UMA NATH SINGH,J. - (1.) ABB Limited (petitioner herein), has filed this writ petition for issuance of a writ, order or direction in the nature of certiorari to quash the demands raised by respondent herein, Haryana Urban Development Authority (for short, 'HUDA'), vide notices (Annexure P-18 and Annexure P-19) dated 25.7.2005 and 14.3.2006, for Rs.99.00 lacs, towards development charges. Petitioner-company has also sought a writ to quashthe impugned order dated 7.12.2006 (Annexure P-23), rejecting the representation of petitioner and thereby reiterating the demand for development charges, as raised in the impugned notices.
(2.) THIS appears from the averments and writ records that petitioner herein, is the successor company to M/s Taylor Instrument Company Limited, which was incorporated on 17.7.1964. Later, M/s Taylor Instrument Company Limited was changed to M/s Birla Kent Taylor Limited, vide certificate dated 26.7.1993. And it was further changed to M/s ABB Instrumentation Limited (petitioner herein), in the year 1998. It seems that an area of land measuring 55 kanals and 7 1/2 marlas belonged to erstwhile company M/s Taylor Instrument Company (India) Limited, the predecessor of petitioner herein. That land was acquired in the year 1971-72. However, State Government of Haryana, after considering the objections filed by Company that a factory existed from before on the land under acquisition, released the land in question, subject to conditions that petitioner-company would apply for the change of land use (CLU) and pay the development charges proportionately under Rule 26- D (Clause-II) of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Rules, 1965. Under the said Rule (Rule 26-D), petitioner was also required to enter into an agreement for the change of land use on such terms and conditions as stipulated in that agreement. Thus, in lieu of release of 55 kanals and 7-1/2 marlas land as aforesaid, petitioner-company entered into an agreement dated 26.5.1972 with Director, Town and Country Planning Department, Haryana, for the change of land use. One of the conditions, as stipulated in that agreement for the grant of permission to change the land use, was that the petitioner company was required to pay the proportionate development charges firstly for land and then for external development works to be carried out by the department of Government in respect of the land under release. Relevant conditions of the agreement dated 26.5.1972, as agreed into between both parties, are reproduced hereunder: "1. In consideration of the Director agreeing to grant permission to the promisee to build Factory Buildings, Administrative Block, Warehouse, Godown, Watch and Ward quarters and such other Buildings as required from time to time, on the land mentioned on Annexure I, hereto on the fulfillment of all the I conditions of rule 26-D by the Promisee, the Promisee hereby covenants as follows : A) That the promisee shall pay proportionate development charges which shall be a first charge on the said land as and when required and as determined by the Director in respect of external development works which may be carried out in the area for the benefit of the said land. B) That the promisee shall be responsible for making arrangement for the disposal of affluent to the satisfaction of the Director. C) That the promisee shall get the plan approved from the Director before commencing any construction on the said land. xx xx xx xx 2. Provided always and it is hereby agreed that if the promisee shall commit any breach of the terms and conditions of this agreement, then, notwithstanding the waiver of any previous cause or right, the Director may revoke the permission granted to him. 3. Upon revocation of the permission under clause 2 above, the Director may recover the proportionate development charges incurred on the said development works pertaining to the said land, as may be determined by the Director." Pursuant to the execution of said agreement, petitioner-company was asked to deposit the development charges amounting to Rs. 38,720/- on or before 1.12.1977 and the balance amount in 9 annual equal instalments of Rs. 45,315/- alongwith 7% interest per month each on or before 1st December of each year, vide letter dated 14.1.1977. This was also clarified that in the case of default of payment, the permission so granted for change of land use, could be revoked. It appears that after the receipt of notice dated 14.1.1977, petitioner company had made the full and final payment of Rs. 3,57,838/- with simple interest @ 7% per annum as per the statement of account dated 20.12.1999. However, this fact is disputed by respondent authority while stating that the petitioner-company failed to deposit the initial amount as also 9 instalments within the stipulated period of 9 years i.e. upto the year 1986, as per the agreement, thus, also failed to comply with the terms and conditions of agreement for the change of land use. According to authority, first instalment was deposited in the year 1991 after a delay of 14 years. This is also mentioned in reply that the petitionercompany remained silent for more than 14 years and did not discharge its liability to make the payment of development charges which was required to be utilized for providing civic amenities and carry development works in that area. Contrary to assertion of authority, this is submitted on behalf of petitioner-company that the Estate Officer of authority did not raise any objection for about 3 years after the entire dues were cleared in the year 1999 and a dispute started only after coming into force of a new policy notified on 8.7.2002 (Annexure P-24), fixing the revised rates of development charges at Rs.200/- per square yard. As per the new policy, the land owners who had failed to pay the entire development charges or made the part payments, were also to pay the enhanced rates of charges. Hence, the petitioner-company was served with a demand notice dated 25.7.2005 for the payment of enhanced development charges calculated at Rs. 200/- per square yard i.e. Rs. 97,96,500/- (Annexure P-18). A further demand notice dated 14.3.2006 for Rs. 99,00,000/- (Annexure P-19) was also served. Hence, the petitioner-company filed a Civil Writ Petition No. 7594 of 2006 in this Court, which was disposed of vide order dated 18.5.2006 with direction to Estate Officer, HUDA, to consider the representation of petitioner by passing a speaking order within a period of 2 months. Respondent-authority considered the representation of petitioner towards compliance of the said order dated 18.5.2006 passed by this Court, and finally dismissed it by passing a speaking order dated 7.12.2006 (Annexure P-23).
