Holding

The demand for Rs.61,000 per gross acre for internal community buildings is not authorized by the Act or the licence agreement and is therefore illegal, with no waiver applicable.

Summary

Ansal Properties & Industries Ltd., a colonizer, was directed by the Director, Town and Country Planning, Haryana to pay Rs.61,000 per gross acre as part of external development charges, allegedly for internal community buildings. The appellant contended that the demand was unauthorized because the land for such buildings had been transferred to the Government free of cost, and that the Act and licence agreement only required construction or transfer, not a monetary charge. The High Court held the demand justified, but the Supreme Court examined the plain language of Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975 and the licence terms, finding no provision for a payment for internal community buildings. The Court also rejected the applicability of waiver and acquiescence, noting the payment was made under protest due to a threat of licence cancellation. Consequently, the demand was declared illegal, unjustified, and the amount paid was to be adjusted against the appellant’s dues, with the appeal allowed.

Issues considered

Whether Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975 authorises a demand for payment towards internal community buildings when the land is transferred to the Government free of cost.
Whether the demand for Rs.61,000 per acre can be treated as part of external development charges.
Whether the writ petition challenging the demand is maintainable.
Whether the principles of waiver and acquiescence apply to the payment made under protest.
How the licence agreement should be interpreted with respect to construction or transfer of community buildings.

Legislation cited

Companies Act, 1956
Haryana Development and Regulation of Urban Areas Act, 1975s. 2, s. 3(3)(a)(iv), s. 5, s. 8
Haryana Development and Regulation of Urban Areas Rules, 1976s. 11, s. 4, s. 5
Land Acquisition Act, 1894

Subjects

urban developmentinternal community buildingsexternal development chargesstatutory interpretationwaiveracquiescencelicence agreementillegal demandland transfergovernment

Judgment

[2009] 1 S.C.R. 553

- ...... M/S. ANSAL PROPERTIES & INDUSTRIES LTD. A
v.
STATE OF HARYANA & ANR.
(Civil Appeal No. 8186 of 2001)
JANUARY 23, 2009
8
[R.V. RAVEENDRAN AND DR. MUKUNDAKAM
"- ;.. SHARMA, JJ.]

Urban Development:
c
Haryana Development and Regulation ot Urban .Areas
Act, 1975 - s. 3(3)(a)(iv) - Haryana Development and
Regulation of Urban Areas Rules, 1976 - rr.4, 5 and 11 -

-. Demand on account of construction cost of Internal
community buildings, when land transferred by colonizer to
Government free of cost - Held: There is no requirement for
D
the licensee to provide for or to make payment for the cost of
construction of internal community buildings when the land
is transferred to the Government free of cost either in the
statute or in the licence agreement- Since the land was given
E
free of cost, it was open to the Government to get the
remaining community buildings constructed either by
themselves or through any agency or institution or individual
,. i
at its cost - Government cannot demand that the buildings
on the said lands which were transferred to them free of cost
should also be constructed by the colonizer/developer and F
then transfer the land to them along with the construction
thereon and on failure to construct, to pay for the cost of
construction - That would be illegal and unauthorised
demand as it has no statutory mandate - Word used in s.
3(3)(a)(iv) is "land" - The Government's claim is therefore G
~ ......... restricted to lands which the colonizer failed to develop as
community centres - On facts, colonizer on receipt of the
demand letter raised objection regarding the charge -
Payment by colonizer was due to the threat of cancellation of
553 H
554 SUPREME COURT REPORTS [2009) 1 S.C.R.

A its licence - Payment was thus made under protest -
Therefore, principle of waiver and acquiescence would not be ,..
applicable - Waiver/acquiescence - Principle of.

Interpretation of statutes: Reading a statute - Held: Court
cannot read anything into a statutory provision which is plain
8
and unambiguous - Language employed in a statute is
determinative factor of legislative intent - When language of
enactment is clear and unambiguous, it would not be proper
for courts to add any words thereto and evolve some
legislative intent, not found in the statute.
c
Waiver and acquiescence - Principle of - Applicability
- Held: In order to constitute waiver, there must be voluntary
and intentional relinquishment of a right - The essence of a
waiver is an estoppel and where there is no estoppel, there is
o no waiver- Estoppel and waiver are questions of conduct and
must necessarily be determined on the facts of each case.

The respondent No. 2, Director, Town and Country
Planning by letter dated 11.01.1988 informed the appellant
E Company that it was required to pay due amount of Rs.
3.72 lacs per gross acre on account of external
development charges. It was also mentioned in the said
letter that an amount of Rs.3.72 lacs per gross acre, in
fact included Rs. 61,000/- per gross acre on account of
internal community buildings for which no recovery
F should be made from the plot holders. Under letter dated
7.10.1993, the appellant- Company was informed that
before its licence could be considered for renewal, the
appellant Company was required to pay the charges.
Subsequently on 4.05.1994, respondent No. 2 issued
G letter to the appellant informing that the licence of the .,.... '
appellant would be renewed only after the deposit of the ·
amount demanded. Aggrieved by these letters, the ..
appellant Company made several representations to
respondent Nos. 1 and 2 contending that as per the
H licence agreement and also as per the provisions of the
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 555
HARYANA & ANR.
.. """!'

Haryana Development and Regulation of Urban Areas A
Act, 1975 and the Haryana Development and Regulation
of Urban Areas Rules, 1976, the appellant Company was
not liable to pay the amount of Rs. 61,000/- per gross acre
towards the construction of internal community
buildings; and that the demand was not only unjust and B
arbitrary but also contrary to licence agreement and also
..... _ . against the provisions of the Act and the Rules framed
thereunder. As these representations were not favourably
considered, the appellant Company filed a writ petition
before the High Court challenging the demand letters
dated 11.1.1988, 17.10.1993 and 4.5.1994 to the extent of
c
demand for Rs. 61,000/- per acre (and interest thereon)
on account of internal community buildings, by including

-
/
\ it in the external development charges.

The High Court held that the appellant failed to
develop the said buildings which it was obliged to do and
D

thus the Director was justified in demanding the said
amount.

In appeal to this Court, it was contended for the E
appellant that the Director, respondent No. 2, while
making the unlawful demand of Rs. 61,000/- per gross
,. ,. acre in the name of construction of internal community
buildings, acted arbitrarily, unfairly and unreasonably
inasmuch as he had no power or authority to include the
F
cost of internal community buildings in the external
development charges.

