M/s. Haryana Telecon Limited vs State of Haryana and Others

Satish Kumar Mittal, J.—In the present writ petition, the petitioner Company is praying for quashing the demand of External Development Charges raised by the Haryana Urban Development Authority (hereinafter referred to as ''the HUDA'') vide letter dated 7.10.2009 (Annexure P-28) on account of release of certain land of the petitioner Company from acquisition. The brief facts of the case are that the petitioner Company, after obtaining Registration, in the year 1988, set up an industrial unit on the land measuring 160 Kanals 12 Marlas, situated in the revenue estate of village Kheri-Sadh, District Rohtak. The said unit was set up with foreign collaboration under the license given by the Government of India. Before setting up the said industrial unit, all the requisite clearances, licenses and certificates were obtained from the Foreign Department, Industrial Department, Petroleum and Explosives Safety Organisation, and Town and Country Planning Department, Haryana. With regard to 125 Kanals 16 Marlas of land, ''No Objection Certificate'' to the petitioner Company was issued by the Director, Town and Country Planning Department, Haryana, vide letter dated 16.4.1991 (Annexure P-4), as at that time, the said area was not falling under the controlled area'' as declared under the provisions of the Punjab Scheduled and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter referred to as ''the Act of 1963''). Subsequently, for another portion of land measuring 16 Kanals, ''No Objection Certificate'' was granted by the said Department to the petitioner Company vide letter dated 19.12.1991 (Annexure P-6), as the said area was also falling out of the controlled area. Regarding 7 Kanals 6 Marlas of land, which was falling under the controlled area, ''Change of Land Use'' was obtained by the petitioner Company on payment of conversion charges vide letter dated 9.12.1993 (Annexure P-5). Regarding the remaining land measuring 11 Kanals 10 Marlas, ''Change of Land Use'' was also granted by the Director, Town and Country Planning, in the year 2008. Thus, on the aforesaid entire land, the petitioner Company set up the industrial unit after obtaining necessary permissions from the competent authorities under the various Acts.

The petitioner Company got approved the building plans from the State as well as the Central Government and the Chief Inspector of Factories, and then raised huge constructions on the above said land. On 18.12.1990, the petitioner Company was also granted Industrial licence under the I.D.R. Act, 1951 for manufacturing of Communication Cables. On 23.11.1990, the Government of India, Ministry of Industry, Department of Industrial Development, issued licence for foreign collaboration with M/s. Wiener Cables, Austria. The Ministry of Commerce and Industry, also granted permission to the petitioner Company in the year 2001 for manufacturing of insulated wires and cables, including manufacture of optical fibre cables.

It is the case of the petitioner Company that in view of the aforesaid factual position, the industrial unit was set up by the petitioner Company with the permission of the State as well as the Central Government, therefore, as per the State Government policy and the law laid down by the Hon''ble Apex Court and this Court, the land of the petitioner Company could not have been acquired. However, the State Government, vide notification dated 20.8.2007 (Annexure P-13) issued u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act''), proposed to acquire 303.69 acres of land situated in the revenue estate of village Gaddi Bohar, Khedi Sadh and Khrawar, Tehsil and District Rohtak, for developing Sector 27A-B Part in Rohtak, for provision of Draft Development Plan of Rohtak by the HUDA. In the said notification, 85 Kanals 8 Marlas land of the petitioner Company was proposed to be acquired. Against the acquisition of its land, the petitioner Company filed detailed objections u/s 5A of the Act. The State Government, while issuing declaration u/s 6 of the Act, on 24.12.2007, left out the land measuring 67.62 acres from the acquisition, but the aforesaid land of the petitioner Company was not left from acquisition. Then, the petitioner Company made a detailed representation to the Government, pointing out discriminatory attitude shown towards it, particularly for acquiring the land of the running industrial unit, which was contrary to the Government policy. The petitioner Company also challenged the action of discriminatory acquisition of its land by filing Civil Writ Petition No. 4515 of 2008 before this Court. During the pendency of the said petition, vide communication dated 7.11.2008 (Annexure P-20), it was intimated to the petitioner Company that its entire land, except the land measuring 13166 square meter, which was falling under the proposed 60 meter wide bye-pass and 30 meter wide Green Belt on both sides of the road, was released from acquisition. In view of the said communication, the petitioner Company withdrew the writ petition filed by it.