(3.) WE have heard learned counsel for parties and perused the writ records. Learned Senior Counsel Mr.Sarin submitted that the petitionercompany deposited the external development charges with simple interest @ 7% per annum, way back in year 1999, as detailed in Annexure P-25 of this writ petition, as under :- Sr.No. Receipt No. Date Amount Pay slip issued by Central Bank of India, NIT, FBD. 1. 20.11.1991 38,720.00 74142 2. 26.02.1992 50,000.00 74621 3. 21.02.1992 45,315.35 5 No.1335 4. 40166 04.02.1994 45,313.35 5. 107243 30.12.1994 45,313.35 6. 125436 02.01.1996 45,313.35 7. 142705 27.12.1996 45,313.35 8. 158334 22.12.1997 45,313.35 9. 172642 24.12.1998 45,313.35 10. 185880 20.12.1999 40,630.55 Total: 4,46,558.00 This is also a submission of learned Senior Counsel that since the development charges were deposited with chargeable interest and no any further demand was raised thereafter, there is no ground for the respondent Authority to impose a revised development charges in terms of policy dated 8.7.2002 (Annexure P-24). This is further submitted by learned Senior Counsel that some similar issues came up for consideration in the matter of National Air Products Limited v. Haryana Urban Development Authority and others, reported in 2004(2) PLR 7, which were dealt with vide Para Nos. 11, 12 and 13 of the judgment of that case by a Coordinate Bench of this Court, as under : ".....11. In the present case, there is no dispute that respondents are entitled to charge external development charges @ Rs. 10/- per square yard nor there is any dispute that the petitioners are liable to pay the same because the permission for change of land use has been granted on that condition. The dispute, however, revolves around the rate of interest and penalty imposed on the petitioner. A perusal of Annexures P-5 and P-6 dated 26.5.1976 and 25.11.1976 clearly shows that development charges @ Rs. 10/- per sq. yard were demanded and the total sum specified in the impugned order is Rs. 1,79,080/-. It is further clear that the Department has allowed payment of development charges in easy instalments after paying the lump sum to the extent of 25/20 present of the total amount. It is further clear that some negotiations with the association of the Chambers of Commerce and Industry and Industrial Manufactures Association were held. At one stage, it was proposed to charge 50 ps. per square yard as is clear from the communication Annexure P-9. However, formal order of the Government were yet to be passed and the meeting was convened on 26.2.1977. Eventually, the aforementioned proposal did not mature and the department raised the demand on 24.11.1977 @ Rs. 10/- per square yard as was ordered earlier vide Annexure P-5 and P-6. Some payment appears to have been made on 17.11.1987. The petitioner was intimated that recovery in accordance with the decision of the HUDA is to be made at the first instance and for the remaining amount bank guarantee was required to be furnished. In old cases if development charges have not been paid then proceedings under Section 4 of the Land Acquisition Act were to be undertaken. In the wake of the aforesaid decisions, the petitioners were again asked to deposit a sum of Rs. 1,52,219/- alongwith 10 percent interest failing which necessary action was to be initiated. However, nothing was paid by the petitioner and as a result, the show cause notice under Section 17(1) of the HUDA Act was issued to the petitioner for showing cause as to why a penalty of Rs. 1,67,445/- with ten percent interest be not imposed upon the petitioner as he was required to submit the bank draft of Rs. 1,67,445/-. On the pretext of loss of documents, the petitioner failed to file the reply which resulted into passing of the order dated 13.12.2001 directing the petitioner to pay a sum of Rs. 45,72,000/- calculating the interest @ 18 percent w.e.f. 15.1.1987. Again a reminder was sent on 17.1.2002. 12. Having gone through the documents placed on the record, we are satisfied that the petitioner has been successfully delaying the payment of development charges on one pretext or the other. After the issuance of order Annexure P-5 on 26.5.1976 and P-6 on 25.11.1976, there was no legal execute with the petitioner to defer the payment of development charges as demanded therein. In any case, the decision taken to adhere to the previous formula as mentioned in the order dated 26.5.1976 (Annexure P-5) and 25.11.1976 (Annexure P-6) should have been complied with by the petitioner and the payment should have been made. We are further of the view that the rate of interest @ 18 percent levied by the respondents is on the higher side as held by the Supreme Court in Roochira Ceramic's case (supra). It has been held that in case of default of payment interest @ 10 percent as against 18 percent has to be charged. The observations of the Supreme Court in this regard reads as under:- "Learned counsel appearing for the appellant, urged that the consistent view of the High Court has been that where an allottee has committed default in payment of instalment, the Authority was made to charge interest at the rate of 10 percent and not 18 percent. It is also urged that the judgment of the High Court has been upheld by this Court. Learned counsel appearing for the appellant, referred the judgment of the High Court of Punjab and Haryana, passed in CWP No.12975/94 decided on 25.8.1996 wherein the Division Bench of the High Court held that the Authority is entitled to charge interest at the rate of 10% and not 18% when there is default in payment of instalment. The Special Leave Petition No.23203/96 preferred by the authority against the said judgment was dismissed on 9.12.1996. The decision of the High Court of Punjab and Haryana in CWP No. 16487/91 Harish Kumar Virja v. State of Haryana and another, which was followed in other cases, laid down that the Authority in cases of default in payment of instalments is entitled to charge interest at the rate of 10%. Learned counsel, appearing for the respondents, conceded that no special leave petition was filed against the said judgment and the said judgment has attained finality. In view of the aforesaid decision, we are of the view that the respondents were entitled to charge interest @ 10% only and not 18%. Since the appellant had deposited interest @ 18%, the Authority under law is required to refund the excess of the interest released from the appellant. For the aforesaid reason, the judgment under appeal is set aside. The respondent-Authority is directed to refund excess interest realised from the appellant within three months from the date of service of certified copy of this order. (emphasis supplied). ;