The respondent No. 2 contended that the writ petition

-. itself was not maintainable, inasmuch as, the contention
of the appellant was that the impugned demand made
was outside the provisions of the Act and the Rules and
therefore the actual remedy that was available to the
G

appellant to challenge the said demand was by way of
filing a civil suit; that the writ petition filed by the appellant
was in the nature of claim for rendition of accounts for H
556 SUPREME COURT REPORTS [2009] 1 S.C.R.

"" .,
A which the writ was not a proper remedy; that the demand
made was within the jurisdiction and parameters laid
down in section 3(3)(a)(iv) of the Act; and in the
alternative it was contended that in that event, the entire
amount for which demand was raised has since been
B paid by the appellant and therefore, the principle of
waiver and acquiescence would apply to the facts and
circumstances of the case. ~ ~

Disposing of the appeal, the Court

c HELD: 1. The respondent No. 2 was not authorized
or justified in raising the demand of Rs. 61,000/- per gross
acre. Whatever payment is made in respect of the
aforesaid demand was not payable by the appellant to
the respondent No. 2 as the said demand was illegal,
D unjustified and unreasonable. The said amount payable
by the respondent No. 2 be adjusted towards the dues
of the appellant. [Para 35] [584-C-D]

2. The issue was as to whether or not demand could
be made and was supported by the statutory provisions.
E Thus, writ petition was competent and maintainable: [Para
16] [575-G]

3.1. Section 3(3)(a)(iv) of the Haryana Development . '
and Regulation of Urban Areas Act, 1975 is the relevant
F provision and the merit of the claim and repudiation
thereof is based on the interpretation of the said
provision. Section 8 of the Act provides that the Director
could cancel the ticence given to the developer colonizer
if he contravenes any of the conditions of the licence or
G the provision of the Act or the Rules made thereunder .~
and after the cancellation of the licence, the Director may
himself carry out or cause to be carried out the
development works in a colony and recover such other
charges as the Director may have to incur on the said
H
development work from the colonizer and the plot
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 557
HARYANA & ANR.
.. . .....,. holders. [Para 17) [576-A, D-F] A

3.2. The comparative reading of the provisions of
Section 3(3){a)(iv) and sub-clause (b) of clause (1) of the
Licence Agreement would clearly show that the licensee-
colonizer is required to construct at his own cost, B
schools, hospitals, community centres and other
community buildings or may get the same constructed
"f . . . by any other institution or individual. The developer also
has the option to transfer to the Government at any time,
if so desired by the Government, free of cost the land set
apart for schools, hospitals, community centres and
c
community buildings in which case the Government
would be at liberty to transfer such land to any person
or institution including a local authority on such terms
and conditions as it may deem fit. The said provision,
D
." therefore, gives three options for construction of such
community centres and facilities like schools, hospitals,
community centres and other community buildings. Such
centres and buildings could be constructed by the
developer himself or he may get the same constructed
by any other institution or individual whereby such E
individual would be able to utilize the said building. In
case the developer fails to exercise either of the aforesaid
two options, a third option is also open to the developer
, ·-" under which he would transfer the said land, where the
community facilities are to be established, free of cost to F
the Government in which case such schools, hospitals,
community centres and community buildings could be
constructed either by the Government itself or the said
land could be transferred by the Government to any
person or institution including a local authority on such G
terms and conditions as the Government may deem fit.
·;..; The aforesaid provision is clear and explicit and there is
no ambiguity in it. [Paras 18 and 19) (576-F-H; 577-A-E]

3.3. There is no mention at all of any requirement for
H
558 SUPREME COURT REPORTS [2009] 1 S.C.R.

A the licensee to provide for or to make payment for the
cost of construction of internal community buildings
when the land is transferred to the Government free of
cost. No such statutory basis could be shown either in
the statute or in the licence agreement. There is no
B dispute with regard to the fact that the developer of the
colony, namely the appellant has carried out all the
internal development works as required to be done which
is statutorily provided for. A part of the community centre . ,.
has also been constructed by the developer themselves
c but the entire community centre could not be developed
by it or through its agencies and therefore the land
allocated for the remaining community buildings/
development was transferred to the Government free of
cost. Since the land was given free of cost, it was open
to the State Government to get the remaining community
0
buildings constructed either by themselves or through
any agency or institution or individual at its cost in terms
of the provisions of the Act, in which case the terms and
conditions could be laid down by the Government for
such community buildings, to be constructed on the land
E which is transferred to it by the appellant free of cost. The
Government cannot in law demand that the buildings on
the said lands which is to be transferred to them free of
cost should also be constructed by the appellant and
then transfer the land to them free of cost along with the
F construction thereon and on failure to construct, to pay
for the cost of construction. That would in fact be a case
of an illegal and unauthorised demand as it has no
statutory mandate. [Paras 21 and 22) [578-D-E; 579-A-C]

G 3.4. The word used in Section 3(3)(a)(iv) is "land" and
it has been specifically mentioned therein that if the
colonizer does not construct the community buildings ~·
and facilities on its own or through its agency or
organization or individual, then the said licensee would
H
'
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 559
HARYANA & ANR.
be required to transfer the said land set apart for the A
~~
aforesaid purpose free of cost to the Government. The
Government's claim is therefore restricted to lands which
the developer has failed to develop as community
centres. If the legislature had intended that the licensee
is required to transfer the land and also to construct the B
buildings on it or to make payment for such construction,
the legislature would have made specific provisions
~ ~ laying down such conditions explicitly and in clear words
in which event the provisions would have been worded
in altogether different words and terms. It is well settled
principle in law that the court cannot read anything into
c
a statutory provision which is plain and unambiguous.
The language employed in a statute is determinative
factor of legislative intent. If the language of the
enactment is clear and unambiguous, it would not be
D
- .,- proper for the courts to add any words thereto and evolve
some legislative intent, not found in the statute. [Paras 23
and 24] [579-D-H; 580-A-B]
Ganga Prasad Verma (Dr.) v. State of Bihar (1995) Supp.
(1) SCC 192 and DLF Qutab Enclave Complex Educational E
Charitable Trust v. State of Haryana (2003) 5 SCC 622, relied
on.

