Rameshwar & Others Vs. State of Haryana & Others
[Civil Appeal No.8788 of 2015]
[Civil Appeal No.8794 of 2015]
[Civil Appeal No.8791 of 2015]
[Civil Appeal No.8782 of 2015]
Uday Umesh Lalit, J.
1. These appeals by special leave are directed against the common Judgment and Order dated 15.12.2014 passed by the High Court of Punjab and Haryana at Chandigarh dismissing Civil Writ Petition No.23769 of 2011 with other connected matters. Appeal arising from Civil Writ Petition No.23769 of 2011 namely Civil Appeal No.8788 of 2015, has been taken as the lead matter and the facts stated therein are dealt with in detail.
2. The aforesaid Civil Writ Petition No.23769 of 2011 was filed by 117 landholders for the following principal relief:
"a) Issue writ direction or order, especially in the nature of certiorari quashing the entire action of the respondents who invoked Sections 4 & 6 for the alleged public purpose but ultimately compelled the petitioners to be divested of their valuable and fertile land at throwaway prices under the threat of acquisition to the private persons and consequently after issuing Section 6 and at the stage of final proceedings under Section 9, the acquisition was withdrawn with fraudulent intentions after the land was purchased by the private builders in active connivance with State functionaries and further the entire acquisition proceedings were initiated with mala fide intention, illegally and in violation of the provisions of the Land Acquisition Act. The same is vitiated by fraud and all transactions including the sale deeds etc. are liable to be set aside without invoking the provisions of Part VII of the Act and with a further prayer for an enquiry/investigation through an independent agency in respect of the entire fraud played by the respondents and their officials;...."
3. The relevant facts leading to the filing and disposal of the aforesaid writ petition were:-
(i) On 27.08.2004 Haryana Government, Industries Department issued a Notification under Section 4 of the Land Acquisition Act, 1894 ("Act" for short) for acquiring lands admeasuring about 912 Acres from three villages namely, Manesar, Lakhnoula and Naurangpur, Tehsil and District Gurgaon for setting up Chaudhari Devi Lal Industrial Township, to be planned as an Integrated Complex for residential, recreational and other public purposes. The notification was duly published in newspapers. The landholders including some of the writ petitioners filed their objections under Section 5A of the Act.
(ii) Soon after the initiation of acquisition, various sale deeds were executed by the landholders including some of the writ petitioners in favour of certain builders/private entities. Some such builders/private entities who had recently purchased the lands also preferred objections under Section 5A of the Act.
(iii) On 26.02.2005, a report was prepared by Land Acquisition Collector recommending to the State Government that land admeasuring 224 acres be released from acquisition. Thereafter, appropriate notification under Section 6 of the Act was issued on 25.08.2005 in respect of rest of the land admeasuring 688 acres.
(iv) This acquisition was subject matter of challenge in number of Writ Petitions filed by the landholders and the subsequent purchasers viz. builders/private entities.
(v) Even after issuance of notification under Section 6 of the Act, the builders/private entities continued approaching the landholders.
It was submitted that the landholders were being shown Award Nos.7, 8, 9, 10 and 12, all passed on 09.03.2006 in respect of adjoining villages for the same purpose namely setting up of Chaudhary Devi Lal Industrial Township, where compensation was awarded @ Rs.12.5 lakhs per acre. In all these cases, notifications under Section 4 were issued on 17.09.2004 while declarations under Section 6 were issued on 27.10.2004 and the lands covered under Award Nos. 7, 8, 9, 10 and 12 were
i) 114 Kanals 02 Marlas,
ii) 68 Kanals 15 Marlas,
iii) 43 Biswas,
iv) 65 Kanals 08 Marlas and
v) 3515 Kanals 01 Marlas respectively. It was submitted that the landholders were thus cornered with the prospect of impending acquisition and the idea that the compensation would be awarded @ Rs.12.5 lakhs per acre and were persuaded to enter into transactions with builders/private respondents transferring their holdings @ Rs.20-25 lakhs per acre.
(vi) On 02.08.2007 notices under Section 9 of the Act were issued calling upon the landholders to appear on 26.08.2007 for pronouncement of award. Soon after such notice, the builder/private entities started enhancing the price and bought the lands from the landholders at a price around Rs.80 lakhs per acre.
(vii) On 24.08.2007, the State Government passed an order dropping the acquisition and stating that a fresh notification would be issued in place of the present proceedings. The reasons given in the order dated 24.08.2007 were as under:
"In this connection, it is informed that State Government has notified that certain parcels of land have been released by Government on the recommendation of Minister's Committee separately. Some of these parcels are acquired in the land acquisition proceedings under consideration.
Further, Town and Country Planning Department has also informed that there are several cases wherein builders applied for licence/CLU on the land which also form part of the acquisition proceedings. Furthermore, in a number of cases the courts have stayed dispossession of land. In the circumstances, it is difficult at this stage to make up a view as what could be the shape and size of the land eventually being acquired by Government. It will not be appropriate to go ahead with these proceedings in the present form. State Government has, therefore, ordered that a fresh notification be issued in place of the present proceedings indicating therein as to which are the lands that are available for acquisition without any encumbrances."
(viii) On 20.09.2007 Haryana State Industrial and Infrastructure Development Corporation (for short HSIIDC) submitted a proposal to constitute an Inter Departmental Committee to survey the area and submit its recommendations for initiating fresh acquisition proceedings. On 09.10.2007 pending Writ Petitions filed by the landholders and the subsequent purchasers were disposed of by the High Court as having become infructuous in view of the dropping of the acquisition on 24.08.2007 and subsequent decision to constitute an Inter Departmental Committee.
(ix) On 27.12.2007 licence Nos.283 and 284 were issued by the State Government for setting up a housing society.
