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TMI Blog2003 (2) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer the said land and the effect of such transfer would lead to illegality. The fourth parties are bona fide transferees for value and thus their right of claiming interest cannot be jeopardized by reason of executive instructions or otherwise particularly in absence of any pleadings by the respondents No. 1 and 2 to the effect that fraud has been practised by the colonizer or the parties colluded with one another to achieve an illegal purpose. - CIVIL APPEALS NOS. 4908, 4909, 4910 AND 4911 OF 2002 - - - Dated:- 17-2-2003 - S.B. Sinha and AR. Lakshmanan, JJ. JUDGMENT Interpretation of Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called and referred to for the sake of brevity as the said Act ) falls for consideration in these appeals which arise out of a judgment and order of the Punjab and Haryana High Court dated 7.3.2001 passed in C.W.P. No.7245 of 1997 filed by the appellant of Civil Appeal No. 4908 of 2002. M/s. DLF Universal Ltd. (DLF) is a public limited company registered and incorporated under the Indian Companies Act. It purchased free-hold lands at Gurgaon in the State of Haryana for setting up a colo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7245 of 1997. It appears that a proposal was mooted in the said proceeding as to whether the dispute between the parties could be amicably resolved and pursuant thereto or in furtherance thereof by an order dated 21.9.2001 the Trust was given an opportunity by the High Court to obtain and file affidavits of the parties in whose favour licences had been granted for construction and running of the schools. Allegedly, the respondents No. 1 and 2 pursuant to the observations made by the High Court held meetings with all concerned an d found the said proposal to be acceptable. Thereafter affidavits were filed by the concerned fourth parties stating that they would abide by the conditions of the licence issued in favour of DLF as also the rules and regulations and instructions issued by the First and Second Respondents. In the said affidavits it was further affirmed that schools would be built within the time specified by the Respondents. The High Court by an order dated 13.12.2000 recorded that the parties had nearly reached a consensus and draft agreement was directed to be put up for its consideration. However, the learned Advocate General for the State of Haryana on or abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had undertaken to abide by the terms and conditions of the licence granted pursuant to or in furtherance of the said Act and the Rules framed thereunder, the purport and object for which Town Planning Act has been enacted would not be violated. It was argued that conversely if it be held that the DLF was entitled to transfer those lands to the third parties, the profits accrued by reason of the transactions of the Charitable Trust lose relevance for a decision upon the validity of the refusal of the Government to sanction the building plans. The learned counsel would submit that having regard to the expression development works meaning internal and external development works , used in the statute, no fetter on transfer of lands can be inferred, as long as lands reserved for construction of schools, hospitals, community centers etc. are used for the said purpose. By reason of the provision contained in Section 3(3) of the Act, it was submitted, the licensee was merely obligated to construct or get constructed schools, hospitals, community centers etc. and thus, in terms thereof no prohibition has been imposed as regard transfer thereof to an institution or an individual so as en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hospitals, community centres etc. at its own cost. It was submitted that if the State can take over the lands without payment of any compensation, it must necessarily be held that it has also the concomitant right to keep control thereover which would include imposing restriction on transfer of the said land. The owner of the land by necessary implication, the learned counsel would urge, was not entitled to exercise any right over the property and its right to use the same was restricted to get constructions raised through a third party wherefor also it has itself to incur costs. Mr. Anand would contend that the extent of regulation can further be judged by the fact that a colonizer is not entitled to enter into a profitable venture, the reasonable profit being restricted to 15% by the Legislature and thus in the event the owner could create third party and fourth party interests, the same would defeat the very purpose and object of town planning. The said Act was enacted to regulate the use of land in order to prevent ill plant and haphazard urbanization in or around towns in the State of Haryana. It came into force with effect from 16th November, 1971 except Section 10 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... develop a colony. Such enquiry is also required to be made having regard to the plan regarding development works to be executed in a colony and in conformity with the development schemes of the colonies of the neighbouring areas. In terms of sub-section (3) of Section 3 of the said Act, the Director upon arriving at a satisfaction as regard the requirements specified in Clause (a) to (f) would grant licence subject to the licensee s furnishing a bank guarantee and giving an undertaking as specified in clause (a) thereof. The relevant provision of Section 3(3) of the said Act reads thus: "(3) After the enquiry under sub-section (2), the Director, by an order in writing, shall \200\223 (a) grant a licence in the prescribed form, after the applicant has furnished to the Director a bank guarantee equal to twenty-five per cent of the estimated cost of development works as certified by the Director and has undertaken - - (i) \200 .. (ii) \200 .. (iii) the responsibility for the maintenance and upkeep of all roads, open spaces, public park and public health services for a period of five years from the date of issue of the completion certificate unless earlier relieved of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. Construction of schools, hospitals and community centres and other community buildings do not come within the purview of the term development works . They come within the purview of the term "Amenities". Only in relation to the development works the colonizer is bound to pay the development charges, carry out and complete development works. He has also the responsibility to maintain the same for a period of five years from the date of issue of the completion