,, ,, 4. No power and jurisdiction was vested in the
Government to make such a demand for the simple
F
reason that there was neither any statutory support nor
any policy decision in support of the same. Even in the
Licence Agreement, nothing was contemplated to the
effect that in addition to the liability to transfer the land
set apart for the said buildings to the Government free of
cost, on the contingency mentioned in the statute and G
relied in the Licence Agreement, the licensee is also
~-"'" required to pay for the construction of said buildings.
[Para 31] [582-G-H; 583-A]
5.1. The principles of waiver and acquiescence is not H
560 SUPREME COURT REPORTS [2009] 1 S.C.R.

A attracted to the facts of the case. In the letter dated
08.02.1988 which was written by the appellant in
response to the letter of respondent No. 2 dated
11.01.1988 on the subject of payment of external
development charges, it was clearly stated that the
8 revised rates which is since determined by the Director
in their communication dated 18.9.1987 and its further
revision are not covered by the clause of the agreements.
In the said letter it was specifically stated that the
respondent No. 2 had included an amount of Rs. 61,000/
- per gross acre on account of community buildings in
C the external development charges, which is not payable,
as according to the requirements of the Act and licence
the appellant was required to pay external development
charges only and there was no mention of charges
towards construction of internal community buildings in
D case the land set apart for the said purpose is transferred
to the Government free of cost. Therefore there was a
protest and demur on the part of the petitioner against
the aforesaid demand. [Para 32] [583-C-F]

E 5.2. In order to constitute waiver, there must be
voluntary and intentional relinquishment of a right. The
essence of a waiver is an estoppel and where there is no
estoppel, there is no waiver. Estoppel and waiver are
questions of conduct and must necessarily be
F determined on the facts of each case. It is thus
established that the appellant on receipt of the demand
issued by respondent No. 2 raised this objection
regarding the charge and the demand made and the
payment which was made by the appellant was due to
G the threat issued by respondent No. 2 that on failure of
the appellant to pay the same its licence would stand
cancelled. Such demand was made by the appellant
under protest. Therefore, the principle of waiver and
acquiescence would not have application. [Paras 33 and
H 34) [583-G-H; 584-A-B]
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 561
HARYANA & ANR.

Municipal Corpn. of Greater Bombay v. Hakimwadi A
Tenants' Assn. (1988) Supp SCC 55, referred to.

Case Law Reference:

(1995) Supp. (1) sec 192 relied on Para 25
B
(2003) 5 sec 622 relied on Para 30

(1988) Supp SCC 55 referred to Para 33
CIVIL AP PELLATE JURISDICTION : Civil Appeal No.8186
of 2001.
c
From the Judgment & Order dated 29.7.1999 of the High
Court of Punjab & Haryana at Chandigarh in C.W.P.No. 6565/
94.
Arun Jaitley, R.S. Suri, Mohd. Wasay Khan, Arun Monga
and Nsurat for the Appellants. 0

An up G. Chaudhary, Manjit Singh and T.V. George for the
Respondent.
The Judgment of the Court was delivered by
E
DR. MUKUNDAKAM SHARMA, J.1. The issue that falls
for our consideration in this appeal is in respect of a demand
of Rs. 61,000/- per gross acre, raised by the second
respondent towards the external development charges but
actually on account of construction of internal community F
buildings, with a further stipulation that no such charge would
be realised from the plot holders.

2. The appellant has challenged the said demand of the
second respondent as unlawful being contrary to the statutory
provisions pertaining to the construction of internal community G
buildings, which only mandates transfer of land free of cost to
the Government, if the Government so desires, but without
providing for any amount chargeable from the licensee to the
Government for the construction of these internal community
buildings. H
562 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 3. These challenges are made by way of filing the present ~
appeal which is filed against the judgment and order of the .
Division Bench of the Punjab and Haryana High Court dated
29.07.1999 whereby the writ petition filed by the appellant was
dismissed.
B
4. Appellant is a public limited company registered and
incorporated under the Companies Act, 1956 and is into the
business of real estate development and development of
colonies. Since 1983, the appellant Company had been
c granted licenses by the Director, Town and Country Planning
(for short "Director") being respondent No. 2 herein under the
provisions of Haryana Development and Regulation of Urban
Areas Act, 1975 (for short the "Act") and Haryana Development
and Regulation of Urban Areas Rules, 1976 (for short the
"Rules") for setting up colonies in the District Gurgaon, Haryana.
D For the said purpose, agreements were entered into from time
to time between the appellant Company and respondent No. 2
in the prescribed form i.e. LC-IV, under Rule 11 of the Rules.
The said licenses were renewed from time to time.

E 5. As per clause 1 of the Licence Agreement, the licensee
is required to fulfil the conditions laid down in Rule 11 of the
Rules. However, before we go into the various terms and
conditions of the licence, we think it to be useful to refer to and
extract some of the relevant provisions of the Act read with the
F Rules. The said Act and Rules were framed to regulate the use
of the land, in order to prevent ill planned urbanization in or
around the towns in the State of Haryana and the same inter
alia governs the grant of licence for colonizing upon terms set
out in the licence agreement, which is given in the statutory form
namely Form LC-IV. The relevant provisions of the Act are
G
quoted hereunder:-

"S.2. Definition. In this Act, unless the context otherwise
requires:

H .....................
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 563
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
(g) "external development works" include sewerage, A
, --c
drains, roads and electrical works which may have to
executed in the periphery of, or outside, a colony for the
joint benefit of two or more colonies:
, (i) "internal development works" mean -
•. B
metaling of roads and paving of footpaths;

- .!.· (ii) turfing and plantation with trees as open
spaces;

(iii) street lighting;
c
(iv) adequate and wholesome water-supply;

(v) sewers and drains both for storm and
sullage water and necessary provision for D
" their treatment and disposal; and

(vi) any other work that the Director may think
necessary in the interest of proper
development of a colony.
E
Section 3. Application for licence. (1) Any owner desiring
to convert his land into a colony, shall, unless exempted
under section 9, make an application, to the Director, for
~ -" the grant of a licence to develop a colony in the prescribed
form and pay for it such fee as may be prescribed. The F
application shall be accompanied by an income-tax
clearance certificate.

(2) ..........

(3) After the enquiry under sub-section (2), the Director by G
an order in writing, shall -
'""'-;
-.,( (a) grant, a licence in the prescribed form, after the
applicant has furnished to the Director a bank
guarantee equal to twenty five per centum of the H
564 SUPREME COURT REPORTS [2009] 1 S.C.R.

A estimated cost of development works as certified
by the Director and has undertaken--

(i) to enter into an agreement in the prescribed form
for carrying out and completion of development
works in accordance with the licence granted:
B
(ii) ....................... .