(x) On 26.03.2008 the Inter Departmental Committee submitted a report recommending complete withdrawal of acquisition. It was stated in the report that applications for grant of licence along with requisite fees 6 were submitted by various colonizers in respect of an area of about 362 acres.
(xi) Around 22.09.2009, approvals of building plans of group housing societies and schemes of private builders came to be granted.
(xii) Having come to know that the lands under acquisition were now being utilized for private gain by various builders/colonizers, the farmers started agitation against the process adopted by the Governmental machinery.
(xiii) On 29.01.2010 a decision was taken by the State Government in Industries and Commerce Department to close the acquisition proceedings in view of the recommendations of the Inter Departmental Committee dated 26.03.2008 which in turn had been accepted by the HSIIDC.
(xiv) The farmers' agitation against the decision of the State Government favouring the builders was widely reported in newspapers on 01.03.2011. The agitation continued beyond August and September, 2011. On 20.09.2011 a request was made by sending communications to various functionaries for registration of FIR in respect of fraud played by the officials of the Land Acquisition Department as well as the Director, Town Planning in active connivance with the builders.
(xv) On 19.12.2011 the aforesaid Writ Petition No.23769 of 2011 was filed in the High Court of Punjab and Haryana at Chandigarh by 117 landholders. It was submitted that the entire action of initiating the acquisition and thereby compelling writ petitioners/landholders to divest their valuable and fertile land at throwaway prices under the threat of acquisition to certain private builders and then dropping the acquisition just two days before the date fixed for declaration of award was deliberate and was fraught with malice.
(xvi) In the written statement filed by Respondent No.3 - ABW Infrastructure Limited, it was submitted that the answering respondent had obtained requisite licences for its residential as also commercial/group housing project namely ABW Niketan and had raised loans to the tune of Rs.170,00,00,000/-.
(xvii) In their written statements, Respondent Nos.4 and 5 namely Metropolis Realtors Pvt. Ltd. and Flair Realtors Pvt. Ltd. submitted that both these Companies were incorporated on 03.02.2006; that the prices of lands in and around Gurgaon were increasing as Gurgaon city was developing fast and another factor causing rise in prices was that Master Plan for the area - i.e. Gurgaon Development Plan was notified on 05.02.2007.
(xviii) The written statement submitted by Respondent No.6 - Metropolis Infrastructure Pvt. Ltd. stated that said Company was incorporated on 19.04.2006.
Rest of the submissions were on lines similar to that of Respondent Nos.4 and 5.
(xix) On 06.12.2012 written statement was filed by State of Haryana justifying its action of withdrawal of acquisition. It was submitted that the writ petitioners had approached the Court more than 4 1/2 years after the decision of the State Government of dropping the acquisition proceedings. It was denied that there was any nexus between the builders and the State officials or that the exercise of acquisition was in any manner mala fide or fraudulent.
(xx) In their replications filed on 15.01.2013, it was submitted by the writ petitioners that most of the lands were purchased by the builders or their substitute companies after the issuance of the Notification under Section 4 of the Act and yet, the sale deeds executed between the parties made no mention of factum of such notification. Further, the escalation of prices in last 20 days namely after the issuance of the notices under Section 9 showed that the builders were not only aware but were also sure that the acquisition would be dropped by the State Government. The hike in price was 9 essentially to lure the landholders as after dropping of the acquisition there would be no threat to the landholders.
(xxi) On 24.02.2014 the High Court directed the State of Haryana to give details about various acquisitions initiated around the time in question for the same public purpose namely, setting up of Chaudhary Devi Lal Industrial Township. (xxii) Accordingly, on or about 21.03.2014 an additional affidavit was filed on behalf of State of Haryana giving relevant details in a tabular chart. These details appear to be in addition to the lands covered under Awards 7, 8, 9, 10 and 12 of 09.03.2006. The relevant tabular chart was as under:-
Details of Sections 4 and 6 notifications along with the Revenue Estates as mentioned in the written statement dated 06.12.2012
Sl. No.
Events
912 acres, IMT, Manesar
24 acres, IMT, Manesar
163 acres, IMT, Manesar
3718 acres, IMT, Manesar
3510 acres, IMT, Manesar
1.
Date of Sec. 4 Notification
27.08.2004
27.12.2005
25.11.2005
08.12.2006
25.04.2008
2.
Land Area Notified U/S 4
912A-0 K-7M
24A-4K-5M
163A-3K-15M
3718A-6K-9M
3510A-5K-1M
3.
Villages
Lakhnaula, Naurangpur, Manesar
Manesar
Manesar, Khoh, Kasan
Fazilwas, Kukrola, Kharkhri, Bas Lambi, Mokalwas, Seharavan Fakharpur.
Fazilwas, Kukrola, Kharkhri, Bas Lambi, Mokalwas, Seharavan Fakharpur.
4.
Purpose
Setting up of Chaudhary Devi Lal Industrial Model Township, Manesar, to be planned as an integrated complex for residential, recreational and other public utilities.
Setting up of Chaudhary Devi Lal Industrial Model Township, Manesar, to be planned as an integrated complex for residential, recreational and other public utilities.
Setting up of the Industrial Model Township, Manesar, to be planned and developed as an integrated complex for industrial, residential, recreational and other public utilities, etc.
Setting up of Chaudhary Devi Lal Industrial Model Township to be planned as an integrated complex for Industrial, Commercial and other public utilities by the HSIIDC.
Setting up of Chaudhary Devi Lal Industrial Model Township to be planned as an integrated complex for Industrial, Commercial and other public utilities by the HSIIDC.
5.
Date of Sec. 6 Notification
25.08.2005
15.07.2006
24.11.2006
18.01.2008
09.03.2009
22.04.2009
6.
Land Area Notified u/S 6
688A-3K-12M
24A-4K-5M
162A-3K-14M
3510A-5K-1 M
90A-5K-14M
3325A-3K-16M
7.
