JUDGMENT
M.M. Kumar, J.
1. In this petition filed under Article 227 of the Constitution, the challenge by the defendant-petitioner is to the judgment dated 30.10.2002 passed by the Additional District Judge, Faridabad, partially allowing the appeal preferred against the order dated 4.10.2002 passed by the Civil Judge (Senior Division), Faridabad. The Civil Judge (Senior Division) in his order dated 4.10.2002 has granted a conditional stay to the plaintiff-respondent, by allowing its application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (for brevity, ‘the Code’), that till the decision of the suit on merits, the defendant-petitioner were not to insist upon recovery of external development charges. A mandatory direction has also been issued to the defendant-petitioner to grant provisional sanction to the building plans submitted by the plaintiff-respondent within five days of submission of a certificate of Architect and after removing the technical objections. The order passed by the Civil Judge (Senior Division) was challenged in appeal before the Additional District Judge, Faridabad which appeal, as already stated, has been partially allowed. The plaintiff-respondent were directed that if the amount at the rate of Rs. 10 per Sq. yard is deposited within 15 days with the Municipal Corporation, Faridabad, then the order of recovery was to remain stayed during the pendency of the suit. The application for staying recovery was to be considered as dismissed if the amount was not deposited.
2. Brief facts of the case which have led to the filing of the instant revision petition and necessary for disposal thereof, may first be noticed.
3. The plaintiff-respondent filed a suit through its power of attorney, Deepak Kajriwal, Assistant Manager (Accounts and Administration) which the averments that the original name of the Company was M/s. Indian Aluminium Cables Limited, which was incorporated on 17.10.1959 under the Companies Act, 1956. The name of the Company was changed to M/s Hindustan Vidyut Products Limited on 26.3.1998. The land on which the industrial building has been built is situated at Delhi-Mathura road which was declared as scheduled road. Accordingly, the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for brevity, ‘the 1963 Act’) used to govern such areas. At one stage, the land underneath the industrial unit was intended to be acquired but the plan to acquire the same was dropped. The factory of the plaintiff-respondent was permitted to continue to use the site for the existing purpose and its future expansion was also permitted subject to the approval of the building plans with the condition that it would pay proportionate development charge as and when required by the Director, Town and Country Planning. The plaintiff-Company had already invested a huge capital and had gone in production in the year 1961. It is further averred that the Director, Urban Estate, Punjab (before Haryana was carved out on 1.11.1966) on 17.4.1965 issued a letter confirming the policy of the Government that as and when such development is to be carried out, external development charges were to be paid. On 8.8.1969, the Administrator, Urban Estate, Faridabad approved further building plans submitted by the plaintiff-respondent. In the year 1971, the Faridabad Complex (Regulation & Development) Act, 1971 (for brevity, ‘1971 Act’) came into force and the Haryana Municipal Act, 1973 (for brevity, ‘the 1973 Act’) was also enacted. The Chief Administrator, Faridabad Complex, has been clothed with the powers exercisable under the provisions of the 1973 Act. However, erection of building is regulated by section 43 of the 1971 Act. On 21.12.1971, further additional building plans for raising construction and modification were also duty sanctioned and approved by the Administrator Urban Estate, Haryana, Faridabad. The Administrator issued a letter dated 18.9.1974 demanding a sum of Rs. 7,62,330/- at the rate of Rs. 15/- per sq. yard and asked the plaintiff-respondent to deposit 25% of the amount of development charges. In their reply, the plaintiff-respondent intimated that since the Urban Estate or the Faridabad Complex Administration had failed to provide any facility as per the agreement, therefore, the said authorities were not entitled to claim any development charge. Later on, the development charges were reduced to Rs. 10 per sq. yard as per agreement between the Faridabad Industries Association and the Government. An amount of twenty per cent of total amount as initial payment was required to be paid in lump sum by those having an area of plots which is less than four acres. The balance 80% was to be payable in 10 equal yearly instalments along with interest at the rate of 7% per annum. The industries which have their area of more than four acres were required to deposit at the rate of Rs. one per sq. yard per year in 10 equal instalments and in their case, an initial amount of not less than Rs. 38,720/- along with interest was required to be paid. Accordingly, on 26.5.1976, the Administrator, Urban Estate Faridabad demanded development charges at the rate of Rs. 10/- per sq. yard, the total amount of which comes to Rs. 5,08,200/-. This amount was also not paid on the ground that no development facilities have been provided to the plaintiff-respondent as per the agreement executed between the parties.