certification where after, the same is required to be handed over to the Government or the local authority as the case may be, free of cost. At the outset, we may notice that the cost of development works indisputably is to be raised from the plot holders, but as construction of schools, hospitals, community centres and other community buildings do not come within the purview of the term development works , the costs therefor are not to be borne by them. The expression "Development Work" as noticed hereinbefore is not synonymous with "Amenity". The expression "Amenity" has been used only in proviso appended to Clause (v) of Section 3(3)(a) and Rule 2(b) of the Rules. Rules are subservient to the Act, although t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose it seeks to achieve. State as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user. The plan provides that schools, hospitals etc. would be located at particular sites. When that purpose is satisfied, the Court in the name of interpretation would not make a further attempt to find out who did so. It is not in dispute that respondent Nos. 1 and 2 have sought to impose such a ban specifically by reason of the impugned circulars issued in the years 1994 and 1996, which in unmistakable terms go to show that even according to them such a bar did not exist prior thereto. It is accepted that even the concerned respondents had recognised at least three transfers. If transfer of the sites reserved for construction of school was prohibited under the statute, it is axiomatic that in absence of any provision contained therein, the respondent could not exercise any power of regularizing such transaction. A transfer prohibited by a statute would be illegal and not irregular. Once it is held that such trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cost for such a construction has to be borne by the licensee irrespective of the fact as to whether it undertakes such constructions itself or get them constructed by its contractors, there was absolutely no reason as to why clearer terms could not be used by the legislature. The words at his own cost refer to the licensee, whereas in the case of his nominee being either an institution or a person, as the case may be, the words at its cost have been used. The expression "at his own cost" and "at its cost" must be held to have separate and distinct meaning. They are not meant to aim at the same person. The words institution or person evidently do not refer to a building contractor as understood in ordinary parlance. It must be held to carry different meanings. Indisputably, any person can get constructions made on his own land either under his own supervision or through a contractor. For the purpose of raising constructions through a contractor, permission of the statutory authorities is not necessary. In that view of the matter, clearly the legislature did not contemplate that the words any other institution or individual refer only to a building contractor for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefor was not required. Basic Rule of interpretation of Statute is that the Court shall not go beyond the statute unless it is absolutely necessary so to do. Rule of purposive constructions would be resorted to only when the statute to observe or when read literally it leads to manifest injustice or absurdity. It may be true that 55% of the acquired lands were plottable but as to whether D.L.F. has recouped its investments by transferring the plottable land to the plot holders is a question which, in our opinion, is irrelevant for the purpose of construction of statute. The High Court, in our opinion, therefor, adopted a wrong approach. It is also incorrect to contend that that sub clauses (iii) and (iv) of Section 3(3)(a) of the Act stand on a different footing. A bare perusal of the said provision would clearly show they are not. In terms of clause (iii), a colonizer is responsible to maintain 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 the completion certificate whereas in terms of clause (iv), a colonizer undertakes to construct schools, hospitals, community centers and other commun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act was passed to give relief to the victims who, it was thought, were unable to establish their own rights and fight for themselves. It is common knowledge that the victims were poor and impoverished. How could they survive the long ordeal of litigation and ultimate execution of the decree or the orders unless provisions be made for their sustenance and maintenance, especially when they have been deprived of the right to fight for these claims themselves? We, therefore, read the Act accordingly." The said decision, therefore, was rendered in a completely different fact situation and is not applicable to the fact of the present case. In Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and two others [(1952) 3 SCR 683] this Court was considering the provisions of Preventive Detention Act. In that case the Court took recourse to literal meaning. It was held that the Court should not interpret an act in such manner which would defeat the provisions thereof whose meaning is quite plain. No exception to the said ratio can be taken. In The State of Punjab Vs. Ajaib Singh and Another [(1953) 4 SCR 254] this Court was considering the constitutional validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be a court. The said decision cannot be held to have any application in the instant case. The said decisions having been rendered on the fact of the matters involved therein and cannot be held to have any application whatsoever in the instant case. The question which now arises for consideration is as to whether clause (t) of the licence agreement can be read as a restriction of the right to transfer the community sites. Clause (t) of the licence agreement reads as under: (a) That the owner shall drive maximum net profit @ 15% of the total cost of development of a colony after making provisions of statutory taxes. In case the net profit exceeds the 15% after completion of the project period, surplus amount shall either be deposited within two months in the State Government Treasury by the owner or he shall spend this money on further amenities/ facilities in his colony for the benefit of the residents therein." The cap on profit, in our opinion, is irrelevant for the purpose of construction as regards the right of colonizer to transfer the land. Clause (t) of the Licence, in other words, cannot be construed to put in an implied limitation of the owner of the land to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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