Date of Award
Award not announced as the acquisition proceedings were allowed to lapse vide government order dated 24.08.2007
26.06.2008
24.02.2007
Section 6 Notification was inadvertently issued after expiry of the period of one year from the date of last publication of Section 4 notification and became a legal nullity. Fresh Section 4 notification for 3510 acres was issued on 25.04.2008.
24.08.2009 Award in respect of 1128 acres was announced on 21.04.2011. Award of the remaining land was not announced in view of the decision of the Cabinet Sub- Committee on infrastructure and explained in paragraph 6 of the reply on merits of the written statement dt. 06.12.2012.
(xxiii)Thus, in addition to lands covered by said Awards dated 09.03.2006, about 1315 acres of land stood acquired whereas 688 acres of 11 land covered by Declaration under Section 6 of the Act in the present case was dropped from acquisition. It is relevant to note that in relation to acquisition referred to in Column No.5 vide award dated 24.02.2007 (annexed at page-307 in the Paper book) compensation was assessed at the rate of Rs.12.5 lakhs per acre; identical to one assessed in Awards dated 09.03.2006.
(xxiv)The aforesaid petition as well as connected matters were dismissed by the High Court vide its judgment under appeal. It was observed that the landholders had taken no action after their writ petitions were dismissed as infructuous by order dated 09.10.2007 and the present action initiated more than 41/2 years after such dropping of acquisition was wholly belated. It was observed:
"It is the case of the petitioners, that they were forced to sell their property under the threat of acquisition to the private respondents and thus the sale deeds so executed by them in their favour, deserved to set-aside. However we are unable to agree with the said contention raised by the Ld. Counsel for the petitioners as at no stage did the petitioners ever raised hue and cry viz. the said acquisition proceedings. Even when the writ petitions were filed by them in the year 2005 impugning the said acquisition proceedings, then also no grievance was raised by them in this regard and in fact during the pendency of these writ petitions, they even sold off their land to the private respondents for consideration and even got sale deeds executed in their favour. Even when the said writ petitions were dismissed as infructuous vide order dated 09.10.2007, then also no such distress or grievance was raised by them before this Court.
Until the filing of the present writ petition, no action much less coercive action was taken by the petitioners against the respondents viz. setting aside of the sale deeds on the ground of fraud which thus apparently shows that not only did they acquiesced to the dropping of the said acquisition proceedings by the State Government but also waived off their right to challenge the same as well as the sale deeds executed by them in favour of the private respondents in view of Article 59 of the Limitation Act and thus now at this stage they have no vested or accrued right to challenge the said sale deeds voluntarily executed by them in favour of the private respondents and that too after a long yawning gap of 10 years in view of Section 31 of the Specific Relief Act, for which the present writ petitions being hit by delay and latches cannot be entertained for initiating such an action."
4. The Landholders being aggrieved by the decision of the High Court dated 15.12.2014 filed petitions for special leave to appeal in this Court. After hearing both sides this Court granted special leave on 06.10.2015 and continued the interim order granted earlier which was to injunct any further construction on the lands in question. This Court also recorded the submission of the Counsel for the State that investigation was entrusted to CBI and directed CBI to place its report before this Court, as and when the investigation was over. An interim report was filed by CBI in March, 2017. On 30.01.2017 Mr. C.A. Sundaram, learned Senior Advocate was appointed Amicus Curiae to assist the Court. The subsequent order dated 21.03.2017 records that the CBI had filed its interim report, a copy of which was directed to be given to the learned Amicus Curiae. The matters were thereafter taken up for hearing.
5. Appearing for the appellants in the lead matter, Mr. Dhruv Mehta, learned Senior Advocate submitted:
(a) The licences granted by the State Government to the private builders for development, in the face of the fact that the lands were notified for acquisition, were nothing but an abuse of power and such exercise was directly in breach of the relevant policy. In his submission, the policy dated 19.12.2006 issued by the State Government provided that the licences could be granted where the applicants/land owners had applied for licences before the issuance of Notification under Section 4 of the Act and the release could be considered on individual merits of each case. He further submitted that as accepted by the State Government, out of 15 licences granted by the State Government, were granted between the date of issuance of Notification under Section 6 and the date when the acquisition was dropped i.e. on 24.08.2007 and other 7 licences were granted after 24.08.2007. Thus all the licences, as a matter of fact, were granted after the issuance of Notification under Section 6 of the Act.
(b) He submitted that the purchases made by the builders in the present case were after the lands were notified under Section 4 of the Act on 27.08.2004. At least sixty sale deeds were executed between the issuance of Notifications under Sections 4 and 6 of the Act while four sale deeds were executed on the date of declaration under Section 6 i.e. on 25.08.2005 and fifty sale deeds were executed after the issuance of Notification under Section 6 and prior to the dropping of acquisition vide decision dated 24.08.2007. The fact that the builders had enhanced the price and sold the lands at a price of Rs.80 lakhs and above per acre after the issuance of notice under Section 9, clearly indicated that they were aware that the land acquisition proceedings would be dropped.
(c) Though the declared intent while initiating acquisition was to sub-serve public interest, the State Government kept on granting licences in respect of lands covered under acquisition in the teeth of its relevant policy. A colourable exercise of power was evident and substantiated by the Report dated 26.03.2008 which indicated that 12 licence applications were pending in respect of area aggregating approx. 362 acres and 15 that was taken to be good reason to withdraw the lands from acquisition finally.
(d) This entire mechanism was deliberately employed so that valuable lands belonging to the landholders could be cornered by a set of builders/private entities and after having seen that the desired result was obtained, the acquisition was dropped and later completely withdrawn.
