61,000/- per gross acre to be recovered from the petitioner-company towards the internal community buildings. In the additional affidavit dated 12.5.1995 submitted by Shri Pradeep Kumar, Secretary to the Government of Haryana, Town and Country Planning Department, it was clarified that total number of community buildings which were proposed to be constructed with the help of Rs. 61,000/- per gross acre to be recovered from the petitioner were only 14 in number as per the chart filed along with the additional affidavit and beside that the Government was also willing to start construction on 10 nursery schools sites even though these do not form part of Rs. 61,000/- per gross acre being levied on the Colonisers. It was further made clear in the said additional affidavit that if the petitioner-company is prepared to make payment at the rate of Rs. 61,000/- per gross acre towards 1/4th of the community building which are going to be constructed on 25 sites referred to above, and the petitioner is prepared to develop the balance sites, the Government was prepared to hand back sites in excess of 25 sites to the petitioner, if the petitioner undertakes to construct those sites within the stipulated time. In view of the stand taken by the Government in the additional affidavit, referred to above, in our opinion, it could not be said that respondents have changed their stand, as claimed by the petitioner. On the other hand, as referred to above, it has been made clear by the respondents that only some of the buildings would be constructed by the Government out of the amount recovered from the petitioner-company as per letter dated 11.1.1988 Annexure P-2, and the petitioner-company would be allowed to construct the remaining sites set apart for community buildings.
45. It may also be mentioned here at this stage, that the Director in one of the additional affidavits, had made it clear that the Government had now framed a policy of including expressly the value of community buildings in the internal development works and ensuring that approximately 1/4th of the total cost of internal development works would be secured by a Bank guarantee. It is also mentioned in the said additional affidavit that as a matter of policy, the Government had decided that no alienation (in respect of the sites reserved for community buildings) after 7.8.1991 would be regularised without approval of the Director. It is no doubt true that this policy which was framed by the Government during pendency of the present writ petition may not be applicable to the present case as such, as submitted by learned counsel for the petitioner-company, but so far as the present case is concerned, even otherwise, the petitioner-company would not be entitled to any relief in the present writ petition.
46. As referred to above, under Rule 12(2) of the Rules, the licence granted to a Coloniser shall be valid for a period of two years from the date of its grant during which period all development works in the colony shall be completed and a certificate of completion obtained from the Director. Rule 13 of the rules provides for extension of time for completing the development works in the colony for a period of one year. Rule 15 of the Rules, provides that Coloniser shall commence the laying out of the colony and development works with in a period of three months of the grant of licence and shall complete the same before expiry of the period of licence i.e. within two years which would be extended by another year. Rule 16 of the rules provides that after a colony had been laid down according to the approved lay out plan and development works have been executed according to the approved design and specification, the coloniser shall make an application for the issuance of a completion certificate and after such scrutiny as it may think necessary, the Director may issue a completion certificate.
47. Section 3(3)(a)(iii) of the Act read with rule 11(1)(d) of the Rules provides that the coloniser shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services for a period of five years from the date of issue of completion certificate and thereupon to transfer all such roads, open spaces, public parks and public health services, free of cost, to the Government or local authority as the case may be. All these provisions in the Act and the rules would show that a coloniser is duty bound to complete all development works in the colony within a specified period. The idea behind this time limit is only to safeguard the interest of various plot-holders/residents of the colony so that they may not be left in the lurch by the colonisers after selling plots to them. A complete control over the activities of the colonisers is envisaged under the provisions of the Act and the Rules, as referred to above. In our opinion, the action of the Director in calling upon the petitioner-company to part for the construction of some of the internal community building could not be termed as arbitrary nor could it be termed as beyond the powers of the Director under that Act and rules, referred to above. On the other hand, in our opinion, this action of the Director is in consonance with the control, which the Director has over the coloniser under the Act and the Rules.
48. In view of the detailed discussion above, finding no merit in this writ petition, the same is hereby dismissed with no other as to costs.