Punjab-Haryana High Court
Empire Real Tech Private Ltd vs State Of Haryana And Ors on 18 April, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:053401-DB
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
Reserved on: 13.03.2024
Pronounced on: 18.04.2024
1. CM-9087-CWP-2020 in/and
RA-CW-184-2020
in CWP-29545-2018
EMPIRE REAL TECH PRIVATE LTD. .....Petitioner
Versus
STATE OF HARYANA AND OTHERS ....Respondents
2. CM-9090-CWP-2020 in/and
RA-CW-185-2020
in CWP-29554-2018
INTERNATIONAL INFRATECH PVT. LTD. .....Petitioner
Versus
STATE OF HARYANA AND OTHERS ....Respondents
3. CM-9091-CWP-2020 in/and
RA-CW-186-2020
in CWP-29548-2018
CHD DEVELOPERS LTD. .....Petitioner
Versus
STATE OF HARYANA AND OTHERS ....Respondents
4. CM-9095-CWP-2020 in/and
RA-CW-187-2020
in CWP-29547-2018
CHD DEVELOPERS LTD. .....Petitioner
Versus
STATE OF HARYANA AND OTHERS ....Respondents
5. CM-9099-CWP-2020 in/and
RA-CW-188-2020
in CWP-29546-2018
CHD DEVELOPERS LTD. .....Petitioner
Versus
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STATE OF HARYANA AND OTHERS ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Saurabh Mago, DAG, Haryana.
Non-applicants/petitioner(s) proceeded against ex-parte
vide order dated 13.03.2024.
****
SURESHWAR THAKUR, J.
CM Nos.-9087-9090-9091-9095-9099-CWP-2020.
1. Considering the valid, and, good reasons, as meted in the
respective application(s), thus explaining the apposite delay of 284 days,
therefore, the application(s) are allowed.
2. Delay of 284 days in filing the review application(s) in the
respective writ petition(s), is condoned.
Main cases.
3. The instant review application(s) in the respective writ
petition(s) are instituted at the instance of the respondent-State. Since
all the review petition(s) emanate from a common decision made on
07.05.2019 by this Court, upon CWP-29545-2018, and, connected
therewith cases. Therefore, all the review application(s) are liable to be
disposed of through a common order.
4. For the sake of brevity, the facts of CWP-29545-2018 are
being taken here for making an adjudication upon the instant lis.
5. The respondents/non applicants (petitioners in the writ
petition(s)) had assessed this Court through filing writ petition(s)
(supra) before this Court whereins they claimed the according to them
of the hereinafter extracted reliefs.
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"Petition under Articles 226/227 of the Constitution of India for the issuance of an
appropriate writ. order or direction in the nature of mandamus directing the
respondents to provide the facility of external development works in Sector 106
(village Daultabad) of the Gurugram-Manesar Urban Complex for the Group
Housing Colony over an area measuring 12.344 acres and the amenities
contemplated under the External Development Works within a time bound manner,
and/or
Further for issuance of such other writ, order or direction in the nature of mandamus
directing the respondents to reassess the charges recovered by the respondents
towards external development works in exercise of the mandate under Rule
11(1)(C) mandating payment of proportionate development charges read with
Section 3(3) of the Haryana Development and Regulation of Urban Areas Act, 1975
warranting determination of proportionate development charges and further as per
the mandate under Rule 11 of Haryana Development and Regulation of Urban
Areas Rules, 1976, which obligates the Director to ascertain whether certain
amenities can be made available in the locality or not and on the basis thereof
modify the undertaking to pay the proportionate development charges and other
infrastructural/basic amenities in light thereof, and/or
Further for issuance of such other writ, order or direction in the nature of mandamus
directing the respondents to adjust the excess external development charge paid
towards liabilities to be discharged by the petitioner alongwith interest as charged
by the respondent with respect to licences applied for by the company and to refund
the excess charges, if any, paid by the petitioner towards the external development
charge;
Further for the issuance of writ in the nature of certiorari declaring the action of the
respondent in continuing to charge external development charges and interest, penal
interest there upon from the petitioner without undertaking any development work
in the concerned area. Further for the issuance of a writ in the nature of mandamus
directing the respondent authorities to refund the amount charged as external
development charges along with interest to the petitioner and further directing the
respondents. to grant sanctions/renewals of zoning, building plans. renewal licenses
and further not to stop any other work for want of EDC notwithstanding the
payment of balance amount of EDC further for the issuance of a writ in the nature
of mandamus directing the respondent authorities to discharge the bank guarantees
of the petitioner,
6. The gravamen of the reliefs (supra) as claimed in the writ
petition(s) became premised on the ground, that despite the hereinafter
extracted payments becoming made by the petitioner(s), thus to the
respondent-State, as expenses towards external developmental charges
yet no developmental works becoming carried at the relevant sites.
