CWP No.2805 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C. W. P. No. 2805 of 2008
Date of Decision: 26 - 11 - 2009
Barmalt (India) Pvt. Ltd. ....Petitioner
v.
State of Haryana and others ....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Arun Jain, Sr. Advocate with
Mr.Vishal Goyal, Advocate
for the petitioner.
Mr.Sunil Nehra, AAG, Haryana
for respondent No.1.
Mr.Raman Gaur, Advocate
for respondents No.2 and 3.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Petitioner-company has filed the present writ petition assailing
the impugned demand of Rs.2,81,46,805/- on account of external
development charges. These external development charges have been
raised vide demand notices dated 3.12.2007 and 6.2.2008, Annexures P12
and P14 respectively.
Since the controversy is under narrow compass, therefore, facts
which are necessary are stated. The land on which the petitioner-company
CWP No.2805 of 2008 [2]
is having its factory, was notified for acquisition under Section 4 of the
Land Acquisition Act, 1894 (hereinafter to be referred as, `the Act’).
Petitioner-company had filed objections under Section 5 of the Act and the
Government agreed to release land of the petitioner-company on 17.1.1985.
Clause 2(a) of the agreement executed on 5.12.1984 read as under:-
“(a) That the Promisee shall pay proportionate development
charges which shall be a first charge on the said land as
and when required and as determined by the Director in
respect of the external development works which may be
carried out in the area for the benefit of the said land.”
During the pendency of writ petition, Government of Haryana
issued another policy on 8.7.2002 (hereinafter to be referred as `2002
Policy’). It is not disputed that case of the petitioner fall under para 3 of the
policy. Para 3 of 2002 Policy read as under:-
“3. Review of development charges in respect of released
land only:-
In the case of released land it has been decided that full
development charges as intimated vide office letter No.22860-
72 dated 14.08.96, may not be charged. In such cases it has
been decided that internal development charges (I.D.C.) may
not be charged and external development charges may be
recovered at the following rates:-
S.No. Size of land Zones Rates of E.D.C.
1. Upto 75 sq. yd. In all three zones Rs.100/- per S. yd.
2. From 75 sq. yd. High potential zone Rs.150/- "
To 500 sq. yd. Medium potential Rs.125/- "
Zone,
Low potential Zone Rs.100/- ''
CWP No.2805 of 2008 [3]
3. More than 500 High potential zone Rs.200/- "
sq. yd. Medium potential Rs.175/- "
Zone,
Low potential Zone Rs.150/- ''
These development charges will be recovered as follows:-
(i) 25% before the land is released.
(ii) 75% in six annual installments along with 10% interest
per annum.
These facilities will also be given to the old cases where
beneficiaries have not paid the development charges or have
partly paid the development charges which will be adjusted
against the amount recoverable as per the above said rates.
These development charges will be valid upto 31.12.2002 after
which simple interest @ 10% will be added per annum.”
On the last date of hearing, Accounts Officer, Estate Office-II, HUDA,
Gurgaon submitted a calculation chart regarding the amount payable by the
petitioner-company. For facility of reference calculations furnished to this
Court are reproduced below:-
Total (EDC) cost Rs.1,29,89,350.00
As on 31.12.02 (As per HUDA
policy dt. 08.07.02)
Paid 13.10.1997 =Rs.601991.00 Rs.31,01,991.00
Paid 06.02.2001 =Rs.2500000.00
Rs.98,87,359.00
Delay interest @ 14% from Rs.41,52,691.00
01.01.03 to 31.12.2005 on
Rs.98,87,359.00 (3 years)
Delay interest @ 12% from Rs.38,56,070.00
01.01.06 to 31.3.09 on
Rs.98,87,359.00 (39 Months)
Delay interest @ 15% from 11,12,328.00
01.04.09 to 31.12.09 on
Rs.98,87,359.00 (9 Months)
Total recoverable 1,90,08,448.00
CWP No.2805 of 2008 [4]
Mr.Arun Jain. Senior Advocate appearing for the
petitioner-company state that as per para 3 of 2002 Policy, after
Rs.200/- per square yards are paid as external development charges,
only 10 per cent simple interest can be added per annum. Therefore,
as per calculation charge an error has been committed by the
respondents to charge 14 per cent, 12 per cent and 15 per cent interest
for different periods. To controvert this, Mr.Raman Gaur has stated
that 2002 Policy is to be read along with policy dated 14.8.1996
(hereinafter to be referred as, `1996 Policy’) which has been attached
as Annexure R3/1 with the written statement. 1996 Policy regarding
old cases read as under:-
“Old Cases
i) 25% within 30 days from the date of communication.
ii) Balance 75% in lump-sum within 120 days of the date of
communication without interest.
