High Court of Punjab and HaryanaCWP/13350/2021allowed

M/S Bajwa Developers Limited v. State Of Punjab And Others

2025-05-14Mr. Justice Sureshwar Thakur,Mr. Justice Vikas Suri30 pages

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- Petitioner-Bajwa Developers Limited has knocked the door of this Court for the accordings of the hereinafter extracted reliefs:- "Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of an appropriate Writ, Order or Direction, especially in the nature of a Writ of Certiorari for quashing the Notices (Annexures P-12 & P-14), whereby the respondents are demanding the External Development Charges etc. from the petitioner Company, so long the amount of compensation due to the petitioner Company on account of its land which has been acquired by the respondents to carve out/construct 200' wide Master Plan Road PR7) that passes through the same very projects (for which EDC etc. is being claimed)

+ is not paid/adjusted and further the claims of the petitioner Company qua providing less saleable area and illegal taking over 16.19 Acres land of the petitioner Company free of cost for EWS are redressed, total of which would exceed much more than the alleged EDC amount being claimed."

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6No.569 dated 18.05.2018, but becomes amenable to be released to the present petitioner.

(B) It is argued that as per the guidelines (Annexure P-6) issued by GMADA in respect of Mega Projects, the State Government becomes enjoined, to ensure the purveyings of basic amenities appertaining to powers, road accessibility, communication, civic and other infrastructure to the licensed projects, subject to issuance of completion certificate(s). (C) It is further argued that despite there being a provision in the Master Plan, qua theirs becoming constructed a 200' wide PR-7 road, yet the GMADA failed to provide land sufficient to carve out the said road. Therefore, left with no other choice, the petitioner company had to purchase the requisite land which falls under the 200' wide PR-7 road, from its erstwhile owner so as to provide accessibility. The total land which the petitioner company purchased for the aforesaid purpose comes to 30.22

C acres. Even after buying the aforesaid land, the respondent-GMADA, did not construct the required road and rather, it is only on 04.10.2013, that the respondent No.1 issued notification under Section 4 of the Land Acquisition Act, which was withdrawn subsequently, thus, in view qua then the provisions of the Right to Fair and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, rather had come into force. Resultantly, on 03.01.2017, the respondent No.1 issued a fresh notification under the aforesaid Act, thus, for the aforesaid public purpose. (D) Ultimately, it is submitted that the benefit of the Award bearing No.569 dated 18.05.2018 as became pronounced in respect of land measuring 30.

22 acres, owned and possessed by the petitioner company, thus, is required to be endowed to the petitioner, to the extent, that the compensation amount embodied thereins, and comprised in a sum of Rs.295.73/- crores (approximately) along with all the statutory benefits, rather becoming conditionally released to the present petitioner. (E) With regard to less saleable area having been made available to the petitioner company, it is submitted that the petitioner company is further entitled for the loss suffered by it. The GMADA has carved out too many sector roads, streets/passages in all the aforesaid three colonies set up by the petitioner-company, owing to which it has suffered a huge monetary loss, which as per Annexure P-16, thus, comes to Rs.1035/- crores (approximately).

(F) It is further submitted that as per notifications dated 07.11.2008 and 18.06.2009 (Annexure P-17 colly), the petitioner company was required to reserve 5% qua the purpose of creating the dwelling units for housing

> thereins the financially weaker sections of society. However, vide a later notification dated 31.12.2013 (Annexure P-18), the respondents imposed an absolutely illegal condition upon the petitioner-company for mandatory transfer of 5% area for EWS free of costs for the authority i.e. GMADA. (G) The abovesaid letter could not have been implemented against petitioner-company at least with regard to two of the aforesaid three projects/colonies, thus, for the reason, that the licence as well as the agreement as became already executed in respect of two projects, rather, both did respectively, come to be executed prior to 31.12.2013, Therefore, the respondents are liable to return an area of 16.19 acres or to monetarily compensate the petitioner company qua the said land, which was, rather free of cost, thus transferred for the aforesaid purpose by the petitioner.

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The relevant contents, as borne in the said affidavit, are embodied in para 6 thereof, para whereof become extracted hereinafter:- H='

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%6 Award bearing No.569 dated 18.05.2018. The relevant contents, as borne in the policy dated 06.02.2025 (Annexure P-19), are embodied in para (ii) thereof, para whereof become extracted hereinafter:- ii. Regarding immediate adjust(ment)/payment of the compensation amount as per the Collector rate in respect of the said land of the project of the promoters which comes under the Sector Dividing Road against the due E.D.C. and licence fee:

A. Those promoters who do not include the land falling under the Sector Dividing Road in the overall calculation while calculating the saleable area:-The promoter/developer shall be allowed without charges (CLU, EDC, LF/PF, SIF) an additional saleable area of 2.5% i.e., upto 57.5% in his/her project in the same ratio

-- in residential (plotted & group housing) and commercial component as provided in the project in lieu of his/her 2.5 acres of land for every 100 acres of the project area or on pro-rata basis as per the size of the project, if acquired for construction of Master Plan Roads, as compensation. He will be entitled to have extra density for utilization of additional saleable area and can compensate this additional saleable area from the public and semi public area. However, the area required for parks and open spaces shall not be compromised.

