Civil Appeal No. 550 of 2003, Civil Appeal No. 551 of 2003, Civil Appeal No. 1611 Of 2003 and Contempt Petition(C) No. 215/2005 In Civil Appeal No.550/2003 And Contempt Petition (C)No.106/2006 In Civil Appeal No.550/2003. Case: 1. DLF Universal Ltd. & Anr., 2. M/S. Ansal Properties & Industries Ltd., 3. M/S.Ajay Enterprises Ltd. & Ors. Vs 1. Director, T.&C. Planning Haryana & Ors., 2. State of Haryana & Ors.. Supreme Court
|Case Number:||Civil Appeal No. 550 of 2003, Civil Appeal No. 551 of 2003, Civil Appeal No. 1611 Of 2003 and Contempt Petition(C) No. 215/2005 In Civil Appeal No.550/2003 And Contempt Petition (C)No.106/2006 In Civil Appeal No.550/2003|
|Party Name:||1. DLF Universal Ltd. & Anr., 2. M/S. Ansal Properties & Industries Ltd., 3. M/S.Ajay Enterprises Ltd. & Ors. Vs 1. Director, T.&C. Planning Haryana & Ors., 2. State of Haryana & Ors.|
|Judges:||B.Sudershan Reddy and Surinder Singh Nijjar, JJ.|
|Issue:||Registration Act - Section 17 (1)(b)|
|Citation:||AIR 2011 SC 1463|
|Judgement Date:||November 19, 2010|
B.Sudershan Reddy, J.
These appeals are directed against the orders of Punjaband Haryana High Court dismissing the Writ Petitions filed by the appellants herein challenging the impugned order dated 05.05.1999 passed by the Director, Town and Country Planning, Chandigarh, Haryana. The High Court upheld the validity of the impugned memo and accordingly dismissed the Writ Petitions. The same is challenged in these appeals on various grounds.
We have heard the learned senior counsel Shri HarishSalve, Shri S. Ganesh, Shri Harish Malhotra and the learned counsel Shri Rajiv Vermani for the appellants and Shri U.U. Lalit, learned senior counsel for the respondents. We have also heard the learned counsel appearing on behalf of theinterveners-applicants.
The central question that arises for our consideration in this group of appeals is whether the Director, Town and Country Planning, is empowered to pass the impugned order? Whether the impugned order is ultra vires?
By the impugned memo the Director had purported to give the following directions:
a. the provision in the agreement between the appellant and the plot/flat buyers regarding extension fee and maintenance fee should be deleted from the agreement as the same is not permissible under the law;
b.further directed to stop charging of extension fee and maintenance fee from the plot/flat holders henceforth and the charges recovered on account of both from the plot/flat holders "may be refunded to the Government immediately."
c. stop allowing the transfer of plots after obtaining full payment for the same and to ensure immediate registration of Conveyance Deed "where the full payments of the plot/flats have been received."
In order to consider the question as to the validity of the impugned memo few relevant facts may have to be noticed.
The appellants were granted licence under the provisions of Haryana Development and Regulation of Urban Areas Act,1975 (for short `the Act') and the Rules framed there under,i.e. Haryana Development and Regulation of Urban Area Rules, 1976 (for short `the Rules') for setting up residential colonies. The appellants entered into required agreements with the Governor of Haryana acting through Director Town and Country Planning, Haryana. The appellants acting under the licence so granted and the agreements commenced setting up colonies by dividing the land into plots. The plots were sold to various buyers. The plot buyers are required to make construction on such plots to be used for the purpose for which the lay out was approved. The appellants have also allotted flats to various persons and have entered into agreements. Mutual rights and obligations between the appellants and the plot/flat buyers is structured by the agreements voluntarily entered into by them and all terms and conditions, covenants were mutually agreed by and between the parties. In respect of certain areas even completion certificates were granted as early as in the year1991-92. The Director all of a sudden without any notice whatsoever to any of the appellants issued the impugned directions which were challenged on various grounds in the High Court.