Installment Reducing Principal Interest in Total Due date
No. balance in amount in lacs installments
lacs lac
1. 2637.38 263.74 0.00 263.74 28.07.2012
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2. 2373.64 263.74 142.03 405.77 28.12.2012
3. 2109.90 263.74 126.25 389.99 28.06.2013
4. 1846.17 263.74 111.07 374.81 28.12.2013
5. 1582.43 263.74 94.69 358.42 28.06.2014
6. 1318.69 263.74 79.34 343.08 28.12.2014
7. 1054.95 263.74 63.12 326.86 28.06.2015
8. 791.21 263.74 47.60 311.34 28.12.2015
9. 527.48 263.74 31.74 295.47 28.06.2016
10. 263.74 263.74 15.87 279.61 28.12.2016
However, amount of EDC/IDC was not deposited by the petitioner as per schedule.
The details of the payments made by the petitioner on account of EDC are as
under:-
Date of payment Paid amount (in lacs)
07.09.2012 270.00
05.10.2018 664.00
7. Therefore, this Court after making a common order,
relevant paragraphs of the said order become extracted hereinafter, thus
concluded, that the respondents failed to disclose any sufficient
satisfactory reasons for not carrying out the developmental works,
despite theirs receiving the expenses towards execution of the apposite
external developmental works. Furthermore, this Court also concluded
that the respondents have retained the monies tendered by the
petitioner(s) towards external developmental charges, thus for a long
spell of time. Therefore, this Court made direction(s) that the
developmental works be carried out within a period of eight months
from the making of the common order in the writ petition(s) (supra).
8. This Court further directed that the respondents would be
at liberty to make an application before this Court as to whether some
additional sums are required to be paid to the respondent-State by the
petitioner(s) besides directed that the payments made by the
petitioner(s) to the respondents would be subject to verification by the
State after the completion of developmental works and parties were left
at liberty to exchange the accounts with each other.
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"Evidently, the petitioners have been struggling for the
development work since 2017 when the first order in their
matter was passed by this Court. The respondents have not
offered any sufficient/satisfactory reasons for not carrying
out the development work and while not denying the facts
have consistently referred to the payments yet to be made
by the petitioners. They have also said somewhat with
stubborn persistence that the matter is under
consideration.
After hearing the learned counsel for the parties, we
are of the opinion that these are issues which ordinarily
ought to have been settled by now, considering that these
are being raised by the petitioners since 2017 and more
than 180 crores has been invested, it is not essential for
the State to wait till the time entire payments have been
made to initiate the development work for those who do
not fructify overnight creating infrastructures takes time
often years. Once the external development charges are
demanded and paid substantially the State has to show
concrete results by carrying out development works which
may correspond to the kind of payments they have
received. It cannot be expected of any person to keep on
investing money without there being any tangible result to
encourage him to invest more in any project.
We also do not feel that these petitions should be
kept alive any further and therefore deem it appropriate to
direct the State to carry out the development works
forthwith and till the time the works are not completed
they are restrained from demanding any further amount
from the petitioners. We make this observation solely for
the reason that amount of Rs.180 crores have remained
locked with the respondents since 2013/14 and 5 years is
an extra ordinary long time for retention of the amount
without corresponding results.
Let the development works be carried out within a
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period of eight months from today.
Writ petitions are disposed of.
Once these directions are carried out, we give
liberty to the respondents to make an application to this
Court, if the petitioners are required to pay more amount
but only after they have carried out sufficient development
in the area. At this stage, the petitioners state that they
have paid in excess of the required amount. Be that as it
may, the payment made by the petitioners would be subject
to verification by the State after the completion of
development works and parties are at liberty to exchange
the accounts with each other.