(111) .......................... .

(iv) to construct at his own cost, or get constructed
c by an other institution or individual at its cost,
schools, hospitals, community centres and other
community buildings on the lands set apart for this
purpose, or to transfer to the Government at any
time, if so desired by the Government, free of cost
D the land set apart for schools, hospitals, community ,
centres and community buildings, in which case the
Government shall be at liberty to transfer such land
to any person or institutions as it may deem fit;

E (b)

(4) The licence so granted sflall be valid for a period of
two years and will be renewable from to time for a period
of one year, on payment of prescribed fee.
~ '
F (5) A separate licence shall be required for each colony.

Section 5. Cost of Development Works - (1) The
colonizer shall deposit fifty per centum of the amount realised,
from time to time, by him, from the plot-holders within a period
G of ten days of its realisation in a separate account to be
maintained in a scheduled bank. This amount shall only be
utilized by him towards meeting the cost of internal development ~-

works in the colony. After the internal development works of the
colony have been completed to the satisfaction of the Director,
H the colonizer shall be at liberty to withdraw the balance amount.
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 565
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
- '-f
The remaining fifty per centum of the said amount shall be A
deemed to have been retained by the colonizer, inter-alia to
meet the cost of land and external development works.

(2) The colonizer shall maintain accounts of the amount
kept in the scheduled bank, in such manner as may be B

- ._
prescribed.

Sec. 8 Cancellation of license - (1) A license granted
under this Act, shall be liable to be cancelled by the Director if
the colonizer contravenes any of the conditions of the license
or the provisions of the Act or the rules made thereunder, c
provided that before such cancellation the colonizer shall be
given an opportunity of being heard.

(2) After cancellation of the licence, the Director may
himself, carry out or cause to be carried out, the D
development works in the colony and recover such charges
as the Director may have to incur on the said development
works from the colonizer and the plot-holders in the manner
prescribed as arrears of land revenue.
(3) The liability of the colonizer for payment of such charges E
shall not exceed the amount the colonizer has actually
recovered from the plot-holders less the amount actually
' .. ,,)( spent on such development works, and that of the plot-
holders shall not exceed the amount which he would have
to pay to the colonizer towards the expenses of the said F
development works under the terms of the agreement of
sale or transfer entered into between them;

Provided that the Director may, recover from the plot
holders with their consent, an amount in excess of what G
<w, may be admissible under the aforesaid terms of
agreement of sale or transfer.
(4) Notwithstanding anything contained in this Act, after the
colony has been fully developed under sub-section (2), the
Director may, with a view to enabling the colonizer, to H
566 SUPREME COURT REPORTS [2009] 1 S.C.R.
.,..
A transfer the possession of and the title to the land to the
plot-holders within a specified time, authorize the colonizer
by an order to receive the balance amount, if any, due from
the plot-holders, after adjustment of the amount which may
have been recovered by the Director towards the cost of
B the development works and also transfer the possession
of or the title to the land to the plot-holders within aforesaid
time. If the colonizer fails to do so, the Director shall on .,. '
behalf of the colonizer transfer the possession of and the
title to the land to the plot-holders on receipt of the amount
c which was due from them.

(5) After meeting the expenses on developments works
under sub-section (2), the balance amount shall be
payable to the colonizer."

D Some of the provisions of the Rules which require mention are
extracted herein below;

4. Percentage of area under of roads, open spaces etc.
in layout plans section ; 3(4) and 24 :- (1) In the layout
plan of a colony other than an industrial colony, the land
E
reserved for roads, open spaces, schools, public and
community buildings and other common uses shall not be
less than forty five percent of the gross area of the land
under the colony :
....
F Provided that the Director may reduce after
recording reasons therefor this percentage to a figure not
below thirty-five where in his opinion the planning
requirements and the size of the colony so justify.

G (2) In the layout plan of an industrial colony, the land
reserved for the purpose specified in sub- rule (1) shall not ~-

be less than thirty five percent of the gross area of the land
under the colony :

Provided that the Director may reduce after
H
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 567
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
~ -,
recording reasons therefor this percentage to a figure not A
below twenty wherein his opinion the planning
requirements and the size of the colony so justify.

5. Development works to be provided in colony; section
3(3) - The designs and specifications of the development
B

-- works to be provided in a colony shall include:-

(a) metaling of roads and paving of footpaths ;

(b) turfing and plantation with trees of open spaces ;

(c) street lighting ; c
(d) adequate and wholesome water supply ;

(e) sewers and drains both for storm and sullage water
v
and. necessary provision for their treatment and D
~
disposal ; and
(f) any other works that the Director may think
necessary in the interest of proper development of
the colony.
E
11. Conditions required to be fulfilled by applicant,
Section 3(3) - The applicant shall:-
", ...
(a) furnish to the Director a bank guarantee equal to twenty
five per cent of the estimated cost of the development work
F
as certified by the Director and enter into an agreement
in form LC-IV for carrying out and completion of
development works in accordance with the licence finally
~
granted;

......... (b) undertake to deposit fifty percent of the amount to be G
released by him from the plot holders, from time to time,
within ten days of its realisation in a separate account to
'
be maintained in a scheduled bank and this amount shall
only be utilized towards meeting the cost of internal
development works in the colony; H
568 SUPREME COURT REPORTS (2009) 1 S.C.R.

A (c) undertake to pay proportionate development charges ....-·-·-
if the main lines of roads, drainage, sewerage, water
supply and electricity are to be laid out and constructed
by the Government or any other local authority. The
proportion in which and time within which such payment
B is to be made shall be determined by the Director.

(d) undertake responsibility for the maintenance and
upkeep of all roads, open spaces, public parks and public ~ ...
health service for a period of five years from the date of
issue of the completion certificate under rule 16 unless
c earlier relieved of this responsibility and thereupon to
transfer for all such roads, open spaces, public marks and
public health service free of cost to the Government or the
local authority as the case may be;

D (e) undertake to construct at his own cost or get -I

constructed by any other institution or individual at its cost,
schools, hospitals, community centres .and other
community buildings on the land set apart for this purpose,
or undertake to transfer to the Government at any time if
E so desired by the Government free of cost, the land set
apart for schools, hospitals, community centres and
community buildings, in which case the Government shall
be at liberty to transfer such land to any person or institution
including a local authority on such terms and conditions as .. 'f

it may deem fit; and
F
(f) undertake to permit the Director or any other officer
authorized by him to inspect the execution of the layout and
the development works in the colony and to carry out all
directions issued by him for ensuring due compliance of
G the execution of the layout and development works in
accordance with the licence granted. µ·

(2) If the director, having regard to the amenities which
exist or are proposed to be provided in the locality, decides
that it is not necessary or possible to provide such amenity
H
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 569
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
---( or amenities, the applicant will be informed thereof and A
clauses (c), (d) and (e) of sub-rule (1) shall be deemed to
have been modified to that extent.

