STATE OF GUJARAT Vs. RELIANCE INDUSTRIES LTD

JUDGEMENT

(1.) As in both the appeals, the common judgment of the learned Single Judge arises for consideration with the common questions involved therein, they are being considered simultaneously.

(2.) The present appeals are directed against the judgment and order passed by the learned Single Judge in Special Civil Application No.9722 of 1993 with Special Civil Application No.9626 of 1993 whereby the learned Single Judge has declared the action of the authority as well as that of the State Government for imposition of the scrutiny fee, development fee and levy of premium as illegal and void. Learned Single Judge has also allowed the petitioners to get back the refund of the amount of Rs.1 crore and Rs.4 lacs which was deposited pending the petitions pursuant to the interim order passed in the petitions.

(3.) The short facts of the appeals are that on 17.10.1985, the State Government in exercise of the powers under the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred as the Act ) by issuing the notification constituted the Hajira Area Development Authority (hereinafter referred as the HADA for short) for securing the plan development of the area of various villagesi.e. Damka, Bhatlai, Vasuva, Rajagari, Mora, Limla, Suvali and Hajira, all of Taluka Choryasi, District Surat. It appears that thereafter from the years 1986 to 1990 various parcels of lands and total about 285 hectors of lands were allotted to the original petitioners or its subsidiary company or sister concern for petrochemical complex. The original petitioners thereafter wanted to make construction over the lands which were allotted to it and, therefore, the plans were prepared and they were sent by the original petitioners to the HADA for grant of approval and necessary permission. However, on 28.3.1989, the HADA informed to the original petitioners that since the Draft Development Plan is under contemplation and was not published by the competent authority, the question of grant of permission would not arise. It is the say of the original petitioners that, thereafter, they moved to the Gram Panchayat, Mora, Taluka Choryasi for granting construction of the boundary wall which was so granted by the Sarpanch of the Gram Panchayat on 12.5.1989. On 21.8.1989, the HADA in exercise of the powers under sections 9 and 13 of the Act published the Draft Development Plan and the General Development Control Regulations containing various provisions including (1) scrutiny fee, (2) scrutiny deposit and (3) premium. On 29.9.1989, pursuant to the meeting held by the HADA on 18.9.1989 separate notification was published in exercise of the powers under section 99 of the Act whereby it was proposed to levy and impose development charges. On 1.10.1989, an advertisement was published in the newspaper inviting objections to levy and imposition of development charges as proposed by the HADA. On 16.10.1989, the HADA had issued the circular to all the industries including the original petitioning company informing that it is obligatory to obtain development permission before starting of construction without which development would be treated as illegal. On 21.12.1989, the HADA called the Chief Executive Officer of the respondent company and instructed him to stop construction work of Phase-I of their project and asked him to remain present in his office at 1.1.1990. On 4.1.1990, the HADA once again instructed the original petitioning company to stop construction activity and to remain present on 15.1.1990. On 11.1.1990, the respondent company submitted reply along with the complete list of their construction activity and the plan of Phase-I to HADA. On 15.2.1990, the HADA informed the respondent company to submit the plan in the prescribed proforma along with scrutiny fee. On 25.4.1991, the HADA submitted the proposal for development charges to the State Government for approval. On 23.8.1991, the HADA in exercise of the powers conferred under section 29(5) read with section 36 of the Act issued the notice calling upon the original petitioning company to show cause as to why illegal construction should not be removed. On 21.12.1991, the State Government granted approval to the aforesaid proposal submitted by the HADA for development charges as well as for imposition of the fee prescribed. On 8.1.1992, the HADA issued another notice calling upon the original petitioning company to remain present and to submit the reply. On 31.1.1992, the HADA in its board meeting held on 31.1.1992 passed resolution No.196 for recovery of the development charges as approved by the Government. On 4.2.1992, the notification for levy of the development charges was published in the government gazette. On 1.7.1992, the HADA issued demand notice upon the original petitioning company demanding a sum of Rs.8.19 crores comprising Rs.4,77,77,521/- by way of security deposit, scrutiny fee and premium and Rs.3,38,12,460/- towards development charges. On 17.7.1992, the HADA issued another notice reiterating its above referred demand. However, as the amount was not paid, on 25.2.1993 / 9.3.1993 the HADA issued the final notice under section 36 of the Act calling upon the original petitioning company not to proceed with construction without permission. Under the circumstances, the original petitioning company preferred two petitions one being Special Civil Application No.9626 of 1993 for challenging the notification dated 29.9.1989 issued under section 99 of the Act for imposition of development fee at the rate specified in the said notification and approval thereof granted by the State Government and another being Special Civil Application No.9722 of 1993 challenging Regulation No.3.3 regarding scrutiny fee, Regulation No.5.3 regarding scrutiny deposit and Regulation No.5.8 regarding premium etc.