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2015 Supreme(P&H) 216
PUNJAB & HARYANA HIGH COURT
HEMENT GUPTA & HARI PAL VERMA, JJ.
Municipal Corporation, Amritsar and Another – Appellants
Vs.
Alpha G. Corp. Development Private Limited and Others – Respondents
L.P.A. No. 630 of 2010
Decided On : 28.1.2015
The main legal point established in the judgment is that statutory provisions, such as Section 273 of the Act, cannot be superseded by executive policies like the Industrial Policy-2003. Additionally, the decision of the State Government on the levy of change of land use fee is binding on the parties involved.
Headnote:
Change of Land Use - Industrial Policy-2003, Section 273 of the Punjab Municipal Corporation Act, 1976 - 10.4.2, 10.5, 273
Fact of the Case:
The writ petitioner, a Private Limited Company, entered into a Joint Venture Agreement with land-owners for development of land. The Empowered Committee approved the proposal for Housing and Multiplex Projects. The Municipal Corporation sought clarification on change of land use fee, which was challenged by the writ petitioner.
Finding of the Court:
The court found that the order of the learned single Judge proceeded on a wrong assumption of law and facts. It held that Section 273 of the Act mandates permission for change of land use, and the Industrial Policy cannot supersede statutory provisions. The court also noted that the writ petitioner is bound by the decision of the State Government on the levy of change of land use fee.
Issues: The main issue was whether the writ petitioner was liable to pay change of land use fee under Section 273 of the Act and the Industrial Policy-2003.
Ratio Decidendi: The court held that the statutory restriction under Section 273 of the Act cannot be nullified by the Industrial Policy. It also emphasized that the writ petitioner is bound by the decision of the State Government on the levy of change of land use fee.
Final Decision: The court allowed the appeal, dismissed the writ petition, and directed the writ petitioner to pay the change of land use fee within a month.
HEMENT GUPTA, J.
1. The present letters patent appeal under Clause X of the Letters Patent is directed against an order passed by the learned single Bench of this Court on 03.03.2010, whereby the writ petition filed by M/s. Alpha G. Corp. Development Private Limited-respondent No. 1 herein was allowed and the levy of change of land use fee was found to be illegal and the amount deposited by respondent No. 1 (hereinafter to be referred as the writ petitioner) was ordered to be refunded along with simple interest at the rate of 9% from the date of collection till the date of payment.
2. The facts in brief are that the writ petitioner, a Private Limited Company being Professional Real Estate Developers, entered into Joint Venture Agreement with certain land-owners for development of about 27 acres of land owned by them in two phases. The writ petitioner submitted its Expression of Interest for Development of Mega Projects and clearance of the same by the Empowered Committee on Mega Projects of Investments of over of Rs. 100 crores under the Mega Projects Policy announced by the Government of Punjab. The proposal of the writ petitioner for Housing Projects and Multiplex Projects was accepted by the Empowered Committee constituted under the Industrial Policy-2003 vide communication dated 21.12.2005 (Annexure P-3). The relevant conditions for approval are as under:-
(A) CONCESSIONS GRANTED TO MULTIPLEX PROJECTS
xxx xxx xxx
(f) Conversion of land use from agriculture to proposed use in principle on payment of conversion charges and in accordance with the Periphery Policy, which is under finalization for projects located in periphery area.
xxx xxx xxx
(B) CONCESSIONS TO HOTEL PROJECT
xxx xxx xxx
(iv) Conversion of land use from agriculture to proposed use in principle on payment of conversion charges and in accordance with Periphery Policy approved by the Council of Ministers.
3. It was on 11.07.2006 (Annexure P-6), the building plan submitted by the petitioner was recommended by the Chief Town Planner, Punjab to the Commissioner, Municipal Corporation for sanction. It was communicated that since the project has been approved by the Empowered Committee as per the Government decision, the building plan has to be approved at the earliest and if any approval is required, ex post facto approval of the same be taken from the Government. It is, thereafter, on 01.08.2006 (Annexure P-7), the building plan submitted by the writ petitioner was approved.
4. At this stage, we may notice that on 26.03.2003, the Government of Punjab, Department of Industry & Commerce, published a notification formulating Industrial Policy-2003 to facilitate the development of industry in the State of Punjab. The conditions regarding Change of Land use and development of integrated Multiplex Complexes are contained in Clause 10.4.2 and Clause 10.5 respectively of Chapter 10 of such Policy. The relevant Clause 10.4.2 reads as under:
"10.4.2 Change of Land use
Change of land use will not be required anywhere in the State except in the areas falling within the municipal limits, Chandigarh Capital Periphery or planning or controlled areas and along the notified schedule roads and bye passes. However, in the case of industries being set up in the areas other than specified above, intimation by the Industries Department about the location of the proposed unit shall be sent to Chief Town Planner, Punjab, Department of Housing & Urban Development, so as to keep the data bank regarding land use updated.
(Instructions Regarding Change of Land Use issued by Department of Housing & Urban Development)"
5. In pursuance of Industrial Policy 2003, another notification dated 08.09.2003 (Annexure P-4) to implement the scheme of Development of Multiplex Complexes was issued. The relevant extract from the notification dated 08.09.2003 reads as under:
"1. Definition
Multiplex complex shall mean an integrated entertainment and shopping centre/complex having at least three cinema halls with tot