(e) Since the entire decision making process was nothing but an abuse of and fraud on power, the landholders were justified in seeking annulment of all the transactions. In his submission, though annulment of transactions can normally be in an action between the vendor and vendee, since the transactions were directly as a result of abuse of and fraud on power, a Writ Court could certainly deal with such issues and while granting relief against such fraud on power, incidental and consequential directions could also be passed annulling such transactions. Reliance was placed on the decisions of this Court in Greater Noida Industrial Development Authority v. Devender Kumar and Others1 and in Uddar Gagan v. Sant Singh & Others2. Learned counsel appearing for other appellants in connected matters adopted the submissions of Mr. Dhruv Mehta, learned Senior Advocate.
6. Learned Amicus Curiae initially filed a memo at which stage the interim report of CBI was not filed in Court. After said copy was made available to him pursuant to the Order dated 21.03.2017 he filed three more memos. In his memo dated 28.03.2017 after referring to certain factual aspects as emerging from the interim report of CBI, he submitted :-
"6. From all the above, it appears that lands were purchased by Builders during acquisition proceedings and also after acquisition proceedings were dropped on the basis that fresh acquisition proceedings would be initiated. It further appears that the builders in the meantime were working to have the acquisition proceedings dropped and their applications for building licenses were also being processed and the issuance of such licenses themselves became a reason for dropping all proceedings.
It does not appear anywhere from the record that the sellers of the lands were aware that the acquisition proceedings would be dropped but it has been alleged by them in the writ petition that they were informed of such acquisition proceedings and were therefore, asked to sell their interests. It would appear that rather than running the risk of what the award would amount to and having to contest the matter for the grant of the award, the purchasers transferred their interest to the builders, who on their part, as based on the CBI Report, appear to have used every effort to ensure that the acquisition proceedings were themselves dropped.
7. xxx xxx xxx
8. In these circumstances, should this Hon'ble Court find that the case of the Petitioners/landholders is made out, and that they were in fact fraudulently enticed to sell their lands and there appears to be very suspicious circumstances in which the acquisition proceedings itself was dropped, the following could be considered:-
a. Insofar as the areas where no construction has been made and no third party interests through registered instruments to ultimate purchasers (not other builders) have been created, that the said sales be declared void and the lands restored to the original landholders who be directed to return the monies received by them;
b. Where third party interests have been created, the builders be directed to disgorge their profit/part of their profits on such sales, to be then distributed amongst the original landholders. To arrive at such profit the difference between the purchase price and the sale price less actual cost of construction could be applied. Insofar as plots are concerned, the difference between the buying and selling price could be determined;
c. The aforesaid directions could be passed based on the application of Sections 55(5) of the Transfer of Property Act and in particular, Sections 55(5)(a) and 55(6) of the said Act. Such orders could also be passed based on Sections 17(5) read with Section 17(2) and Sections 19 and 65 of the Contract Act;(Refer:- Coaks versus Boswell reported as (1886) IA 232/Summers versus Griffiths reported as (1865) 35 Beavan 27/Mulla on Transfer of Property, 8th Edition, Page 376-381 and 407-409)
d. Apart from these, such reparation could also be made by application of the rule of Unjust Enrichment, which has been recognized as being applicable to cases in the field of equity, contract or tort (Refer:- Black's Law Dictionary, 9th Edition / Indian Council for Enviro - Legal Action versus Union of India and Others reported as 2011 (8) SCC 161)
e. The Interim Report of the CBI discloses complicity on the part of Government officials in the entire process. In such event, not only would transactions within this entire conspiracy be fraudulent, if they are traced to mala fide exercise of the State's power, they would also be against public policy.
f. In view of the inordinate increase in the price of land it would not be practical to require the State Government to pay the present consideration or be called upon to acquire these lands and as that would be a drain on the public exchequer. It would perhaps be best to restore status ante insofar as practicable i.e., lands on which constructions have not been made or which have not been plotted and transferred to third party individuals (not builders). In the case of constructions at a nascent stage, it can be determined whether bona fide third party interests have been created and in the absence thereof, status ante could be restored. In the remaining cases, payment of compensation could be directed through payment of consideration to the original landholders as per (b) above.
g. The manner in which the amounts could be returned could be in the manner as held by this Hon'ble Court in the case of Uddar Gagan Properties Ltd. v. Sant Singh reported as 2016 (11) SCC 378.
h. So far as the conduct of the acquisition proceedings and culpability of persons, government officials and builders in this regard, the CBI may continue its investigation and decide if any action is warranted, and take such action as is found to be necessary."
7. In his memo dated 05.04.2017 it was submitted :-
"1. Should this Hon'ble Court conclude that there was a fraud in the entire proceedings, it should result in just restitution depending on the Parties involved in the fraud (in pari delicto) and the parties not so involved.
2. Should this Hon'ble Court hold that the land owners were not in pari delicto the reliefs as suggested in Memo No. 2 dated 28.03.2017 may be considered.
3. Should this Hon'ble Court hold that the land owners were also in pari delicto, the following may be considered:- a. There were 4 Parties involved in the entire net of transactions:-
i. The landowners;
ii. The Builders;
iii. The Officers of the State; and
iv. The State itself (as paterfamilias of the public)
4. If builders and officers of the State were involved in the fraud and the land owners were in pari delicto, the actual party deceived would be the State and therefore, the beneficiary of any profits arising out of the fraudulent transactions, ought to go to the State to be utilized for a public purpose."