The above said benefit of additional saleable area shall be limited to maximum upto 2.5 acres of land falling in Master Plan Roads for every 100 acres of the project area or in proportion to the project area. The above benefit shall be on pro-rata basis of the area utilized for group housing, commercial, residential plotted in the project of the promoter. No compensation shall be given for the area falling in Master Plan Road maximum upto 2.5 acres for every 100 acres of the project area or in proportion to the project area utilized for achieving additional saleable area, even if promoter does not utilize or achieve this benefit of additional saleable area/FAR. This land will be transferred free of cost by the promoter to the Deptt. of Housing & Urban Development, Punjab by executing a conveyance deed.

However, if area under Master Plan Road exceeds the limit of 2.5 acres for 100 acre of project area or in proportion to the project area than compensation shall be given on the excess area at the rate of 1.25 times of the collector rate at the time of possession of land. This land will also be transferred by the promoter to the Deptt.

-+ executing a conveyance deed.

B. Those promoters have include the land falling under the Sector Dividing Road in the overall calculation while calculating the saleable area:- Since these promoters have already included the land falling under the Sector Dividing Road at the time of calculating the saleable area in the overall calculation, meaning thereby that they have taken the benefit of the saleable area, therefore, such promoters shall not be covered under the aforesaid policy.

C. Those promoters who have already executed an agreement in respect of land-(sic) falling under the Sector Dividing Road under the present policy, they will also be treated under the aforesaid policy.

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An affidavit has been filed duly sworn by Shri Jarnail Singh Bajwa, Managing Director of M/s Bajwa Developers Limited, thus, has been taken on record, through an unobjected order becoming passed on 03.05.2025 upon the apposite miscellaneous application, the relevant contents whereof are extracted hereinafter:- "16. That the deponent being the Managing Director of the petitioner company undertakes that he or the petitioner company has no objection if after adjusting the amount of compensation receivable by the petitioner company against the land in dispute (approximately 30.22 Acres) in terms of the aforesaid Award No.569 dated 18.05.2018 (Annexure A-1) and Award dated 22.12.2023 (Annexure A-2) against the EDC and Licence Fee due along with reasonable interest, is paid back to the petitioner company."

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6 Award bearing No.569 dated 18.05.2018.

E. The relevant statutory provisions, as embodied in Section 5 of the Punjab Apartment and Property Registration Act, 1995 (hereinafter referred to as 'the PAPRA Act') become extracted hereinafter:- "[5. Development of land into colony. - (1) Any promoter, who desires to develop a land into a colony having the prescribed qualifications, shall make an application in the prescribed form alongwith his title of minimum twenty five per cent of project land and irrevocable consent for the rest of land, if it is owned by other persons, permission for conversion of land use from the competent authority and the prescribed information, with the prescribed fee and charges, to the competent authority for grant of permission for the same and separate permission shall be necessary for each colony.

(2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title of the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighboring areas, plan of development works to be executed in the colony, and in case of apartment buildings, design, specification of material to be used, common areas and facilities to be provided, structural safety and fire safety and such other matters as it may specify, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in

-= writing recording reasons either granting or refusing to grant such permission.

(3) Where an order is passed granting permission under sub-section (2), the competent authority shall grant a license in the prescribed form after the promoter has complied with the following conditions, namely: - (i) the promoter shall acquire the title of land not owned by him, within the time period given in the terms and conditions of the licence, and shall not make any sale or transfer of land which is not under his title;

(ii) furnish a bank guarantee equal to thirty five percent of the estimated cost of the development works certified by the competent authority, or mortgage plots falling in the same project equal to thirty five percent value of estimated cost of development by equitable mortgage deed to the satisfaction of the competent authority in the manner prescribed, which shall be marked on the layout plan and entered in the revenue record; (iii) has entered into an agreement with the competent authority in the prescribed form for carrying out the development works in accordance with the conditions of the licence;

(iv) has paid, subject to the provisions of subsection (6), the Change of Land Use Charges, External Development Charges and such other charges, as may be notified by the Government from time to time.

(4) In case, a promoter intends to revise the layout plan or zoning plan of the approved colony or building plan, he shall be required to obtain a revised permission, subject to fulfilment of all liabilities created due to prior permission, on payment of such charges and such fee and

-< on such terms and conditions, as may be specified after giving due notice to the plot or apartment holders. However, the said revision shall not extend the period of validity of the license granted under sub-section (3).