Or
In 4 equal annual instalments along with interest @ of 15% p.a.
or such higher rate as may be decided by the State Govt./
Authority from time to time. In case the payment is not made in
time penal interest @ 18% p.a. Shall be leviable as per the
policy of the Authority or such higher rate of interest as may be
decided by the State Govt./Authority from time to time.
You are, therefore, requested to take necessary action
recover the development charges from the released land and the
cases of change of land use in the fresh cases as well as old
cases according to the above decision of the Authority.
CWP No.2805 of 2008 [5]
You are also requested to send the statement of old cases
in the placed below Performa within one month where lands
has been released and the change of land use has been allowed
so that the development charges are worked out according to
the decision of the Authority and intimated to you for its
recovery from beneficiaries.”
Mr.Jain has stated that if 10 per cent interest is applied to the
calculation chart furnished by the Accounts Officer, then the amount which
is to be paid as on 31.12.2009 comes to Rs.1,68,08,510/-. He submitted that
this amount shall be paid on or before 31.12.2009 by the petitioner-
company. Regarding the remaining amount which comes to Rs.22 lacs,
there is a dispute between the parties regarding the rate of interest to be
applied.
Counsel for the parties are in agreement that for determination
of the amount due, the matter can be referred to the Arbitrator.
In Civil Writ Petition No.8685 of 2008, the Chief
Administrator, Haryana Urban Development Authority appeared before this
Court and made a statement regarding amicable resolution of the dispute
where HUDA is a party. It will be apposite here to reproduce a portion of
the statement made by the Chief Administrator:-
“It is further submitted that where there is delay in
payment, according to Schedule, and in case the allottees are
ready to make the payment, to facilitate the same, Haryana
Urban Development Authority has adopted a policy that after
April 2000 simple interest will be charged earlier thereto
compound interest is liable to be paid. Mr.Gupta states that
CWP No.2805 of 2008 [6]necessary policy will be formulated qua the interest which is to
be calculated and charged before 2000 so that Permanent Lok
Adalat is able to arrive at amicable resolution of the dispute.
Mr.Gupta has further stated that in those cases where
recovery of the amount has been stayed by this Court and cases
are pending for last more than three years, the concerned officer
of the Haryana Urban Development Authority will be
authorisied to waive off penal/compound interest and
allottee/housing society will be provided an opportunity to pay
the amount in instalments. He has further submitted that in all
other cases where plots have been resumed taking into
consideration that dispute ought to be resolved Haryana Urban
Development Authority will adopt a positive approach.”
Copy of the order dated 16.11.2009 passed in Civil Writ
Petition No.8685 of 2008 is taken on record. The parties are also in
agreement that any retired Judge of this Court who is a member of
Permanent Lok Adalat may be appointed as Arbitrator. Accordingly, the
Senior Most Presiding Judge of the Lok Adalat may himself act as an
Arbitrator or assign the matter to any other Judge who is a member of
Permanent Lok Adalat. The Arbitrator shall fix his own remuneration. The
remuneration of the Arbitrator shall be paid by the petitioner-company. The
Arbitrator shall take into consideration Annexure P16, 2002 Policy and
Annexure R3/1, 1996 Policy along with order dated 16.11.2009 passed by
this Court in Civil Writ Petition No.8685 of 2008. The Arbitrator shall
decide the matter within two months from the date of receipt of certified
copy of this order. The parties are also in agreement that decision of the
CWP No.2805 of 2008 [7]
Arbitrator shall be binding upon them. With these observations, the present
writ petition is disposed of.
( KANWALJIT SINGH AHLUWALIA )
November 26, 2009. JUDGE
RC