In the meanwhile, the residents of three villages raised hue and cry against acquisition of their lands by the aforesaid notification. The Government considered their representations. Ultimately, on the recommendations of the Deputy Commissioner, Rohtak, and the Director, Urban Estate, Haryana, the State Government dropped the entire acquisition of land falling beyond 60 meter road and 30 meter green belt on either side. The decision of the Government for dropping the aforesaid acquisition, except the land falling on the road and green belt, has been annexed with the petition as Annexure P-26.

It is the case of the petitioner Company that once the Government has dropped the acquisition, the order of releasing its land from acquisition has become infructuous, as the entire land of three villages, except the land falling on 60 meter wide bye-pass road and 30 meter green belt on both sides, has been released from acquisition, and the award was made only with regard to the land, which was acquired for the purpose of bye-pass road. Part of the land of the petitioner Company, measuring 13166 square meters, which falls on the bye-pass road, was acquired. Despite the fact that the Government has dropped the acquisition except certain land falling on the bye-pass road, the Estate Officer, HUDA, raised demand for External Development Charges from the petitioner Company vide letter dated 7.10.2009, on the ground that its land was released from the acquisition with a condition to pay the External Development Charges, therefore, the petitioner Company is liable to pay the same. It was stated in the letter that if the petitioner Company does not pay the External Development Charges, then the Department shall start the proceedings to reacquire the land. In these circumstances, the petitioner Company challenged the said demand by filing the present writ petition.

It is the case of the petitioner Company that much prior to the issuance of notifications under Sections 4 and 6 of the Act, it was a running industrial unit, which was set up after obtaining necessary permission, license, certificate etc. from the competent authorities. Moreover, as per the Government as well as the HUDA policies itself, the existing factory should not be acquired for development of residential and commercial Sector by the HUDA. Therefore, first acquiring the land of the petitioner Company, which is otherwise not permissible, and then releasing the same and asking for External Development Charges only from the petitioner Company is totally illegal, unlawful and unconstitutional. Apart from this, it is the case of the petitioner Company that when the entire acquisition pertaining to development of Sector 27A-B Part in Rohtak has been dropped and lands of all the land owners have been released, then no External Development Charges could be demanded from the petitioner Company, particularly when no such demand has been raised from any other individual, whose land was proposed to be acquired by the aforesaid notifications. It is further the case of the petitioner Company that it has neither any access nor any opening on the 60 meter wide bye-pass and 30 meter wide Green Belt on both sides of the road, constructed and developed by the HUDA. The petitioner Company has its access through an internal road on National Highway No. 10 (Delhi-Hisar Road) from the very beginning and the same is being used by it for ingress and outgress to its factory premises. Therefore, the petitioner Company is not liable to pay any External Development Charges to the HUDA, as no facility or service, whatsoever, has been provided to it, or has been availed by it.

On the other hand, the stand of the respondents is that the land of the petitioner Company was released vide letter dated 7.11.2008, issued by the Director, Urban Development Department Haryana, Panchkula, subject to the condition that the petitioner Company has to deposit the External Development Charges with the HUDA proportionate to the released land. Therefore, as per the said letter, the petitioner Company is bound to make the payment of External Development Charges, and the same has been rightly demanded by the HUDA vide letter dated 7.10.2009. It has not been disputed by the respondents that the entire acquisition, except the land falling under the proposed 60 meter wide bye-pass and 30 meter wide Green Belt on both sides of the road, was dropped by the Government. However, it has been contended that by constructing the said road, the HUDA has provided common services for the combined area, therefore, the petitioner Company is liable to pay the External Development Charges. It is not the case of the respondents that such External Development Charges are being charged from the other land owners, whose land was proposed to be acquired and subsequently released from acquisition, or whose land is falling on the road developed by the HUDA. It has also been stated by the Estate Officer, HUDA, Rohtak that the HUDA had widened National Highway No. 10 Delhi-Hisar Road as four lanes, to which the petitioner Company has access, therefore, the petitioner Company is liable to pay the External Development Charges. However, in the said affidavit, it has not been stated at all that such External Development Charges have been charged from any land owner or factory owner, whose land is falling on National Highway No. 10 (Delhi-Hisar Road).

We have heard learned counsel for the parties and gone through the pleadings and the documents annexed with the petition and the written statements.