All pending applications are also disposed of.
9. Before proceeding to declare the review petition(s) to be
maintainable, it is necessary to cull out the principles relating to the
valid exercising of review jurisdiction by this Court.
10. The principles relating to the valid exercising of review
jurisdiction by this Court are encapsulated in a judgment made by the
Hon'ble Apex Court in case titled as 'Kamlesh Verma Vs. Mayawati
and Others' reported in 2013 (4) R.C.R. (Civil) 75. The said principles
are extracted hereinafter.
16) Thus, in view of the above, the following grounds
of review are maintainable as stipulated by the statute:
(A) When the review will be maintainable:
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
knowledge of the petitioner or could not be produced by
him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been
interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112
and approved by this Court in Moran Mar Basselios
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Catholicos vs. Most Rev. Mar Poulose Athanasius & Ors.,
(1955) 1 SCR 520, to mean "a reason sufficient on
grounds at least analogous to those specified in the
rule". The same principles have been reiterated in Union
of India vs. Sandur Manganese & Iron Ores Ltd. & Ors.,
2013 (3) Recent Apex Judgments (R.A.J.) 436: JT 2013
(8) SC 275.
(B) When the review will not be maintainable:
(i) A repetition of old and overruled argument is not
enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the
original hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its
soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby
an erroneous decision is re-heard and corrected but lies
only for patent error.
(vi) The mere possibility of two views on the subject
cannot be a ground for review.
(vii) The error apparent on the face of the record should
not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully
within the domain of the appellate court, it cannot be
permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief
sought at the time of arguing the main matter had been
negatived."
11. The learned Additional Advocate General, Haryana
submits that the common judgment(s) strived to be reviewed, ex facie
suffer from material defect thereins, are ridden with an error or
mistakes apparent on the face of record, as such, he contends that the
instant review petition(s) are maintainable before this Court.
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12. The learned Additional Advocate General has alluded to
references made by this Court in the common verdict (supra), thus to a
table, table whereof has been extracted above, with purported echoings
vis-à-vis the petitioner(s) makings payments to the respondent-State
towards external developmental charges, whereas, it is contended that
the said table as a matter of fact rather articulated the schedule of
payments towards external developmental charges which were in fact to
be paid by the respective petitioner(s).
13. The learned Additional Advocate General, Haryana has
also further contended that this Court while making a reference, to an
order made on 04.04.2019, whereins, it was observed that 99 per cent
of the demanded amount has been paid, thus subsequently reached to a
further untenable conclusion that the external developmental charges
are demanded and paid substantially.
14. The learned Additional Advocate General, Haryana
submits that the above observation(s) are factually incorrect as the
respondent State, had made a specific pleading at page No. 149-151, in
their written statement, that the petitioner had not even deposited the
first installment, as per the schedule rather only a sum of Rs. 260 lacs
was deposited and that too, after 40 days of the due date and no further
installment was paid until 04.10.2018. It was only on 05.10.2018 Rs.
664 lacs was deposited. An amount of Rs. 3864.20 lacs yet was
outstanding as on 07.01.2019.
15. He also contended that in the said pages of the written
statement it was pointedly stated that the petitioner had only deposited
Rs.110.55 crore and had failed to deposit the due amount towards EDC,
besides is in default of Rs. 3864.20 lacs, as such, it is contended that
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the fact/observation as to 99 % of the EDC have been been paid is
factually incorrect.
16. He also contended that the observation(s) made by this
Court that an amount of Rs. 180 crores had remained locked, with
respondents since 2013-14, and as such the prolonged retention of the
said amounts and that too without any external developmental works
being made, thus being inapt rather also is an observation which is not
firmly rooted in the facts as pleaded in the written statement. Therefore,
he contends that the said observation(s) was/were an error apparent on
the face of the record in the verdict (supra), and, as such the review
petition(s) are required to be allowed.
17. In making the above submission, he submits that in para
No. 20/g no. 165 of the written statement, it was specifically pleaded
that as on 31.03.2018 HSVP had incurred an expenditure of
Rs.29133.79 crores, on execution of External Development Works, in
Gurugram against the total receipt of Rs. 15108.30 crores. Therefore,
excess amount of Rs. 14025.49 crores was spent than received under
the Head of EDC.