In order to consider the central question as to whether the impugned order is void and unenforceable, it is just and necessary to notice the relevant provisions of the Act. SCHEME OF THE ACT:
The Act intends to regulate the use of land in order to prevent ill planned and haphazard urbanization in or around towns in the State of Haryana. The Act applies to all urban areas in the State of Haryana. We shall notice the relevant provisions of the Act and the Rules which are as under:
" Section 2. Definitions
(c) "colony" means an area of land divided or proposed to be divided into plots or flats for residential, commercial, industrial, cyber city or cyber park purposes or for the construction of flats in the form of group housing or for the construction of integrated commercial complexes, but an area of land divided or proposed to be divided--
i. for the purpose of agriculture; or
ii. as a result of family partition, inheritance, succession or partition of joint holding not with the motive of earning profit; or
iii. in furtherance of any scheme sanction under any other law; or
iv. by the owner of a factory for setting up of a housing colony for the labourers or the employees working in the factory; provided there is no profit motive; or
v. when it does not exceed one thousand square metres or such less area as may be decided from time to time in an urban area to be notified by Government for the purposes of this sub-clause. shall not be a colony,
(d) "colonizer" means an individual, company or association or body of individuals, whether incorporated or not, owning land for converting it into a colony and to whom a licence has been granted under this Act;
(dd) "cyber city" means self contained intelligent city with high quality of infrastructure, attractive surrounding and high speed communication access to be developed for nucleating the Information Technology concept germination of medium and large software companies and Information Technology enabled services, wherein no manufacturing units shall be permitted;
(ddd) "cyber park" means an area developed exclusively for locating software development activities and Information Technology Enabled Services, wherein no manufacturing of any kind (including assembling activities) shall be permitted;
(e) "development works" means internal and external development works;
(g) "external development works" include water supply, sewerage, drains, necessary provisions of treatment and disposal of sewage, sullage and storm water, roads, electrical works, solid waste management and disposal, slaughter houses, colleges, hospitals, stadium/sports complex, fire stations, grid sub- stations etc. and any other work which the Director may specify to be executed in the periphery of or outside colony/area for the benefit of the colony/area;
(gg) "flat" means a part of any property, intended to be used for residential purposes, including one or more rooms with enclosed spaces located on one or more floors, with direct exit to a public street or road or to a common area leading to such streets or road and includes any garage or room whether or not adjacent to the building in which such flat is located provided by the coloniser/owner of such property for use by the owner of such flat for parking any vehicle or for residence of any person employed in such flat, as the case may be;
(i) "internal development works" mean--
(i) metalling of roads and paving of footpaths; (ii) turfing and plantation with trees of open spaces; (iii) street lighting; (iv) adequate and wholesome water-supply; (v) sewers and drains both for storm and sullage water and necessary provision for their treatment and disposal; and (vi) any other work that the Director may think necessary in the interest of proper development of a colony;
(k) "owner" includes a person in whose favour a lease of land in an urban area for a period of not less than ninety nine years has been granted;
(m) "plot/flat holder" means a person in whose favour a plot/flat in a colony has been transferred or agreed to be transferred by the coloniser;
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 from and pay for it such fee and conversion charges as may be prescribed. The application shall be accompanied by an income- tax clearance certificate:
Provided that if the conversion charges have already been paid under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (41 of 1963), no such charges shall be payable under this section.]
(2) On receipt of the application under sub-section (1), the Director shall, among other things, enquire into the following matters, namely:-- (a) title to the land; (b) extent and situation of the land; (c) capacity to develop a colony; (d) the layout of a colony; (e) plan regarding the development works to be executed in a colony; and (f) conformity of the development schemes of the colony land to those of the neighbouring areas
(3) After the enquiry under sub-section (2), the Director, by 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 estimated cost of development works in case of area of land divided or proposed to be divided into plots or flats for residential, commercial or industrial purposes and a bank guarantee equal to thirty- seven and a half per centum of the estimated cost of development works in case of cyber city or cyber park purposes 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;
(ii) to pay proportionate development charges in the external development works as defined in clause(g) of section 2 are to be carried out by the government or any other local authority. The proportion in which and the time within which, such payment is to be made shall be determined by the Director;
(iii) the responsibility 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 unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, public parks and public health services...
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