4. On 11/12.9.1975, the plaintiff-respondent addressed a letter to the Chief Administrator, Faridabad Complex Administration intimating flooding of their factory area during rainy season. However, on 25.11.1976 the Administrator advised the plaintiff-respondent to deposit 20% of the development charges and the balance 80% was to be paid in ten equal instalments with 7% interest per annum. On 31.12.1976, a demand of Rs. 51,425/- as initial payment and the balance amount in ten equal yearly instalments at the rate of Rs. 65,895.87 was raised. On 18.2.1977, the Director Town and Country Planning raised a demand of Rs. 1,17,320.87 out of which Rs. 25,712.50 towards first instalment at the rate of 0.50 paise per sq. yard have already been paid. The amount was deposited with the Estate Officer, Urban Estate, Faridabad. Some other intervening correspondence has also been mentioned in various paragraphs of the suit. On 23.1.1987, demand of development charges was raised. The demand for recovery of development charges was raised by the Haryana Urban Development Authority (for brevity, ‘HUDA’) to the tune of Rs. 4,88,538 along with interest at the rate of 10%. This letter was also replied. Eventually, the HUDA had issued a show cause notice to the plaintiff-respondent demanding a sum of Rs. 1,18,35,275/- as due on account of external development charges. The allegations are that the aforesaid demand has been raised in violation of terms and conditions of the agreement entered into between the Director, Town and Country Planning and the Administrator Urban Estate.
5. The plaintiff filed a suit for declaration and for permanent and mandatory injunction being civil suit No. 143 dated 4.6.2002 against HUDA, Faridabad in which an injunction order has been passed by the Civil Judge (Senior Division), Faridabad restraining the HUDA from recovering the said amount subject to deposit of the external development charges at the rate of Rs. 10/- per sq. yard with interest at the rate of 7% per annum within a period of 15 days from the date of passing of the stay order. The plaintiff-respondent submitted his new building plan for additional construction/modification on 5.3.2002. Certain objections were raised by the defendant-petitioner who issued a letter dated 5.4.2002 raising certain objections and demanding the external development charges to the tune of Rs. 1,18,35,275/-. A reply was sent to the letter claiming that the HUDA had already raised the demand for payment of external development charges and, therefore, the same charges cannot be demanded by another governmental authorities. The defendant-petitioner again raised a demand on 4.6.2002 alleging that the HUDA is not competent to raise any such demand. On 18.6.2002, after the filing of the suit, the plans submitted by the plaintiff-respondent have been rejected and sanction has been refused to those plans. However, it is claimed that a sum of Rs. 13,59,219 has been deposited on 18.6.2002 with the HUDA as per the direction issued on 4.6.2002 by the Civil Judge (Senior Division), Faridabad. It is claimed in the suit that no development facilities have been provided in accordance with the terms and conditions envisaged in the letter dated 19.4.1965.
6. Along with the suit, an application under Order 39 Rules 1 and 2 of the Code was also filed. The defendant-petitioner filed their reply taking the stand that under Sections 6 and 7 of 1963 Act read with Sections 347 and 348 of the Haryana Municipal Corporation Act, 1994 erection or re-erection of the building and use of land in declared controlled area cannot be permitted without approval of the Director i.e. the Commissioner, Municipal Corporation, Faridabad and, therefore, development charges have to be paid.
7. The trial Court held that the plaintiff-respondent having already paid development charges to HUDA, the defendant-petitioner i.e. Municipal Corporation was not entitled to raise demand of external development charges. The trial Court has also found that HUDA has acknowledged the payment of Rs. 1,35,9,219/- in lieu of external development charges. Even a suit between the plaintiff-respondent and the defendant-petitioner disputing the amount due is pending. The dispute now is between the defendant-petitioner and HUDA-two statutory authorities. The defendant-petitioner was restrained from recovery of external development charges. The trial Court further held that there was no ground available under Section 254 of the Haryana Municipal Act, 1973 to refuse sanction to the site plan on the basis of non-payment of external development charges.
8. On appeal, learned Additional District Judge, Faridabad modified the order passed by the Civil Judge and held that no appeal was maintainable against the order passed on application filed under Section 151 of the Code. He further held that direction issued by the Civil Judge for according sanction to the site plans, therefore, cannot be interfered with. As regards the application filed under Order 39 Rules 1 and 2 of the Code, the Additional District Judge, referred to the settlement arrived at between the Industry Association and the HUDA. Firstly, demand was raised for a sum of Rs. 1,17,320.87 on account of external development charges by the Municipal Corporation, Faridabad and similar demand had earlier been raised by the HUDA. The Civil Judge in the suit filed against HUDA has injuncted HUDA from making recovery of the demanded amount subject to deposit of external development charges at the rate of 7% per annum. The afore-mentioned amount is said to have been deposited. The view taken by the learned Additional District Judge, Faridabad reads as under:-
“The plaintiff has now filed this suit against the MCF seeking the same relief. The learned trial court has observed that since the dispute is between the two statutory authorities, the plaintiff cannot be made to suffer for it. 1 agree with the counsel for the respondent that the contents of letters written from time to time are to the effect as if the amount is to be paid to the HUDA and not to the MCF. However, the counsel for the appellate has referred to section 42 of Faridabad Complex (Regulation and Development) Act, 1971. In view of this section, the power of Director, Town and Country Planning who was responsible to recover the external development charges, is to be exercised by the Chief Administrator of the Faridabad Complex (now MCF). The counsel for the respondent could not point out any provision vide which HUDA can recover the amount on account of external development charges. This being so, the amount deposited in the Court in another suit for being paid to HUDA, can prima facie be not taken to be discharge of liability as far as MCF is concerned.