5. The manner in which this could be achieved could be:-
a. The recommendation of the HPC dated 26.03.2008 to close the acquisition proceedings and the decision/Notification dated 29.01.2010 dropping the acquisition proceedings for the subject properties could be quashed;
b. Upon quashing of the said Notifications/Recommendations, the acquisition proceedings already initiated would resume proprio vigore from the stage where it stood and to that extent would continue to be an acquisition under the Land Acquisition Act, 1894;
c. The period during which the acquisition proceedings stood withdrawn, i.e., 24.08.2007 till the date of this Hon'ble Court's order would be excluded for the purpose of passing of an award and inasmuch as an award was to be declared on 24.08.2007, an award now passed for the said land (in a time bound manner) would be deemed to have been passed on 24.08.2007;
d. The compensation payable under the said award would be based on the market value of the land in the same manner as if the award was passed on 24.08.2007.
e. The said amounts would be deposited and the landholders would be entitled to withdraw the amount representing the difference between what they actually received from the builders and what they were actually awarded.
f. The land would thereupon vest in the State;
g. The transferee builders who are the current owners of the land would have a right to seek allotment of the same from the State, consideration for which would be determined at the present days' market value or market value as on such other 20 date as this Hon'ble Court may deem fit. Credit would be given to the builders for the amounts that they had paid to the original landholders and which is adjusted in (e) above; h. In the event that the builders do not wish to purchase the land at such rate, the land may be auctioned by the State; and
i. Out of the price secured in the auction the amount paid for the acquisition would be deducted. The actual construction costs of any construction made on the lands would also be adjusted and the balance would be retained by the State for use for a public purpose of the area, providing of housing, rehabilitation, etc. by applying the principles of Section 88 of the Indian Trusts Act, 1882."
8. Mr. Vikas Singh, learned Senior Advocate appearing on behalf of respondent No.3 - ABW Infrastructure Limited filed an extensive list of dates and relevant material detailing various transactions under which his client came to purchase the lands in question. The transactions referred to in the list of dates and accompanying documents, put in tabular chart by us are as under:
S. No.
Date
Name of Purchaser
Area purchased
No. of Sale Deeds
Price Paid
Average [Price paid per acre]
1
20.10.04 to 17.11.04
M/s Indo Asian Construction Co. Pvt. Ltd.
14.997 Acres
Eight (8)
3,81,71,875/-
2545301/-
2
2.11.04 to 3.1.05
M/s NCR Properties Pvt. Ltd.
10.409 Acres
Eight (8)
2,60,46,875/-
2502342/-
3
24.11.04 to 17.5.05
M/s Sheel Buildcon Pvt. Ltd.
37.44 Acres
Twenty nine (29)
5,69,95,612/-
15,22,319/-
4
27.12.04 to 21.6.05
M/s Divya Jyoti Enterprises Pvt. Ltd.
7.494 Acres
Eight (8)
1,90,00,002/-
25,35,362/-
5
31.12.04 to 15.3.05
M/s Beeta Promoters Pvt. Ltd.
4.881 Acres
Five (5)
1,21,87,500/-
24,96,927/-
6
4.01.05 to 5.12.05
M/s Mount Valley Estates Pvt. Ltd.
16.675 Acres
Thirteen (13)
9,04,27,500/-
54,22,939/-
7
25.2.05 to 21.10.05
M/s Progressive Buildtech Pvt. Ltd.
25.041 Acres
Fourteen (14)
4,37,15,875/-
17,45,772/-
8
25.2.05 to 25.11.05
M/s Ecotech Buildcon Pvt. Ltd.
25.378 Acres
Sixteen (16)
5,38,69,700/-
21,22,693/-
9
31.5.05 to 8.11.05
M/s Dugman Engineers Pvt. Ltd.
18.875 Acres
Eleven (11)
8,02,52,375/-
42,51,781/-
10
25.8.05 to 14.11.05
M/s Miraz Overseas Pvt. Ltd.
9.181 Acres
Eleven (11)
3,67,25,000/-
40,00,109/-
11
25.8.05 to 6.12.05
M/s Yorks Hotels Pvt. Ltd.
19.697 Acres
Twelve (12)
7,87,87,500/-
39,99,975/-
On 25.08.2005 Declaration under Section 6 for an area of 688 Acres out of 912 acres was notified.
12
16.12.05 to 30.04.07
M/s Jassum Infrastructure Pvt. Ltd.
5.422 Acres
Six (6)
2,36,38,295/-
43,59,700/-
13
16.1.06
M/s Galaxy Colonisers Pvt.
3.656 Acres
Three (3)
1,46,25,000/-
40,00,274/-
14
23.2.07
ABW Infrastructure Ltd.= Respondent No.3
11.4406 25 Acres
Three (3)
9,72,46,500/-
85,00,104/-
15
26.2.07
Respondent No.3
1.475 Acres
One (1)
1,18,00,000/-
80,00,000/-
16
2.3.07
Respondent No.3
0.8895 83333 Acres
One (1)
80,00,000/-
89,92,974/-
17
18.06.07 to 20.08.07
M/s Jassum Towers Pvt. Ltd.
6.46 Acres
Seven (7)
4,88,00,000/-
75,54,180/-
18
20.6.07 to 21.8.07
M/s Jassum Estates Pvt. Ltd.
13.250 Acres
Eight (8)
10,62,50,000/
80,18,868/-
24.08.2007 decision was taken by the State to drop the acquisition proceedings.
19
24.12.07 & 2.8.08
M/s Jassum Towers Pvt. Ltd.
1.3275 Acres
Two (2)
1,59,50,000/-
1,20,15,066/-
20
17.2.11
Respondent No.3
0.76875 Acres
One (1)
1,92,18,750/-
2,50,00,000/-
21
27.2.11
Respondent No.3
0.025 Acres
One (1)
4,48,000/-
1,79,20,000/-
22
18.3.11
Respondent No.3
0.76875 Acres
One (1)
1,92,18,750/-
2,50,00,000/-
Total
235.55121 Acres
90,13,75,109/-
The aforesaid chart discloses that the average price paid was initially in the region of Rs.25 lakhs per acre. Soon after the issuance of Section 6 declaration, the price rose to Rs.40 lakhs or above. But just before 24.08.2007 i.e. the date when the State Government decided to drop the acquisition, the price was in the region of Rs.80 lakhs per acre. The price paid after the decision to drop the proceedings was above Rs.1.2 crores per acre. The documents placed by Mr. Vikas Singh, learned Senior Advocate do indicate the names of vendors as well.
