H.S.BHALLA, J. - (1.) INVOKING extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, petitioners have knocked the door of this Court by filing the present writ petition for issuance of a writ in the nature of certiorari quashing the memo/letter dated 20.5.2005 (Annexure P-5) requiring them to deposit additional Licence renewal fee at the rate of 10% of Rs. 1 crore per gross acre in respect of commercial licence for land measuring 2.042 acres along with interest at the rate of 18% per annum from October 15, 2004 till the date of payment over and above the renewal fee, which the petitioners were liable to pay at the rate of 10% of the prescribed fee. The petitioners have further prayed for issuance of a writ for quashment of notification dated May 23, 2005 (Annexure P-9) as also the notification dated September 13, 2005 (Annexure P-14) being illegal and ultra vires the Constitution of India and the Haryana Development and Regulation of Urban Areas Act, 1975. The petitioners have further prayed for issuance of a writ in the nature of mandamus directing the respondents to grant the renewal of licence (s) to the petitioners by charging licence renewal fee at the rate prescribed at the time of submission of the application for grant of licence.
(2.) THE other facts required to be noticed for the disposal of the petition are that Petitioner No. 1 is a Public Limited Company, whereas petitioner No. 2 is a Private Limited Company. Both the petitioners are engaged in the business of planned urbanisation/colonisation by developing land into residential colonies etc. in association with M/s DLF Limited being the holding company. The said development is governed by the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as "the Act") and the rules framed thereunder, i.e., Haryana Development and Regulation of Urban Areas Rules, 1976 and for this purpose, the petitioners submitted applications to the Director, Town and Country Planning, Haryana for the grant of licence under the 1975 Act for developing their land. The petitioner and associate companies were granted separate commercial licences. All the licenses were issued in the prescribed form and covered an area of 2.042 acres for setting up a commercial colony at village Wazirabad, district Gurgaon. These licences were being renewed from time to time as per the provisions of the 1975 Act and the 1976 Rules by moving appropriate applications along with licence renewal fee as 'prescribed' in the Schedule to the 1976 Rules. Since the said licences were to expire on 14.11.2004, the petitioners applied for renewal of the said licences in form LC-VI and the same was duly received by respondent No. 3 on 7.10.2004. Along with the said application, a consolidated demand draft No. 238467 dated October 6, 2004 for Rs. 10.21 lac as licence renewal fee was also given, but instead of granting renewal of the said licence to the petitioners, respondent No. 4 issued memo vide which the petitioners were required to pay licence renewal fee at the rate 10% of Rs. 1.0 crore per acre, which came to Rs. 20.42 lac and as such, the petitioners were required to pay an additional Rs. 10.21 lac along with interest at the rate of 18% per annum from October 15, 2004 upto the date of payment on the said additional licence renewal fee. In response thereto, petitioners wrote to respondent No. 4 stating therein that there is no justification for demanding the enhanced/additional licence renewal fee at the rate of 10% of the alleged enhanced rate of Rs. 1.0 crore per gross acre. It was further stated in the reply that there is no notification with respect to the increase of the licence fee for commercial licence from Rs. 50 lac to Rs. 1.0 crore per acre and in absence of the same, the petitioners could not be called upon to pay licence renewal fee at the alleged enhanced rate. However, with a view that the approval/sanction of building plans of the site submitted to the office of respondent No. 4 were not held up, the petitioners made the payment of the additional licence fee of Rs. 10.21 lac along with interest of Rs. 1.17 lac totalling Rs. 11.38 Las by way of a bank draft under protest and without prejudice to their rights and contentions. Since the action of the respondents was in contravention of the provisions of the 1975 Act and the 1976 Rules and also the judgment rendered by the Division Bench of this Court in Civil Writ Petition No. 15 of 2005 Mahavir Singh v. The State of Haryana and others, the petitioners filed Civil Writ Petition No. 12165 of 2005 inter alia challenging the demand made vide Annexure P-5 as also the notification dated May 23, 2005 whereby the schedule of rates of licence fee given in schedule to Rule 3 of the 1976 Rules were allegedly amended. A draft gazette notification dated February 