12. Grant of Licence. Section 3(3) and (4) - (1) After the
applicant has fulfilled all the conditions laid down in rule B
11 of the satisfaction of the Director, the Director shall grant
. .~
the licence in form LC-V .

(2) The licence granted under sub-rule (1) shall be valid
for a period of two years from the date of its grant during
which period all development works in the colony shall be c
completed and certificate of completion obtained from the
Director as provided in rule 16.

Rule 14 of the Rules empowers the Director to renew the
... licence for a period of one year provided he is satisfied that D
the delay in execution of the development works was for the
reasons beyond the control of the colonizer. Rule 18 on the other
hand provides that where the execution of the lay out plan and
construction of other work is not proceeded according to the
licence granted under Rule 12, or is below the specification or E
is in violation of the provisions of any law or the Rules, the
Director by a notice shall require the colonizer to remove various
defects within the period specified in the notice and if the
' ~· --'." colonizer fails to comply with the requirements, after hearing the
colonizer, the Director may either cancel the licence or grant
F
him further time for complying with the requirement.

6. Form LC-Ill which is part of the Rules is the proforma of
the letter to be written by the Director to the colonizer referring
to his application for the grant of licence to set up a colony. The
said proforma requires the Director to inform the colonizer that G
~~. it was proposed to grant the licence to him for setting up a
colony and that he should fulfil the conditions laid down in Rule
11. The said letter is to be sent by the Director in compliance
with the provisions of Rule 10. It is only after receipt of the
aforesaid letter that a colonizer enters into an agreement with H
570 SUPREME COURT REPORTS [2009) 1 S.C.R.

A the Director in Form LC-IV. The said Form LC-IV which is part
of the statutory rule 11 is the format of the agreement which the
owner of the land intending to set up a colony enters into with
the Director for and on behalf of the Government of Haryana.

7. A bare look of the said agreement which is a part of
8
the record would make it clear that many of the terms and
conditions of the agreement are extracts of the provisions of
the Act and the Rules. It is also provided in the said agreement
. ..
that colonizer would carry out all directions issued by the
C Director for due compliance of the execution of lay out and
development works in accordance with the licence granted.

8. It is also provided therein that without prejudice to
anything contained in the said agreement, all the provisions
contained in the Act and the Rules would be binding on the
D owner. In order to better appreciate the contention raised by
the parties, we have extracted the relevant provisions of the
Licence Agreement entered into between the appellant and
respondent No. 2, herein.

1. In consideration of the Director agreeing to grant licence
E
to the owner to set up the said colony on the land
mentioned in Annexure hereto on the fulfillment of all the
conditions laid down in Rule 11 by the Owner, the owner
hereby covenants as follows:
F (a) That the Owner 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 the
completion certificate under rule 16 of the Rules
G unless earlier relieved of this responsibility, when
the Owner shall transfer all such roads, open .,.
spaces, public parks and public health services
free of cost to the Government or the Local Authority
as the case may be.
H
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 571
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]

- --( (b) That the Owner shall construct at his own cost A
or get constructed by any other institution or
individual at its cost, schools, hospitals, community
centres and other community building on the land
set apart for this purpose or undertake to transfer
to the Government at any time, if so desired by the B
Government free of cost, the land set apart for
schools, hospitals, community centres and other
- + community buildings, in which case the Government
shall be at the liberty to transfer such land to any
person or institution including Local Authority on c
such terms and conditions as if may lay down.

(c) That the owner shall deposit fifty percent of the
amount realized by him from plot holders, from time
to time, in a separate account to be maintained in
a Scheduled Bank and that this amount shall only D
be utilized by the Owner towards meeting the cost
of internal development works in the colony.

(d) That the Owner shall permit the Director or other
Officer authorized by him in this behalf to inspect E
the execution of the layout and the development
works in the colony and the Colonizer shall carry out
all directions issued by him or ensuring due
~ .... compliance of the execution of the layout plans and
the development works in accordance with the F
licence granted.

(e) That the Owner shall pay proportionate
development charges as and when required and as
determined by the Director in respect of external
development charges. G

''" (f) That without prejudice of anything contained in
this agreement all the provisions contained in the
Act, and these rules shall be binding on the Owner.
H
572 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 2. Provided always and it is hereby agreed that if the r -
Owner commit any breach of the terms and conditions of
this agreement or violate any provisions of the Act or these
rules, then and in any such case, and notwithstanding the
waiver of any previous clause or right, the Director, may
B cancel the licence granted to him.

3. Upon cancellation of the licence under Clause 2 above
the Govt. may acquire the area of the aforesaid colony + '
under the Land Acquisition Act, 1894 and may develop the
said area under any other law. The Bank Guarantee in that
c events shall stand forfeited in favour of the Director.

4. The stamp and registration charges on this deed shall
be borne by the Owner.

D 5. The expression "the Owner" herein before used shall
include his heirs, legal representatives, successors and
permitted assigns.

The last clause (clause 6) provides tha\ on completion and
grant of the completion certificate, the Director may release the '
E bank guarantee on the application filed by the appellant
Company.