However, for facility we have not included the names of vendors but have given the other details in the chart. The documents further indicate that all these lands purchased by the first purchasers as indicated in the tabular chart were then taken over by the respondent No.3; one of the ways being-where the controlling interest in the first purchaser Companies was transferred to Respondent No.3 and one Mr. Atul Bansal was appointed as Director of said companies.
9. The documents placed on record by Mr. Vikas Singh, learned Senior Advocate, further indicate that soon after the aforementioned purchases, applications for grant of licences were made as under:- A. Aditya Buildwell Pvt. Ltd. and its associate companies namely; Frost Falcon Industries Ltd., Iceberg Industries Ltd., Mount Valley Estate Pvt. Ltd., Yorks Hotel Pvt. Ltd., Miraj Overseas Pvt. Ltd., Galaxy Colonires Pvt. Ltd., Dough Man Engineers Pvt. Ltd., Jassum Infrastructure Pvt. Ltd., Sheel Buildcon Pvt. Ltd., Progressive Buildcon Pvt. Ltd., Eco Tech Buildcon Pvt. Ltd., Indo Asian Construction Co. Ltd., Beeta Promoters Pvt. Ltd., Divya Jyoti Enterprises Pvt. Ltd., NCR Properties Pvt. Ltd., applied for licence to set up a Township alongwith Demand Draft for Rs.85 lakhs towards Scrutiny and Licence fees. The area was stated to be 190 Acres. Paras 5 and 7 to 9 of the application were:-
"5 . Whether applicant is income tax player, if so, the amount of income tax paid during each of the last three years
YES PAN : AAECA - 5466H NIL - in last three years because of construction work in progress
7. Whether the applicant had ever been granted permission to set a colony under any other law, if so, details thereof.
NO
8. Whether the applicant had ever established a colony or is establishing a colony and if so, the details thereof.
NO
9. Any other information the applicants like to furnish.
The Aditya Buildwell Private Limited, the main applicant company, is in process of converting into a Public Limited Company shortly by name 'ABW Infrastructure Limited. The ABW group of companies are already developing number of shopping cum commercials Malls and in process of developing the Township in Mohali, Chandigarh the total projects more than worth Rs.1000.00 crores are in development in progress."
B. ABW Infrastructure Ltd. and its group companies namely; Progressive Buildtech Pvt. Ltd., Sheel Buildcon Pvt. Ltd., Divya Jyoti Enterprises Pvt. Ltd., Beeta Promoters Pvt. Ltd., Ecotech Buildcon Pvt. Ltd. and Jassum Estates Pvt. Ltd., applied for licence to set up a Group Housing Project of 15.35625 acres alongwith Demand Drafts for Rs.20 lakhs towards Scrutiny and Licence fees. Paras 5 and 7 to 9 of the application were:-
"5. Whether applicant is income tax payer, if so, the amount of income tax paid during each of the last three years.
YES PAN : AAECA-5466H Assessment Year: 2007-08 Rs.77,49,859/- NIL- 2005-06, 2006-07 Construction work in progress.
7. Whether the applicant had ever been granted permission to set a colony under any other law, if so, details thereof.
NO
8. Whether the applicant had ever establishes a colony or is establishing a colony and if so, the details thereof.
NO
9. Any other information the applicants like to furnish.
'ABW Infrastructure Limited' The ABW Group of Companies are already developing number of shopping cum commercials Malls and in process of developing the Township in Mohali, Chandigarh the total projects more than worth Rs.1000.00 crores are in development and in progress."
In none of these two cases the applicants themselves had any prior experience and between them, only one had paid Income tax and that too only in one financial year. Both had given same PAN numbers.
10. Since the documents also indicated that after having applied for issuance of licences, respondent No.3 had transferred licence Nos.283 and 284 and sold 33.55 acres of land covered by such licences to DLF Homes Developers Pvt. Ltd., this Court directed respondent No.3 to file statement of profit made by it in respect of such transactions and the following statement was filed by Respondent No.3:
PROFIT MADE BY RESPONDENT NO.3 BY TRANSFERRING LICENSE NO.283 & 284 AND SELLING 33.55 ACRES of LAND TO DLF HOMES DEVELOPERS PVT. LTD.
1
Amount received by Respondent No.3 by transferring License No.283 & 284 and selling 33.55 Acres of land to DLF Homes Developers Pvt. Ltd.
150,95,55,301.00
2
Amount paid by Respondent No.3 for purchasing controlling stake and land in following companies w.r.t. Licence No.283 (13.89 Acres of Land):
6,31,25,830,86
(a) Dugman Engineering Pvt. Ltd.
3,05,53,666.68
(b) Sheel Buildcon Pvt. Ltd.
2,32,33,836.69
(c) Yorks Hotels Pvt. Ltd
93,49,327.50
3
Fees paid to the State Government
2,27,87,845.00
4
(2 + 3)
8,59,13,675.00
5
Amount paid by Respondent No.3 for purchasing controlling stake and land in following companies w.r.t. Licence No.284 (19.643 Acres of land):
11,39.44,106.00
(a) Mount Valley Estates Pvt. Ltd.
2,75,88,326.750
(b) Sheel Buildcon Pvt. Ltd.
53,40,980.826
(c) NCR Properties Pvt. Ltd.
38,24,509.704
(d) Divya Jyoti Enterprises Pvt. Ltd.
2,08,91,978.770
(e) Progressive Buildtech Pvt. Ltd.
2,05,66,820.370
(f) Beeta Promoters Pvt. Ltd.
2,54,521.440
(g) Indo Asian Construction Co. Pvt. Ltd.
2,43,39,673.130
(h) Dugman Engineers Pvt. Ltd.
2,43,742.600
(i) Miraz Overseas Pvt. Ltd.