(5) The license granted under sub-section (3), shall be valid for a period of five years and shall be renewable for a further period of two years on payment of such fee and charges, and on such terms and conditions, as may be specified by the competent authority.

(6) The promoter shall enter into agreement give undertaking to pay development charges for external development works carried out or to be carried out by the Government or a local authority.

(7) The State Government shall determine the development charges and the time within which such development charges as referred to in subsection (6), shall be paid to the State Government or to such authority, as may be notified by the State Government.

(8) The Government may allow payment of external development charges and other charges mentioned in such installments, as may be notified by it from time to time. In such case, the first installment shall be deposited before the grant of licence and the promoter shall furnish and give undertaking to pay the balance installments as per notified schedule supported by such additional bank guarantee or mortgage of such additional property, as may be necessary to secure payment of the balance installments.

(9) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Punjab Regional and Town Planning and Development Act, 1995 (Punjab Act 11 of 1995).

(10) The promoter shall construct or get constructed at his own cost, schools, hospitals, parks, community

-C centers and other community buildings, on the land set apart for this purpose or promoter may sell or transfer land meant for schools and hospital etc. on such terms and conditions, as may be specified by the Government. Further, the area under roads, open spaces, parks and other public utilities shall be transferred to the local authority before issue of completion certificate.

(11) The promoter shall, reserve five percent area of the gross project area in the case of colony and ten percent of the apartments in the case of apartments in the manner, as may be specified by the Government for reservation and disposal of such plots/apartments for economically weaker section of the society.

(12) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorized by it to inspect such execution

(13) The promoter shall be responsible for the maintenance and upkeep of all roads, open spaces, public parks and public health services for a period of five years from the date of issue of completion certificate or till the date of transfer the same, free of cost to the State Government or the local authority:

Provided that after the completion of development works in the colony, in all respects, the competent authority, may allow the promoter to hand over the maintenance of the infrastructure and services mentioned in this subsection to an association of residents formed under section 17-A, which shall be responsible for management, maintenance, upkeep of common areas, infrastructure and common services of the colony.

(14) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any

-> conditions of the licence granted under sub-section (3), the competent authority may, after giving an opportunity of being heard, suspend or cancel the licence and enforce the bank guarantee or mortgage property furnished by the promoter under subsection (3).

(15) When a licence is suspended or cancelled under subsection (14), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee or by disposal of mortgaged property, recover such charges, as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue.

(16) The liability of the promoter for payment of development charges referred to in sub-section (15), shall not exceed the amount the promoter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount, which they would have to pay to the promoter towards the expenses of the said development works under the terms and conditions of the agreement of the sale or transfer entered into between them: Provided that the competent authority may, recover from the allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.

(17) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (15), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title of, the land to the allottees within a specified time, authorize the promoter by an order to receive the balance amount, if any, due from the allottees

+7 after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title of, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and title of, the land to the allottees on receipt of the amount which was due from them.

(18) After meeting the expenses on development works under subsection (15), the balance amount shall be payable to the promoter.]"

F. The above extracted provisions, do not, excepting the envisaged therein contemplations, rather create any fetter against the releasings of determined compensation amounts viza-viz the land owner. As such, the policy cannot derogate from the supra extracted statutory mandates, whereunders the licences became issued. Since the policy has derogated from the supra statutory provisions, therebys, the policy is ex facie void, on the ground that it transgresses the specific mandates, as become enclosed in the supra extracted statutory provisions. G. Moreover, since no notification became issued by the acquiring authority, thus, denotifying the acquired lands from acquisition nor when any writ petition became filed by the acquiring authority, wherebys, thus, on the basis of the supra policy, rather the acquiring authority sought the annulling of the appositely passed award(s). Therefore, the omission supra leads this Court to firmly conclude, that the policy was made in

+- usurpation of the supra statutory provision, besides is made without the same being well anvilled upon any statutory provision, as contemplated in the Act of 2013. > &"

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17 Managing Director of the petitioner-company, M/s Bajwa Developers Ltd. Moreover, in terms of the affidavit sworn by Shri Jarnail Singh Bajwa, Managing Director of M/s Bajwa Developers Limited, he is to file an apposite application before the learned Reference Court concerned, stating thereins the account number of the GMADA, whereinto the compensation amount is to be remitted.

25.

It is also directed that the fullest complement of the determined compensation amounts will be forthwith deposited by the respondent concerned, before the Court concerned and the same shall be, also in the supra manner, thus, released to the GMADA. It is clarified that the said deposit shall be, in the manner detailed in connected writ petition bearing No.CWP-20106-2021, thus, become utilized for the executions of the incomplete/left over developmental works at the sites of the colonies concerned.

26.

Pending applications, if any, also stand disposed of. -

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