18. The learned Additional Advocate General, Haryana further
contends that the observation made by this Court, that till the
development works are carried out, the respondent-State is restrained
from raising any amount has been made, thus without referring to
Section 3(3)(a)(ii) of 1975 Act, to Rule 11 of 1976 Rules besides to the
terms of LC-IV Agreement executed by petitioner. Further the
observations are contrary to the law settled in case titled as VPN
Buildtech Pvt. Ltd v. State of Haryana and others bearing No. CWP No.
9558 of 2016 holding as follows:
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"17. The error in this submission is on account of ignoring the words
"are to be laid in Rule 11(1)(c) and reading in their place the words
"are laid". Rule 11(1)(c) provides that the applicant shall undertake
to pay the proportionate development charges if the works mentioned
therein are to be laid out and constructed by the Government or any
other local authority These works are the main lines of roads,
drainage, sewerage, water supply and electricity. The undertaking to
be furnished by the applicant is to pay the proportionate development
charges if the works mentioned therein "are to be laid out and
constructed by the Government or any other local authority". The
words "are to be" indicate the execution of the external development
works in future. They indicate not the actual carrying out of the
works but the responsibility and obligation to do so. In other words,
the undertaking to pay the proportionate development charges is in
relation to the cases where the said works "are to be" laid out and
constructed by the Government or any other local authority and not
upon the same being laid out and constructed by the Government
or any other local authority. The undertaking therefore, is not to pay
the proportionate development charges only if these works are
actually carried out, but even if they are to be laid out and
constructed by the Government.
18. Admittedly, in the case before us, these works are to be laid out
and constructed by the Government. The undertaking, therefore,
applies irrespective of whether the works are carried out or not
when the liability to pay the tentative EDC arises. The undertaking,
admittedly, has not been complied with. Indeed, the petitioners, in
effect, seek to be relieved of this undertaking. The non- completion
of the other external development works, in any event, does not
absolve the petitioners of their liability to pay the EDC..."
19. The learned Additional Advocate General, Haryana has
also pointed out that an earlier writ petition bearing No. CWP-15096-
2017 also became filed but the averments made in the said writ petition
were contested by HUDA, through its making thereto a reply, on
affidavit. The relevant para no. 5 of the said reply is extracted
hereinafter.
"....5. That execution of External Development Works is a
continuous process as town level infrastructure is created
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as per requirement and not for any individual licensee.
However, as far as external development works carried
out by HUDA in the vicinity of the licensee area pertaining
to the petitioner is concerned, the factual position is as
under:-
a. Haryana Govt. has also granted licensee to the
Petitioner for development of residential plotted/group
housing colony in Sector 71, 106 and 109 at Gurugram.
Status of external development works carried out by
HUDA in the vicinity of these Sectors is as under:-
(i) Sector 71: Southern Peripheral Road, abutting Sector
71 has already been constructed and gives approach to the
licensee area of the petitioner. Land for construction of
master road (Sector dividing road) between 71/72 has
been acquired. The estimate for construction of road has
been processed for Rs. 14.72 Crore for arranging
administrative approval from the competent authority. The
land under sector dividing road between sector 71/73 is
under acquisition. Water supply line, sewer line and storm
water drain on Southern Peripheral Road abutting this
Sector has already been laid.
(ii) Sector 106 and 109: Northern Peripheral Road in the
vicinity of the licensee area/these sectors has already been
constructed. Also the master roads dividing sector 106 &
109, 106 and 108, 108 and 109 have been constructed and
in motorable condition. Also master road dividing Sector
106 and 103 stands constructed except in a small stretch
of 250 m. which is help up due to non acquisition of land.
Master water supply lines, sewer lines and storm water
drains along Northern Peripheral Road in the vicinity of
these Sectors/licenced area have already been laid. The
work of laying of master water supply lines, master sewer
lines and master storm water drains on dividing road of
Sector 106 & 109, 106 & 108, 108 & 109 is in progress.
The work of sewerage lines is likely to be completed by
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31.3.2018 while that of water supply lines and storm water
lines is likely to be completed by 31.3.2019.