18,12,337.600
(j) Yorks Hotels Pvt. Ltd.
18,02,280.000
(k) Jassum Infrastructure Pvt. Ltd.
65,78,935.530
6
Fees paid to State Government
3,27,16,317.00
7
(5 + 6)
14,66,60,423.00
8
Amount paid by Respondent No.3 under Settlement cum Cancellation of Agreement to Sell
119,69,50,000.00
9
(4+7+8)
142,95,24,098.00
10
Profit made by Respondent No.3
(1-9)
8,00,31,203.00
The aforesaid statement indicates that various entities who had initially purchased the lands from the landholders, had sold the said lands to 27 Respondent No.3 and were paid sums reflected at Sl. Nos.2 and 5 above amounting to Rs.17.70 crores (approx.) for acquiring such interest in said lands. Thereafter, amount of Rs.5.45 crores (approx.) was paid by way of fees to the Government. However, more than Rs.150 crores was received on transfer to DLF Homes Developers Pvt. Ltd. For an applicant who reportedly paid income tax only once during last three years, this by itself constitutes phenomenal earning. From and out of such earnings an amount of Rs.119.695 crores was paid by Respondent No.3 under Settlement-cum- Cancellation of Agreement of Sell as indicated at Serial No.8.
11. On an inquiry by this Court regarding details of such amounts paid by respondent No.3 as indicated at Serial No.8, those documents were filed on record. The documents make an interesting reading. By way of sample, documents pertaining to transactions between Beeta Promoters P. Ltd. and the intending purchaser Arison Builders P. Ltd. are dealt with in some detail:
(a) By Agreement of Sale dated 09.10.2007 entered into between M/s Beeta Promoters Pvt. Ltd. = Vendor and M/s Arison Builders Pvt. Ltd. = Vendee, certain lands were agreed to be sold @ Rs.58.60 lakhs per acre and cheque for Rs 1 lakh and Rs.1 lakh in cash were paid as advance. The relevant portion of the Agreement dated 09.10.2007 was as under:
"Whereas 'the Seller' is the sole and absolute owner and also in possession of piece of land admeasuring 0.12 Acre land forming part of Rect. No.54 Killa No.6/1 (3-16), 15/2/1 (2- 16), the extent of their 7/48 share i.e. situated at village Manesar, Tehsil & District Gurgaon Haryana;
And whereas 'the Seller' has agreed to sell and 'the Purchasers' have agreed to purchase the piece of land already owned and in the possession of the First Party as already mentioned above at the rate of Rs.58,60,000/- (Rupees fifty eight lakhs and sixty thousand) per acre,
And whereas 'the Seller' has received a sum of Rs.1,00,000/- in cash on 09.10.2007 and Rs.1,00,000/- (Rupees one lakh only) vide Cheque No.579592 dated 25.10.2007 drawn on Punjab National Bank, towards earnest money, the receipt of which is hereby acknowledged and confirmed by 'the Seller' and the balance agreed consideration amount, shall be payable by 'the Purchaser' to 'the Seller' as per the following schedule:-
(1)
On or before 30.12.2007 Rs. 2,00,000/- (Rs.Two lakhs Only)
(2)
On or before30.05.2008 Rs.3,03,200/- (Rs.Three lakhs three thousand and two hundred only)
Balance amount only i.e. the full and final consideration.
NOW THIS AGREEMENT of SALE WITNESSETH AS UNDER:-
1. That the settled price of Rs.7,03,200/- (Rupees seven lakhs three thousand two hundred only) for sale of 0.12 acres of land in Village Manesar District Gurgaon Haryana by First Party to Second Party, as mentioned in the preamble shall neither be reduced nor enhanced by either party.
2. That 'the Seller' shall be bound to execute the sale deed/proper documents for the transfer of the land and get the same registered in the name of the second party or their nominees on receiving of the balance consideration as per schedule of payment given above.
3. That all the expenses of the execution and registration of the documents shall be payable and borne by 'the purchasers'.
4. That the actual physical and vacant possession of the above said land shall be delivered by 'the Seller' to 'the Purchasers' at the time of registration of the land after receiving the full and final payment."
(b) By Settlement Agreement-cum-Cancellation of Agreement to Sell executed on 30.08.2008 between the aforesaid parties, the earlier arrangement entered vide Agreement of Sale dated 09.10.2007 was cancelled. While cancelling that arrangement, settlement amount of Rs.3.50 crores per acre was paid to the vendee as full and final settlement between the parties and discharge of all claims. The document narrates that though the cheque for Rs.1 lakh was given on the date when the agreement to sell was executed on 09.10.2017, said cheque was never encashed and was returned to the vendee.
Thus, the land which was agreed to be sold @ Rs.58 lakhs per acre was not sold at all but by way of settlement Rs.3.5 crores per acre was made over to the vendee. Interestingly, nothing was received by the vendor by way of advance/earnest through Bank channels as the cheque was admittedly never encashed. The relevant portions from the Settlement-cum-Cancellation of Agreement to Sell dated 30.08.2008 were as under:
"And whereas 'the parties' has entered into agreement to sell dated 9th October, 2007, as per the terms of agreements described therein.
And whereas 'the Seller' has agreed to sell and 'the Purchasers' have agreed to purchase the piece of land already owned and in the possession of the First Party as already mentioned above at the rate of Rs.58,60,000/- (Rupees fifty eight lakhs sixty thousand only) per acre.
And where 'the Seller' has received a sum of Rs.1,00,000/- (Rupees one lakh only) vide Cheque No.579592 drawn on Punjab National Bank and Rs.1,00,000/- (Rupees one lakh only) in cash towards earnest money and the balance agreed consideration amount, was payable by 'the Purchasers' to 'the Seller' as per the following schedule:-
(1)
On or before 30.12.2007 Rs. 2,00,000/-(Rs.Two lakhs Only)
(2)
On or before 30.05.2008 Rs. 3,03,200/- (Rs.Three lakhs three thousand and two hundred only)
Balance amount only i.e. the full and final consideration.