Undisputedly, the petitioner Company set up its industrial unit on the land measuring 160 Kanals 12 Marlas, situated in the revenue estate of village Kheri-Sadh, District Rohtak, after obtaining requisite permission, license and certificate from the State as well as the Central Government and other competent authorities under various Acts, much prior to the proposed acquisition. It is also not disputed that when the ''No Objection Certificate'' and the ''Change of Land Use'' were granted to the petitioner Company by the Town and Country Planning Department, Haryana, the requisite fee/charges were paid and nothing was due towards the petitioner Company, and the Company was provided access to its industrial unit from National Highway No. 10 Delhi-Hisar Road. It is not the case of the respondents that the petitioner Company is liable to pay the External Development Charges on account of ''No Objection Certificate'' or the ''Change of Land Use'' granted to it. The respondents are demanding the External Development Charges on the ground that land of the petitioner Company was released from acquisition. It is true that vide notification dated 20.8.2007 (Annexure P-13) issued u/s 4 of the Act, the State of Haryana proposed to acquire 303.69 acres of land situated in the revenue estate of three villages, namely Gaddi Bohar, Khedi Sadh and Khrawar, Tehsil and District Rohtak, for developing Sector 27A-B Part in Rohtak. Subsequently, on 24.12.2007, while issuing declaration u/s 6 of the Act, certain land was left from acquisition. The objections filed by the petitioner Company against acquisition of its land were not properly dealt with in the light of the State Government policy regarding not acquiring the running industrial units. Later on, while realising the illegality regarding acquisition of the running industrial unit of the petitioner Company, which was existing in foreign collaboration and earning huge revenue to the State, the respondents thought it better to release the land of the petitioner Company, except the small portion of the land, which was falling on the proposed 60 meter wide bye-pass and 30 meter wide Green Belt on both sides of the road. The said decision was communicated to the petitioner Company vide letter dated 7.11.2008. In the meanwhile, the Government took decision to drop the entire acquisition, except the land required for developing 60 meter wide bye-pass along with 30 meter wide Green Belt on both sides of the road. Once the Government decided to drop the entire acquisition, then the earlier individual order regarding release of the land of the petitioner Company had become infructuous and meaningless. In our opinion, on the basis of the earlier release order, no External Development Charges could have been recovered from the petitioner Company. In this regard, a reference can be made to the letter written on behalf of the Chief Controller of Finance, HUDA, Panchkula, which has been annexed with the petition as Annexure P-27, wherein it has been stated as under:

It has also been decided that when the land is released in respect of a sector where the acquisition proceedings are dropped, the orders of release land become infructuous. Therefore, no development charges may be charged in such cases without any deduction but it should be made clear to the land owners that they would have no right to access the services of Government/HUDA, if developed in due course.

The averment in the writ petition made with regard to this letter has not been controverted by the respondents in their written statements. Thus, from the aforesaid stand of the respondents, when the acquisition proceedings with regard to the entire land were dropped, there was no question of charging any External Development Charges from the petitioner Company. In certain circumstances, the HUDA may be justified in charging the External Development Charges from a land owner, whose land situated in the midst of the land acquired by the HUDA for the purpose of development, is released and such land owner uses the facilities provided by the HUDA. But it is not the situation in the present case. In this case, the entire acquisition has been dropped. When the State Government has dropped the acquisition, it has no power to charge the External Development Charges from the land owner, whose land was proposed to be acquired.

During the course of arguments, learned counsel for the respondents put more emphasis on the letter dated 7.11.2008, whereby land of the petitioner Company was released from acquisition. The said letter was issued during the pendency of the earlier writ petition (CWP No. 4515 of 2008) filed by the petitioner Company challenging the acquisition of its land. The said letter was issued with a condition that the petitioner Company would withdraw its case and will also pay the External Development Charges proportionate to the released land and execute an agreement with the HUDA, pertaining to the release of its land. But that situation did not arise, because when the said letter was issued, the matter with regard to dropping of the acquisition was pending with the Government. The Gram Panchayats of all the three villages, where the land was proposed to be acquired, passed a resolution requesting the Government to drop the acquisition proceedings. The Deputy Commissioner had made recommendation to the Government to drop the acquisition proceedings. The Administrator, HUDA, accepting the recommendation of the Deputy Commissioner, forwarded the matter to the Director, Urban Estate Haryana, Panchkula. In pursuance of the said recommendation, vide letter dated 7.7.2009 (Annexure P-26), the Government dropped the acquisition proceedings regarding the entire land, except the land, which was falling under the proposed 60 meter wide bye-pass and 30 meter wide Green Belt on both sides of the road. In view of this subsequent order of the Government, the release order became infructuous and merely on the basis of such release order, the External Development Charges cannot be charged from the petitioner Company.