9. In the present case, the respondent No. 2 by letter dated
11.01.1988 informed the appellant Company that it was
F required to pay due amount of Rs. 3.72 lacs per gross acre on
account of external development charges. It was also
mentioned in the said letter that an amount of Rs. 3.72 lacs per
gross acre, in fact includes Rs. 61,000/- per gross acre on
account of internal community buildings for which no recovery
G should be made from the plot holders. It was also mentioned
in the said letter that credit would be given by Haryana Urban
Development Author[ty for the internal community buildings
already constructed by the colonizer namely the appellant.
Again under letter dated 07.10.1993, the appellant Company
was informed that before its licence could be considered for
H
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 573
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
-- ..,
renewal, the appellant Company was required to pay the A
aforementioned charges. Subsequently on 04.05.1994,
respondent No. 2 issued letter to the appellant informing that
the licence of the appellant would be renewed only after the
deposit of the aforesaid amount. Aggrieved by the aforesaid
letter, the appellant Company made several representations to B
respondent Nos. 1 and 2 contending inter alia that as per the
. +-
licence agreement and also as per the provisions of the Act
and the Rules the appellant Company was not liable to pay the
amount of Rs. 61,000/- per gross acre towards the construction
of internal community buildings. It was also submitted in the c
said representations by the appellant that the Director had
wrongly included the above said amount and the said demand
was not only unjust and arbitrary but also contrary to licence
agreement and also against the provisions of the Act and the
Rules framed thereunder. D
10. As its aforesaid representations did not bear any fruits,
the appellant Company filed a writ petition before the Punjab
and Haryana High Court challenging the demand letters dated
11.1.1988, 17.10.1993 and 4.5.1994 to the extent of demand
for Rs. 61,000/- per acre (and interest thereon) on account of E
internal community buildings, by including it in the external
development charges. The appellant also contended inter alia
" _,. that as per provisions, the licensee was required to construct
at his own cost either itself or through an institution or individual,
the schools, hospitals, community centres and other community F
buildings or to transfer to Government free of cost the land set
apart for sch.ools, hospitals, community centres and other
community buildings.

11. It was further submitted that in terms of the aforesaid G
provision, the appellant licensee was not required to pay for the
development of those buildings in case the land is transferred
to the Government free of cost. It was also pointed out by the
appellant that in fact such a demand made by the respondent
No. 2 is beyond the competence of the Government as any
H
574 SUPREME COURT REPORTS (2009] 1 S.C.R.

A payment made for such development would not only be against
the provision of the Act and the Rules framed thereunder but
would also be against the principles of unjust enrichment.

12. The Punjab and Haryana High Court considered the
8 aforesaid Writ Petition and thereafter by the impugned judgment
and order dated 29. 7.1999 rejected the contentions of the
appellant holding that the appellant had failed to develop the + ·
said buildings which it was obliged to do and thus the Director
was justified in demanding the said amount from the appellant
C Company which would be invested for the construction of these
buildings only. Aggrieved by the said judgment and order, the
present appeal is preferred by the appellant Company on
which we have heard the learned counsel appearing for the
parties.
"
D 13. The aforesaid contentions which were raised by the
appellant in the various representations submitted were
reiterated before us by Mr. Arun Jaitley, the learned senior
counsel appearing for the appellant. It was further submitted by
him that the Director, respondent No. 2 herein, while making
E the unlawful demand of Rs. 61,000/- per gross acre in the name
of construction of internal community buildings, had acted
arbitrarily, unfairly and unreasonably inasmuch as he had no
4
power or authority to include the cost of internal community ...
buildings in the external development charges.
F
14. Mr. Anoop G. Chaudhary, learned senior counsel
appearing for respondent No. 2, however, took up various pleas
in order to support the demand made by the respondent No.
2. It was submitted by him that the entire transaction and the
demand made is covered by the Act and the Rules framed
G thereunder. He submitted that the appeal is liable to be
dismissed as the writ petition itself was not maintainable,
inasmuch as, the contention of the appellant is that the
impugned demand made is outside the provisions of the Act
and the Rules and therefore the actual remedy that was
H available to the appellant to challenge said demand was by way
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 575
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
of filing a civil suit. A

He also submitted that the present writ which is filed by
the appellant is in the nature of claim for rendition of accounts
for which the writ is not a proper remedy. He submitted that on
both the aforesaid counts, the writ petition is required to be 8
dismissed. He also submitted that the demand made is within
the jurisdiction and parameters laid down in section 3(3)(a)(iv)
of the Act and therefore, the challenge made to the aforesaid
demand is unfair and unjustified.

He also advanced an alternative argument contending C
inter alia that if the aforesaid contentions are not accepted,
even in that event, the entire amount for which demand was
raised has since been paid by the appellant and therefore, the
principle of waiver and acquiescence will apply to the facts and
circumstances of the present case. D
15. So far the contentions with regard to the maintainability
of the writ petition is concerned, we are not impressed and
persuaded with the aforesaid contentions as according to the
respondent themselves, the aforesaid demand is being made E
within the parameter and ambit of the provision of section
3(3)(a)(iv). That being the position, the demand made
according to the respondent is a statutory demand and
therefore challenge to such a demand could always be raised
by the appellant by filing a writ petition as such a demand is F
sought to be protected and supported by way of statutory
provision.
16. Even if the appellant has taken up the plea that such a
demand is not supported by the statutory provisions and is in
fact in conflict with them, even then the issue pertains as to G
whether or not such a demand could be made and supported
by the said provisions, in which case, a writ petition is
competent and maintainable and the plea raised by the
respondent therefore with regard to the maintainability of the
petition is only to be rejected which we hereby do. H
576 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 17. Section 3(3)(a)(iv) of the Act is the relevant provision
and the merit of the claim and repudiation thereof is based on
the interpretation of the said provision. It was pointed out on
behalf of the appellant that 49 plots have been given by the
appellant developer to the Government as community sites.
B Section 5 of the Act enumerates that colonizer would deposit
50% of the amount realised from time to time by him from the
plot holders within the period of 10 days of its realization in a
separate account to be maintained in a scheduled bank. It is
also provided therein that the aforesaid 50% amount which is
c so deposited would only be utilized towards meeting the cost
of the internal development works in the colony. Further
stipulation in the said provision is that after the internal
development works of the colony have been completed to the
satisfaction of the Director, the colonizer would be at liberty to
withdraw the balance amount. The remaining 50% of the
0
amount would be deemed to have been retained by the
colonizer to meet the cost of the land and external development
works. Section 8 of the Act which is extracted herein above also
provides that the Director could cancel the licence given to the
developer colonizer if he contravenes any of the conditions of
E the licence or the provision of Act or the Rules made thereunder
and after the cancellation of the licence, the Director may
himself carry out or cause to be carried out the development
works in a colony and recover such other charges as the
Director may have to incur on the said development work from
F the colonizer and the plot holders.