And whereas the seller offered to buy back the said land and has not encashed the Cheque No.579592 drawn on Punjab National Bank, received towards earnest money, and also offered to return the same to the purchaser and also agreed to settle the transaction amicably.
NOW THIS AGREEMENT WITNESSETH AS UNDER:-
1. That this agreement shall be effective from the date of signing and shall constitute full and final settlement between the parties of all the respective past and future rights and obligation of parties under agreement to sell dated 9th October, 2007 for sale of 0.12 acres forming part of Rect. No.54 Killa No. 6/1 (3-16), 15/2/1 (2.16), the extent of their 7/48 share i.e. situated at village Manesar, Tehsil & District Gurgaon, Haryana.
2. That 'the Seller' shall pay the settlement amount of Rs.3,50,00,000/- per acre to the purchaser towards full and final settlement between the parties and discharge of all claims against the land as acquired by the second party through agreement to sell dated 9th October, 2007 for sale of 0.12 Acres of land in Village Manesar, District Gurgaon, Haryana.
3. That the said total settlement amount Rs.42,00,000/- (Forty two lakhs only) shall be paid on or before 31.03.2009 as per the schedule enclosed.
4. That on receipt of full and final settlement amount, the second party hereby completely and expressly waives, releases, relinquish and forever discharges all claims against the land as acquired by the second party through agreement to sell dated 9th October, 2007 for sale of 0.12 acres of land in Village Manesar, District Gurgaon, Haryana." Identical agreements for sale followed by Settlement Agreementscum- Cancellation of Agreements to sell were entered into by all the concerned, as set out hereafter.
12. The details of the relevant agreements to sale and Settlement-cum- Cancellation agreements to sell as filed by respondent No.3 are put in a tabular chart by us. Except in the case at Serial No.1 where part of earnest money was deposited in cash, in all other cases, earnest was paid by cheques. However, in none of the cases any cheque which was issued as advance-cum-earnest money was encashed. The relevant recitals in these agreements are identical to those extracted hereinabove. The compensation paid to the vendee in every case is on or about 30.08.2008 and at a consistent rate of Rs.3.50 crores per acre.
The said chart is as under:
S. No.
Vendor
Purchaser
Area of land (Acres)
Date of Agreement of Sale deed with transaction amount
Adv. Amt. recd. By cheque (Rs.)
Date of Settlement Agreement
Compensation Amt. (Rs.)
1
Beeta Promoters P.Ltd.
Arison Builders P. Ltd.
0.12
09.10.2007
Rs.7,03,200
2,00,000
30.8.2008
42,00,000
2.
Divyajyoti Enterprises P. Ltd.
Arison Builders P. Ltd.
2.47
03.10.2007
Rs.1,44,74,200
50,00,000
30.8.2008
8,64,50,000
3.
Dugman Engineers P. Ltd.
Kripa Finvest Pvt. Ltd.
2.6
14.10.2007
Rs.1,51,58,000
50,00,000
30.8.2008
9,10,00,000
Gee Ispat Ltd.
3.28
17.10.2007
Rs,1,91,55,200
6500000
30.8.2008
11,48,00,000
Hansh Metals Ltd.
0.80
20.10.2007
Rs.46,72,000
1000000
30.8.2008
2,80,00,000
4
Indo Asian Construction Pvt. Ltd.
Hari Om Ispat and Alloyes Pvt. Ltd.
0.8
08.10.2007
Rs.46,80,000
8,00,000
30.8.2008
2,99,60,000
Ishom Photo Colour Photo Lab Pvt. Ltd.
2.43
25.10.2007
Rs.1,42,15,500
50,00,000
30.8.2008
9,10,03,500
Matara Traders & Finance Pvt. Ltd.
1.5
18.10.2007
Rs.87,75,000
30,00,000
30.8.2008
5,61,56,500
Pashupati Casting Ltd.
0.9
23.10.2007
Rs.52,65,000
10,00,000
27.08.2008
3,37,05,000
5
Jassum Infrastructure Pvt. Ltd.
Shree Bihari Forgings P. Ltd.
1.3
10.10.2007
Rs.76,05,000
24,00,000
30.08.2008
4,53,00,000
Dasna Steel Pvt. Ltd.
.21
10.10.2007 Rs.12,28,500
200000
30.8.2008
75,50,000
6
Miraza Overseas Pvt. Ltd.
Arison Builders Pvt. Ltd.
0.4
10.10.2007
Rs.23,44,000
5,00,000
30.08.2008
1,40,00,000
7
Mountvally Estates P. Ltd.
Ramdoot Steels P.Ltd.
1
19.10.2007
Rs.58,45,000
10,00,000
30.08.2008
3,60,00,000
Maya Industries
1.13
22.10.2007
Rs.23,20,000
20,00,000
30.08.2008
3,95,50,000
Baba Alloys P. Ltd.
0.4
19.10.2007
Rs.66,04,850
8,00,000
30.08.2008
1,30,00,000
8
NCR Properties Pvt. Ltd.
Ritansh Developers and Financing Pvt. Ltd.
1.43
28.10.2007
Rs.83,79,800
25,00,000
30.8.2008
5,00,50,000
9
Progressive Buildtech P.Ltd.
Arison Builders Pvt. Ltd
2.25
06.10.2007
Rs.1,31,85,000
42,00,000
30.08.2008
7,87,50,000
Shree Bihari Forging P. Ltd.
1.48
Rs.86,72,800
25,00,000
30.8.2008
5,18,00,000
10
Sheel Buildcon P. Ltd.
Arison Builders P. Ltd.
1
06.10.2007
Rs.58,60,0