The counsel for the respondent-plaintiff has submitted that since he has already deposited the amount, he cannot be penalised twice but this argument is devoid of force. Because it is not only the HUDA but also the MCF who has started demanding the amount sometime in April 2000. The plaintiff ought to have filed suit by impleading HUDA and MCF both in one single suit so that it could be decided as to which authority is entitled to recover the amount. Thus, the order of the learned trial court is modified to the extent that if the amount is deposited at the rate of Rs. 10/- per sq. yard with MCF within 15 days, then the MCF would be restrained from recovering the amount. I agree with the counsel for the respondent that imposition of penalty and recovery amount of Rs. 1,18,69,844 cannot be prima facie charged because the policies framed by HUDA from time to time can be given effect prospectively and not retrospectively.
No other point has been urged.
Resultantly, as far as the relief qua sanctioning of site plan is concerned, the appeal fails and is dismissed. However, with regard to the disputed amount, the appeal is partly allowed to the effect that if the amount at the rate of Rs. 10/- per sq. yard is deposited within 15 days with the MCF, then the order of recovery shall remain stayed till the disposal of the suit. If this amount is not deposited, then the application qua stay of recovery shall be deemed to be dismissed. The appeal is disposed of accordingly.”
9. I have heard Mr. Surya Kant, learned senior counsel for the defendant-petitioner who has argued that the Director Town and Country Planning is equivalent to the Chief Administrator of Faridabad Complex under Section 42 of the 1971 Act. The learned counsel has also submitted that Haryana Development and Regulation of Urban Act, 1975 (for brevity, ‘the 1975 Act’) envisages the recovery of external and internal development charges. In this regard, he has referred to Section 2(g) and 2(i) of the said Act. Learned counsel for the petitioner also referred to the provisions of 1963 Act and the Punjab Scheduled Road and Controlled Area Restriction of Unregulated Development Rules, 1965 (for brevity, ‘1965 Rules’). Referring to Rule 26(3) of Chapter IV-A of 1965 Rules, learned counsel has argued that the powers which were exercised by the Director Town and Country Planning under 1965 Rules have been exercised by the Chief Administrator, Faridabad Complex. He has further submitted that once the courts below have reached a conclusion that a sum of more than five lacs was due to the defendant-petitioner in the year 1976 then it has exceeded its jurisdiction by directing the payment of external development charges at the rate of Rs. 10/- per sq. yard. Explaining the concept of external development charges, learned counsel has submitted that when such charges are levied, vision of the whole township has to be kept in mind and not merely to the facilities to be given to the individual industry. At the asking of the Court, learned counsel stated that if penalties and compound interest is ignored, then total payable amount comes to about Rs. 70 lacs.
10. Mr. M.L. Sarin, learned counsel for the plaintiff-respondent has argued that under the 1963 Act and 1965 Rules, a scheduled land has to be converted for its use for industrial purpose. According to the learned counsel, the afore-mentioned 1963 Act has no application in so far as the development charges are concerned. For the afore-mentioned proposition learned counsel has placed reliance on a Division Bench judgment of this court in the case of Pritam Singh and Anr. v. State of Haryana, (1995-3)111 P.L.R. 762. Learned counsel has also urged that charges demanded by the HUDA are only for external development as is clear from Annexure R1 at page 71. He maintained that no revision petitions competent in view of the judgment of the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Anr. v. Ajit Prasad Tarway, A.I.R. 1973 SC 76 and Essen Deinki v. Rajiv Ku-mar, A.I.R. 2003 S.C. 38.
11. After hearing the learned counsel at a considerable length, I do not feel persuaded to take a view different than the one taken by the learned Additional District Judge. It is well settled by a catena of judgments that the revisional jurisdiction of this Court cannot be exercised by invoking Article 227 of the Constitution, unless a case for grave injustice has been made out. Under Section 115 of the Code, the Supreme Court in Ajit Prasad Tarway’s case (supra) has held that if the order of the first appellate Court is not even in accordance with law, then the same cannot be interfered with, once it is concluded that the order was within the jurisdiction. The question then is whether Article 227 of the Constitution could be invoked by the petitioner? This question has been considered by the Supreme Court in Laxmikant Revchand Bhojwani, v. Pratap Singh, J.T. 1995(7) S.C. 400; Mohd. Yunus v. Mohd. Mutaqim and Ors. A.I.R. 1984 S.C. 38; Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr., A.I.R. 1975 S.C. 1297; Khalil Ashmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, A.I.R. 1988 S.C. 19\84; Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam, A.I.R. 1987 S.C. 117; Khimji Vidhu v. Premier High School, A.I.R. 2000 S.C. 3495; Roshan Deen v. Preeti Lal, (2002)1 S.C.C. 100 and Quseph Mathai v. M. Abdul Khadir, (2002)1 S.C.C. 319.