18. Rules 4, 5 and 11 which are made part of the statutory
rules give effect to the aforesaid provision of Section 3(3). The
comparative reading of the provisions of Section 3(3)(a)(iv) and
G sub-clause (b) of clause (1) of the Licence Agreement would
clearly show that the licensee-colonizer is required to construct
at his own cost schools, hospitals, community centres and other
community buildings or may get the same constructed by any
other institution or individual. The developer also has the option
H to transfer to the Government at any time, if so desired by the
-.-- ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 577
H.\RYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]

·- '1 Government, free of cost the land set apart for schools, A
hospitals, community centres and community buildings in which
case the Government would be at liberty to transfer such land
to any person or institution including a local authority on such
terms and conditions as it may deem fit.
B
19. The said provision, therefore, gives three options for
construction of such community centres and facilities like
schools, hospitals, community centres and other community
buildings. Such centres and buildings could be constructed by
the developer himself or he may get the same constructed by
any other institution or individual whereby such individual would c
be able to utilize the said building. In case the developer fails
to exercise either of the aforesaid two options, a third option
is also open to the developer under which he would transfer the
said land, where the community facilities are to be established,
""· free of cost to the Government in which case such schools, D
hospitals, community centres and community buildings could be
constructed either by the Government itself or the said land
could be transferred by the Government to any person or
institution including a local authority on such terms and
conditions as the Government may deem fit. The aforesaid E
provision is clear and explicit and there is no ambiguity in it.
The only question therefore, which arises herein is, in a case
where the land is transferred to the Government free of cost
and when such schools, hospitals, community centres and
community buildings are to be constructed either by the F
Government or any agency appointed by the Government
whether the charges for internal community buildings is also
required to be paid by the developer.

20. It was submitted by the counsel appearing for
G
respondent No. 2 that the demand is made by the State
·~~- Government as external development charges although the
same is actually for making internal community buildings which
was in the interest of proper development of the said colony.
The High Court upheld the said contention on the ground that
H
[2009] 1 S.C.R.
...
578 SUPREME COURT REPORTS

A a colonizer is duty bound to complete the development works
in the colony within a specified period and that the idea behind
providing such a time limit was only to safeguard the interest
of various plot holders/residents of the colony so that they might
not be left at the lurch by the colonizer after selling plots to them.
B It was further held that since a complete control over the
activities of the colonizer is envisaged under the provisions of
the Act and the Rules, the action of the Director in calling upon
the appellant Company to pay charges for some of the internal
community buildings could not be termed as arbitrary.
c 21. The said findings arrived at by the learned Division
Bench of the High Court appears to be in direct conflict and
also in contradiction with the provisions of Sections 3(3)(a)(iv)
of the Act and also all the terms and conditions provided in sub-
clause (b) of clause (1) of the Licence Agreement. There is no
D mention at all of any requirement for the licensee to provide for
or to make payment for the cost of construction of internal
community buildings when the land is transferred to the
Government free of cost. No such statutory basis could be
shown either in the statute or in the licence agreement. When
E a specific question was put as to whether the amount was
demanded towards internal community buildings or external
development charges, the learned counsel, was constraint to
admit that although the said amount was being demanded
towards external development works but in fact the same was
F being demanded from the appellant towards internal community
buildings which were required to be constructed by the
appellant. There is no dispute with regard to the fact that the
developer of the colony, namely the present appellant has
carried out all the internal development works as required to
G be done which is statutorily provided for. A part of the
community centre has also been constructed by the developer
themselves but the entire community centre could not be
developed by it or through its agencies and therefore the land
allocated for the remaining community bu~dings/development
H have been transferred to the Government free of cost.
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 579
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
- '"'/
22. Since the land has been given free of cost, it is now A
- open for the State Government to get the remaining community
buildings constructed either by themselves or through any
agency or institution or individual at its cost in terms of the
provisions of the Act, in which case the terms and conditions
could be laid down by the Government for such community B

- ~
buildings, to be constructed on the land which is transferred to
it by the appellant free of cost. The Government cannot in law
demand that the buildings on the said lands which is to be
transferred to them free of cost should also be constructed by
the appellant and then transfer the land to them free of cost c
along with the construction thereon and on failure to construct
to pay for the cost of construction. That would in fact be a case
of an illegal and unauthorised demand as it has no statutory
mandate. The respondent cannot demand transfer of the land
_.,-
free of cost and also the construction cost of the facilities to
D
be provided in the said land.

23. When the provisions of Section 3(3)(a)(iv) are
analysed, it would be apparent that the word used in the said
provision is "land" and it has been specifically mentioned
therein that if the colonizer does not construct the community E
buildings and facilities on its own or through its agency ar

- ...
organization or individual, then the said licensee would be
required to transfer the said land set apart for the aforesaid
purpose free of cost to the Government.
F
24. The Government's claim is therefore restricted to lands
which the developer has failed to develop as community
centres. In other words only that land which the developer has
not been able to develop as community services facilities would
stand transferred to the Government free of cost and the said
-:.....~ land could be utilized by the Government for the aforesaid G
purpose either by itself or through its agency. If the legislature
had intended that the licensee is required to transfer the land
and also to construct the buildings on it or to make payment
for such construction, the legislature would have made specific
H
580 SUPREME COURT REPORTS [2009] 1 S.C.R.

y
A provisions laying down such conditions explicitly and in clear
words in which event the provisions would have been worded
in altogether different words and terms. It is well settled principle -
in law that the court cannot read anything into a statutory
provision which is plain and unambiguous. The language
B employed in a statute is determinative factor of legislative intent.
If the language of the enactment is clear and unambiguous, it
would not be proper for the courts to add any words thereto and ..
evolve some legislative intent, not found in the statute.

25. In Ganga Prasad Verma (Dr.) v. State of Bihar [1995
c Supp. (1) SCC 192], it has been held that where the language
of the Act is clear and explicit, the Court must give effect to it,
whatever may be the consequences, for in that case the words
of the statute speak the intention of the legislature.

D 26. Mr. Anoop G. Chaudhary, learned senior counsel
wanted us to read the provision of the Section 3(3)(a)(iv) of the
Act by adding a few words to it, for according to him the latter
part of the aforesaid section i.e. the obligation of the appellant
to transfer to the Government at any time free of cost the land,
E should be read by adding the provisions of the earlier part of
the section i.e. to construct at his own cost the community
centres and other community buildings on the lands set apart
for this purpose.