Moreover, HUDA has already provided town
level facilities like Water Treatment Plants, Sewage
Treatment Plants, Gurgaon Water supply Chanel, NCR
Channel, master water supply lines, master sewerage
lines, master storm water lines, Town Park, Gymkhana
Clubs, Stadium, colleges, fire station, library, hospital etc.
and residents of Urban Estate, Gurugram are already
availing the same.
(b) Haryana Govt. has granted licences to the petitioner
for development of resident plotted/group housing colony
in Sector 45, Karnal. This licenced area is isolated from
the land acquired for other HUDA Sectors. However, an
approach road to facilitate this licenced area has already
been planned. Land has been acquired and HUDA has
recently started the work of construction of 45m/30m wide
roads in the vicinity of this licenced area. The work is
likely to be completed by 30.6.2018. Moreover, HUDA has
already provided town level facilities like Gymkhana Club,
City Park, Atal Park, Children's Traffic Park and these are
open for usage to the residents of Urban Estate Karnal."
20. Furthermore, the learned Additional Advocate General
Haryana also submits that additional affidavit also became instituted,
on 09.05.2018, in the said writ petition, thus by the Additional Chief
Engineer, with a stark contention therein, that the external
developmental works already stand completed in Gurugram Urban
Estate and Karnal. After having submitted the detailed replies, the
petitioner(s) in CWP-15096-2017 filed a miscellaneous application
requesting to allow them to withdraw the writ petition with liberty to
file the same with better particulars, thus leading to the withdrawal of
the said writ petition.
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21. Resultantly the Additional Advocate General Haryana
submits that the observation(s) as made by this Court, that there was no
progress in the execution of external developmental works at the
instance of the executing agency, yet the respondent concerned,
retaining the deposited sums of external developmental charges, thus
also is a mis-made or an error apparent on the face of the record.
22. Since, the above projected errors by the learned Additional
Advocate General, Haryana are necessarily ex facie manifesting
themselves, on the face of the record besides when the said errors are
but errors apparent on the face of the records, in the common verdict
(supra), made by this Court. Resultantly this Court is of the firm view
that the verdict (supra) made by this Court has been made in gross
departure of the projections as made in the replies, on affidavit,
furnished to the earlier, and, to the instant writ petition(s), thus by the
respondent-State.
23. Moreover, the common judgment (supra) as made by this
Court is rooted on premises which are completely in conflict with the
un-controverted facts, as projected in the replies, on affidavit, furnished
to the writ petition(s) by the respondent-State.
24. The said replies, on affidavit, when as such remain un-
controverted, thereby they prima facie, acquired an aura of truth.
Resultantly adherence was required to be meted thereto by the learned
Co-ordinate Bench of this Court, which made the common verdict
(supra) on the writ petition(s) (supra). Contrarily, this Court mis-
fashioned its verdict on mis-projections becoming made before this
Court by the petitioner(s).
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25. Be that as it may, despite the replies, on affidavit,
becoming furnished by the respondent-State in writ petition No. CWP-
29545-2018 with clear and candid projections therein, that substantial
portions of the external developmental works rather have been
completed, at the sites concerned, besides when alike projections are
made in the additional affidavit, appended with writ petition No. CWP-
15096-2017, as such, prima facie, there was no occasion for this Court
to conclude that there was no substantial progress in the execution of
the external developmental works nor prima facie, this Court was
required to be making any observation that despite the petitioner(s)
purportedly paying the external developmental charges, yet the said
amounts remaining un-spent by the executing agency, thus for its
executing the external developmental works.
FINAL ORDER OF THIS COURT.
26. In aftermath, this Court finds merit in the review petition(s)
(supra) and, with the above observation(s), the same are allowed. The
common verdict made by this Court on 07.05.2019 upon the writ
petition(s) (supra) is recalled. The writ petition(s) (supra) are restored
to their respective original numbers and the same be listed for hearing,
as per roster.
27. Since the main review application(s) itself have been
decided, thus, all the pending application(s), if any, also stand(s)
disposed of.
28. The observation(s) made are only for disposal/allowing of
the review application(s) but shall not affect the merits of the decision
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to be arrived on the restored writ petition(s).
(SURESHWAR THAKUR)
JUDGE
(LALIT BATRA)
18.04.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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