During the course of hearing, learned counsel for the respondents raised an argument that u/s 48 of the Act, the Government can impose any condition, including the charging of External Development Charges from the land owner, while releasing/withdrawing from acquisition any land, possession of which has not been taken. We have considered this submission and do not find any merit in the same. The provision of Section 48 of the Act, which empowers the Government to withdraw from acquisition of any land, of which possession has not been taken, applies only in a situation when the acquisition proceedings, including making of the award, is complete, but possession of the acquired land has not been taken and the land has not absolutely vested in the Government free from all encumbrances. This is not the situation in the present case. In this case, the Government has decided to withdraw from acquisition of the entire land, except the land falling on bye-pass road and the green belt, before passing award by the Collector u/s 11 of the Act. In such situation, in our opinion, the Government cannot charge the External Development Charges from the land owner as the Act does not empower the Government to levy such charges on the land owner, whose land though proposed to be acquired at one point of time but has not been acquired by the State Government. Therefore, the contention raised by learned counsel for the respondents that while withdrawing from the acquisition, where no award has been made, the Government can charge the External Development Charges from such land owner, is without any substance.

Learned counsel for respondent No. 2-HUDA argued that the HUDA has provided Town Level common facilities in the area, which include the facility of external water supply, external sewerage, electrification, street light, horticulture work etc., therefore, the HUDA is entitled to recover the External Development Charges from the petitioner Company. It has been argued that the HUDA has widened the National Highway No. 10 (Delhi-Hisar Road) and also constructed a bye-pass road and green belt on part of the acquired land. By these developments, value of the land of the petitioner Company has appreciated, and the petitioner Company has also derived benefits from such services. Therefore, the HUDA is entitled to charge External Development Charges from the petitioner Company, whose land has been dropped from acquisition. On a specific question being asked to learned counsel for the HUDA as to whether on these facilities being provided by the HUDA, any such External Development Charges are being charged from other land owners/factory owners, whose lands/factories or industries are also abutting the National Highway No. 10 (Delhi-Hisar Road) or the bye-pass road. It has been specifically stated that no such External Development Charges are being charged from such other land owners/factory owners. In our opinion, if the HUDA is developing the urban estate of a particular area in a District or providing better facilities on a particular road, no development expenses can be charged from the land owners, whose lands are situated or abutting such areas/roads. There is no such provision under the Haryana Urban Development Authority Act, 1977 and the Act of 1963 for charging such External Development Charges, merely on the ground that some facilities have been provided by the HUDA on the adjoining land. Only if a license is granted or ''Change of Land Use'' is granted for construction of a residential or commercial building, the External Development Charges can be charged from the person, who is obtaining license or Change of Land Use'' for establishing a residential or commercial building. But merely because the land, which was once proposed to be acquired and subsequently was dropped from acquisition, the State Government or the HUDA cannot charge the External Development Charges from the land owners whose land is abutting the road, which was developed by the HUDA or the State Government.

In the additional short reply filed by the Chief Town Planner, Town and Country Planning Department, Haryana, it has been specifically stated that no relief has been claimed by the petitioner Company and no adverse averment has been made against the Chief Town Planner. However, on certain averments made in the said affidavit, it has been argued that the petitioner Company had established its industrial unit after obtaining ''No Objection Certificate'' and ''Change of Land Use'' from the competent authority under the provisions of the Act of 1963, and while granting permission for ''Change of Land Use'' with regard to a small portion of the land, an agreement was executed by the petitioner Company giving undertaking to pay proportionate development charges, as and when required and 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. It has been argued that the present demand of the External Development Charges can be justified under the said clause of the agreement. This contention of learned counsel for the respondents is also not acceptable. The present demand of the External Development Charges is not related to the grant of ''Change of Land Use'' to the petitioner Company. It is not the case of the respondents that the Director, Town and Country Planning, has assessed the development charges in respect of the External Development Works which are carried out in the area, where the ''Change of Land Use'' was granted. The definite case of the respondents is that the land of the petitioner Company has been released from acquisition, therefore, it is liable to pay the External Development Charges. The demand has been made by the HUDA on account of widening of the road and constructing of bye-pass road along with green belt. The demand is not on account of grant of ''Change of Land Use''. Therefore, this contention is devoid of any merit.

In view of the aforesaid discussion, this writ petition is allowed, and the letter dated 7.10.2009 (Annexure P-28) issued by the Development Officer, HUDA, demanding External Development Charges from the petitioner Company is quashed. At the time of issuance of notice of motion on 11.3.2010, operation of the impugned letter was stayed subject to deposit of 25% of the demand. In pursuance of the said order, the petitioner Company deposited Rs. 26,94,705/- on 29.4.2010. Since the impugned letter has been quashed, therefore, the said amount deposited by the petitioner Company is ordered to be refunded to it within a period of three months from today.