16, 2005 was issued by the Town and Country Planning Department, Haryana proposing to amend the schedule of rates of licence fee given in the Schedule to Rule 3 of the 1976 and inviting suggestions, if any, before the expiry of the period of 30 days from the date of issue of the above mentioned draft notification. The petitioners submitted objections to the abovesaid proposed amendment regarding increase in the rates of licence fee through PHD Chambers of Commerce and Industry to respondent No. 2. Respondent No. 1 issued notification dated 23.5.2005 bringing in the amendment. The schedule was again substituted by a fresh schedule. The rates of licence fee for areas in Gurgaon, Faridabad and Panchkula were increased and another category of urban area, namely, Gurgaon-Mehrauli Schedule Road was introduced. It was stated that the amendment would come into force with effect from November 25, 2004. The petitioners even challenged the same being the only notification purported to have been issued exercising powers under section 24 after the notification dated September 1, 2003. This Court was pleased to issue notice of motion and a direction was passed that the application of the petitioner for renewal of licence be entertained as interim measure on payment of last paid renewal fee, without prejudice to the rights of the petitioners subject to further orders. Subsequently, written statement on behalf of the respondents was filed wherein the demand made vide Annexure P-5 had been sought to be justified by placing reliance inter alia on the Haryana Ordinance Act No. 4 of 2005; Haryana Development and Regulation of Urban Areas (Amendment and Validation) Ordinance 2005, which had been promulgated on July 15, 2005 under clause 2 of Article 213 of the Constitution of India and the same had been claimed to have been published in Haryana Government gazette (Extra-ordinary) on July 15, 2005. The respondents had further pleaded in the said written statement that subsequently notification dated September 13, 2005 had been issued and the licence fee was to be charged as per the said notification dated September 13, 2005. The petitioners then approached the Court by way of filing a Civil Writ Petition No. 247 of 2006, challenging the Ordinance as also the notification dated September 13, 2005. However, since the Ordinance was placed before the Legislative Assembly in the form of Haryana Development and Regulation of Urban Areas (Amendment & Validation) Bill, 2005 and the said bill had received the assent of the Governor of Haryana on January 12, 2006, which ultimately culminated into Haryana Development and Regulation of Urban Areas (Amendment and Validation)Act, 2005, the petitioners withdrew the said writ petition with the liberty to challenge the Amending Act and to file the writ on the same cause of action. In view of this, petitioners had prayed for withdrawal of Civil Writ Petition No. 12165 of 2005 and sought permission to file a fresh petition on the same cause of action by making additional challenge to the Amending Act of 2005. The aforesaid liberty was granted and the interim order dated October 7, 2005 was ordered to be continued to operate in favor of the petitioners for a period of three weeks from that day. It is categorically pleaded that from scheme/provisions of the 1975 Act and the 1976 Rules, it is clear that while applying for the renewal of licence, the applicant-licensee has to pay licence renewal fee, as per rule 13, at the rate 10% of the fee prescribed under rule 3 for the issuance of the licence. It is further pointed out that the licence renewal fee prescribed in rule 13 of the 1975 Rules, which is 10% of the licence fee prescribed in rule 3 at the time of issuance of licence or without prejudice, prescribed in the Scheduled appended to the 1976 Rules on the date of application for renewal, can only be claimed from the petitioners and any demand beyond that is arbitrary and mala fide and since action of the authorities in charging the licence fee other than what is prescribed under the rules was set aside by this Court in Mahavir Singh's case (supra), the authorities in order to frustrate the effect of the judgment rendered and to illegally validate their actions which otherwise were declared as invalid, has come out with the Amendment and Validation Act. Subsequent to the promulgation of the Ordinance, a draft notification dated July 26, 2005 was issued by the respondents. Vide the said draft notification, the Government has arbitrarily taken a decision to classify the towns/urban areas into Hyper Potential zone, High Potential Zone, Medium Potential Zone and Low Potential Zone and further enhanced the rates of licence fee exorbitantly without any reasonable nexus with the object sought to be achieved and