27. The aforesaid contention apparently arises out of the
.. -
F complete misreading of the aforesaid provision. The
responsibility regarding construction of community centres and
other community buildings could be discharged by adopting any
of the three options as mentioned hereinbefore and each one
of such options is an independent option and one cannot be
G connected and related with the other. We cannot read the
)I:-
provision relating to construction at the own cost of the
developer the schools, hospitals, community centres and other
community buildings on the land set apart for this purpose, into
an independent alternative provision relating to transfer of such
H land to the Government free of cost. The aforesaid option given
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 581
·)
~
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
..,, to the developer to construct the community centres and other A
community buildings at its own cost is when he can utilize
himself manage it. Therefore, we cannot read the aforesaid
provision in the manner sought to be read by Mr. Chaudhary,
for reading by adding certain words in the aforesaid manner
does not appear to be the intention of the legislak.Jre while B
enacting the aforesaid legislation, for otherwise the legislature
would have explicitly said so in the body of the main part of the
. ~
section itself.

28. Therefore, we not only reject the preliminary objections
raised by the respondent No. 2 in this matter, but we also reject c
his contention that the aforesaid demand of Rs. 61,000/- per
gross acre is permitted under the provision of Section 3(3)(a)(iv)
of the Act.

¥
29. We, therefore, now come to the last submission of the D
counsel appearing for respondent No. 2 which relates to issue
of waiver and acquiescence in view of the fact that payment
was made by the appellant which was demanded from him
under the aforesaid letters.
E
30. The correspondences between the parties in respect
of payment of the aforesaid demand would clearly establish that
respondent No. 2 made a demand for the payment of the
-- __..
aforesaid amount of Rs. 61,000/- per gross acre failing which
a threat was issued that the licence which was issued to it would
stand cancelled. It is also pointed out on behalf of the F
respondent No. 2 that subsequently the respondent No. 2 has
made it a policy of including expressly the value of the
community buildings in the internal development works and
ensuring that one fourth of the total cost of the internal
development work could be secured by a bank guarantee. It is G
~...>(. needless to say that if the provision would have been the same
at the relevant time, in that event the situation would have been
different but no such provision either in the Act or in the Rules
or in any policy framed by the Government could be brought to
our attention. Therefore, what we were required to consider was H
582 SUPREME COURT REPORTS [2009) 1 S.C.R.
"
A only the explicit provision of Section 3(3)(a)(iv) of the Act and 'r
the rules framed thereunder, which are extracted herein before
in terms of which we find no obligation on the part of the .
appellant to pay for the construction of internal community
buildings which was being demanded by the appellant as
B external development charges. Charges for construction of
internal community buildings can never be equated with the
external development charges, so the demand itself was illegal.
The view taken by us also derive support from the judgment of ...
this Court in DLF Qutab Enclave Complex Educational
c Charitable Trust v. State of Haryana, [(2003) 5 SCC 622)
wherein it was held that construction of schools, hospitals and
community centres and other community buildings does not
come within the purview of the term "development works" as
the same come within the purview of the term "amenities". The
Court in Para 33 held as under:
D )'

"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
E 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 whereafter, the ..
F same is required to be handed over to the Government or
the local authority as the case ri1ay be, free of cost."

31. Since the respondent No. 2 sought to justify the
demand made on the ground that such demand is justified as
internal community building, we have no other option but to hold
G
that such demand could not have been made even as internal
community buildings for no such power and jurisdiction was )IL.~

vested in the Government to make such a demand for the
simple reason that there was neither any statutory support nor
any policy decision in support of the same. Even in the Licence
H
ANSAL PROPERTIES & INDUSTRIES LTD. v. STATE OF 583
HARYANA & ANR. [DR. MUKUNDAKAM SHARMA, J.]
... . -,'
Agreement, nothing was contemplated to the effect that in A
addition to the liability to transfer the land set apart for the said
buildings to the Government free of cost, on the contingency
mentioned in the statue and relied in the Licence Agreement,
the licensee is also required to pay for the construction of said
buildings. B
32. So far the issue with regard to the waiver and
~
acquiescence is concerned, we find that such contention that
the principles of waiver and acquiescence is attracted to the
facts of the case is also not tenable. In the letter dated
08.02.1988 which was written by the appellant in response to c
the letter of respondent No. 2 dated 11.01.1988 on the subject
of payment of external development charges, it was clearly
stated that the revised rates which is since determined by the
.,. Director in their communication dated 18.9.1987 and its further
revision are not covered by the clause of the agreements being D
referred in the recent communications. In paragraph 2 of the
said letter it was specifically stated that the respondent No. 2
had included an amount of Rs. 61,QOO/- per gross acre on
account of community buildings in the external development
charges, which is not payable, as according to the requirements E
of the Act and licence the appellant was required to pay
external development charges only and there was no mention
of charges towards construction of internal community buildings
~
in case the land set apart for the said purpose is transferred
to the Government free of cost. Therefore there was a protest F
,d demur on the part of the petitioner against the aforesaid
demand.

33. In the case of Municipal Corpn. of Greater Bombay
v. Hakimwadi Tenants' Assn., [1988 Supp SCC 55], it was held
-.__.., by this Court that in order to constitute waiver, there must be G
voluntary and intentional relinquishment of a right. The essence
of a waiver is an estoppal and where there is no estoppel, there
is no waiver. Estoppel and waiver are questions of conduct and
must necessarily be determined on the facts of each case.
H
584 SUPREME COURT REPORTS [2009] 1 S.C.R.

A 34. It is thus established that the appellant on receipt of r·
the demand issued by respondent No. 2 raised this objection
regarding the charge and the demand made and the payment
which was made by the appellant was due to the threat issued
by respondent No. 2 that on failure of the appellant to pay the
8 same its licence would stand cancelled. Such demand •.vas
made by the appellant under protest as aforesaid. Therefore,
the principle of waiver and acquiescence will have no
application in the present case and therefore we reject the said
contention of the learned counsel appearing for respondent No.
2.
c
35. The appeal, therefore, stands allowed and we hold that
respondent No. 2 was not authorized or justified in raising the
aforesaid demand of Rs. 61,000/- per gross acre. Whatever
payment is made in respect of the aforesaid demand was not
D payable by the appellant to the respondent No. 2 as the said
demand is held to be illegal, unjustified and unreasonable. The
counsel for the appellant during the course of his arguments
however submitted that the said amount now payable by the
respondent No. 2 be adjusted towards the dues of the appellant.
E Accordingly we direct such adjustment of the amount in
accordance with law.

36. We accordingly, dispose of this appeal in the light of
the aforesaid directions and observations. ..
F D.G. Appeal allowed.

..
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