12. From the afore-mentioned judgments, the principles for exercise of jurisdiction by this Court under Article 227 of the Constitution emerges are as under:-
1) where the subordinate court or the Tribunal has exceeded its jurisdiction;
2) where the subordinate court or the Tribunal has refused to exercise its jurisdiction;
3) where the exercise of jurisdiction has resulted into violation of fundamental rights;
4) where the principles of natural justice have been flagrantly violated;
5) where the order passed results in manifest injustice.
13. In the case of Ouseph Mathai (supra) their Lordships of the Supreme Court has observed as under;-
“It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extra ordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.”
Similarly in Laxmikant Revchand Bhojwani ‘s case (supra), the Supreme Court adversely commented upon the endeavour of the High Court to extend jurisdiction in matters which are already occupied by other statutory authorities under the Rent Act. The observations of their Lordships read as under:
“Before parting with this judgment we would like to say that the High Court was not justified in extending its jurisdiction under Article 227 of the Constitution of India in the present case. The Act is a special legislation governing landlord-tenant relationship and disputes. The legislature has, in its wisdom, not provided second appeal or revision to the High Court. The object is to give finality to the decision of the appellate authority. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.”
The Supreme Court in M/s Essen Deinki’s case (supra) has again held that this Court should not act as a court of appeal while exercising jurisdiction under Article 227 of the Constitution. Placing reliance on an earlier judgment in Savita Chemicals (P) Ltd. v. Dyes and Chemicals Works Union, A.I.R. 1999 S.C. 413, their Lordships of the Supreme Court observed as under;-
“Needless to record that is total unanimity of judicial precedents on the score that error must be that of law and patently on record committed by the inferior Tribunal so as to warrant intervention it ought not to act as a Court of appeal and there is no dissension or even a contra note being sounded at any point of time till date. Incidentally, the illegality, if there be any, in an order of an inferior Tribunal, it would however, be a plain exercise of jurisdiction under the Article to correct the same as otherwise the law Courts would fail to subserve the needs of the society since illegality cannot even be countenanced under any circumstances.
In this context reference may also be made to a still later decision of this Court in the case of Savita Chemicals (P) Ltd v. Dyes and Chemicals Workers Union and Anr., 1999(2) S.C.C. 143, wherein this Court in paragraph 19 of the Report observed: “….. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear error of law….”
The principles enunciated by the Supreme Court in the afore-mentioned judgments impel me to make a brief reference to the facts of the case to ascertain any jurisdictional error or any error apparent on the face of record or any manifest injustice caused to the defendant-petitioner by the impugned order. The learned Additional District Judge in his order has held that the plaintiff-respondent has already deposited the external development charges with the HUDA wherein a restraint order has been issued by the Civil Judge (Senior Division), Faridabad on the condition that the plaintiff-respondent is to deposit external development charges at the rate of Rs. 10/- per square yard with interest at the rate of 7% p.a. from the date of passing of the order. It appears that similar charges are sought to be recovered by the defendant-petitioner. Despite that the Additional District Judge in the appeal has ordered the payment at the rate of Rs. 10/- per square yard within a period of 15 days. If the amount is paid, then the recovery sought to be made from the plaintiff-respondent is to remain stayed till the disposal of the suit. It has further been pointed out by the learned Courts below that the rate of Rs. 10/- per square yard has been fixed as per the agreement between the Industrial Association and the Government and the demand for recovery of Rs. 1,18,35,275/- has been raised in violation of terms and conditions of that agreement. The afore-mentioned amount concededly is inclusive of penalties and compound interest. Therefore, I do not feel persuaded to conclude that any injustice has been caused or there is any violation of any basic principle of natural justice. The discretion has been rightly exercised on the basis of relevant considerations. Therefore, the instant petition is liable to be dismissed.
For the reasons recorded above, this petition fails and the same is dismissed. How ever, in the peculiar facts and circumstances of the case, the Civil Judge is directed to dispose of the suit expeditiously, preferably within a period of six months. The parties are directed to co-operate failing which the Civil Judge would take all necessary steps for disposal of the suit. It is made clear that any observation made in this order or the orders of the Courts below would not constitute any expression of opinion on merits of the case.