further without any basis and rationale. The alleged increase made vide abovesaid notification has neither any basis nor is there any rationale in a short span of two years as compared to the earlier notification dated September 1, 2003. On the other hand, the petition was contested by the respondents and through written statement filed by respondent Nos. 1 to 4, most of the assertions contained in the petition were denied. However, it was pointed out that during the period 2003 and 2004 frequent changes had taken place in the commercial licencing policy, i.e., increasing the permissible area for a independent commercial colony within a sector from 2% to 3.5%, de-restricting the Gurgaon-Mehrauli road to enable its development as a prime commercial street in the region and flexibility in the FAR giving an option of 150 and 175 requiring commensurate charges in the licence fee structure of the commercial colonies. Accordingly, the fee was revised by the Government on 10.4.2003, 22.11.2003 and 19.5.2004 and 25.11.2004. It is further pointed out that the colonizer had benefited from the changes in the policy parameters for grant of licence of commercial colonies; may be in the form of increase in the permissible area from 2% to 3.5% or de-restriction on Gurgaon-Mehrauli road and flexibility/increase in the FAR with option 150 and 175. The petitioner has also benefited from these changes in the policy parameters as they have availed the increased FAR (175) by paying the enhanced fee as per decision dated 29.8.2002 and notified on 1.9.2003 and also they have been granted a licence No. 173 of 2004 (adjoining to the licence under question making total area of the colony as 3,272 acres) again paying the revised licence fee as per decision dated 19.5.2004 but published on 23.5.2005. These very notifications are now being challenged after enjoying the benefit. It has been further pleaded that the Government has been empowered under section 24 of the Act, 1975 to prescribe the licence fee. The policy to levy fee and charges by the Government is guided by factors like encouraging the development in a particular sector of economy or a particular area that is why the fee structure is prescribed in a differential manner dividing the State in Hyper, High, Medium and Low Potential zone. There is a policy to encourage investment in low potential zone by keeping the fee structure at the lowest possible rates, whereas in places like Gurgaon, Faridabad, Panchkula which are experiencing very high growth rate in the real estate development and consequently require investment into higher order infrastructure the schedule for the licence fee is higher than the medium than the medium and low potential area.
(3.) THE petitioners were granted licence No. 135 to 144 of 1998 dated 15.11.1998 for an area of 2.042 acres for setting up a commercial colony. The applicant did not complete the development work/construction of the colony within the valid period, i.e., upto 14.11.2000; hence his licences are being renewed by the answering respondent No. 4 on his request and on payment of the fee prescribed under rule 13. The prescribed licence fee for the commercial colonies was Rs. 25 lacs per gross acre and was revised to Rs. 50 lacs per gross acre for the colonizers opting for increased Floor Area Ratio (for short "FAR), i.e., 175 against the 150 earlier allowed. The schedule was notified vide notification dated 1.9.2003 and this was effective from 29.8.2002. The petitioners without raising any procedural issues requested for the increased FAR by paying the increased licence fee at the rate of Rs. 50 lacs per acre and accordingly the zoning plan regulating the development on the site was approved on 12.11.2003. The colonizer has not come to this Court with clean hands as he has claimed that the licence fee paid by him is at the rate of Rs. 25 lacs per gross acre whereas actually the terms and conditions of licence were altered on 12.11.2003 and he had paid the licence fee of Rs. 50 lacs per acre by getting increased FAR. The licence renewal fee for the corresponding period was 10% of Rs. 50 lacs per acre and not Rs. 25 lacs per acre. Subsequent renewal of licences is subject to payment of the licence renewal fee as prescribed for the corresponding period. Repeated attempts by the petitioners through Civil Writ Petition No. 12165 of 2005 and the present writ petition shows the mischievous intent on part of the petitioners to cause loss to the public exchequer by not paying the licence renewal fee due to the answering respondent No. 4 despite the knowledge that the fee being demanded for renewal of licence is prescribed in the statute and by taking other preliminary objections raised in the written statement, it was finally prayed that the petition be dismissed.;