UTPE No. 112 of 1998. Case: Heritage City Resident Welfare Association and Ors. Vs Unitech Ltd. and Ors.. COMPAT (Competition Appellate Tribunal)
| Case Number | UTPE No. 112 of 1998 |
| Counsel | For Appellant: C.M. Lall and Vedanta Varma, Advocates and For Respondents: H.S. Chandoke, Deeksha Manchanda and Arjun Nihal Singh, Advocates |
| Judges | G.S. Singhvi, J. (Chairman) and Rajeev Kher, Member |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXIII Rules 1, 1(3); Section 11; Competition Act, 2002 - Section 66, 66(4); Constitution Of India - Articles 136, 21, 226, 227, 32; Consumer Protection Act, 1986 - Section 2(d); Delhi Rent Control Act, 1958 - Section 45; Haryana Apartment Ownership Act, 1983 - Sections 11, 11, 12, 13, 11(2), 12, 14, 2... |
| Judgement Date | July 20, 2016 |
| Court | COMPAT (Competition Appellate Tribunal) |
Order:
G.S. Singhvi, J. (Chairman)
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Whether the alleged failure of Respondent No. 1- Unitech Limited to execute Sale Deeds in favour of those who booked the apartments/flats in the Group Housing Project named as Heritage City in accordance with the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short, 'the Development Act') and the Haryana Apartment Owners Act, 1983 (for short, 'the Apartment Act') and also provide amenities and facilities to the apartment owners in accordance with the brochure and the advertisements issued by it amounts to unfair trade practice is one of the questions which arises for consideration in this complaint filed by Heritage City Resident Welfare Association and four others. Two other questions which would require determination by the Tribunal are whether Respondent No. 2 has connived and colluded with Respondent No. 1 and delayed the implementation of the Apartments Act and whether the complaint is liable to be dismissed on the grounds set out in the replies filed by Respondent Nos. 1 and 2.
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Background Facts
"(i) New Delhi Hotels Limited (hereinafter described as, 'the Owner'), which owned 23.8375 acres land in Village Sirhaul near DLF Qutab Enclave, Phase-III, Mehrauli-Gurgaon Road applied for and was granted two licences by the Director, Town and Country Planning, Haryana (DTCP) being Licence No. 13 of 1982 dated 23.08.1982 (in respect of 19.77 acres land) and Licence No. 88 of 1984 dated 27.04.1984 (in respect of 4.06 acres land) under the Development Act for developing a Group Housing Project. After two years and three months of the grant of second licence, the DTCP issued show-cause notices dated 31.07.1986 proposing cancellation of the licences apparently because the Owner did not take steps for execution of the project. However, before any decision could be taken in the matter, the Owner executed an agreement dated 04.06.1990 with Respondent No. 1 for the construction of the Group Housing Project. The preamble and the salient features of that agreement are extracted below:
"AGREEMENT
THIS AGREEMENT is executed on this 4th day of June, 1990 at New Delhi, between New Delhi Hotels Limited, Company registered under the Companies Act, 1956, and having its Registered Office at Hotel Ambassador, Sujan Singh Park, New Delhi 110003, through its Directors, Shri Ram Pershad, hereinafter called the FIRST PARTY of the FIRST PART.
AND
Unitech Limited, a Public Limited Company registered under the Companies Act, 1956, having its Registered Office at 6, Community Centre, Saket, New Delhi 110017, through its Director, Dr. G.R. Bahri, hereinafter called the SECOND PARTY of the SECOND PART.
THE EXPRESSIONS, First Party and the Second Party mentioned hereinabove, unless excluded by and/or repugnant to the context, be deemed to mean and include their representatives, successors, heirs, administrators and assigns.
WHEREAS, the First Party represented itself as the exclusive Owner and in possession of the freehold land, the details of which are given in the Schedule attached (Annexure-I), in Sirhaul Village, near DLF Qutab Enclave, Phase III, Mehrauli-Gurgaon Road (Gurgaon) total comprising of about 24 acres, the said total land hereinafter called the "Project Property".
WHEREAS, the First Party represents and mentions that they have been granted two Licences by the Director, Town & Country Planning, Haryana, Chandigarh, vide Licence No. 13 of 1982 dated 23rd August, 1982 and No. 88 of 1984 dated 27th April, 1984 to undertake to develop the Group Housing Project on the said Project Property.
WHEREAS, the Second Party is fully aware that the Director, Town & Country Planning, Haryana, Chandigarh issued Show Cause Notices on 31st July, 1986 against the aforesaid Licences.
WHEREAS, the Second Party undertakes and accepts that they will take up the matter on behalf of the First Party with the Director, Town & Country Planning, Haryana, Chandigarh, for withdrawal of the said Show Cause Notices.
WHEREAS, the Second Party has assured and has undertaken that the withdrawal of these Show Cause Notices and renewal of the Licences will be entirely their responsibility.
WHEREAS, the First Party has mentioned that the detailed drawings for the development of the Group Housing Project were submitted to the Director, Town & Country Planning, Chandigarh and were approved on 17th January, 1986 and the First Party has further represented that it had applied for the revalidation of the same. However, the Second Party undertakes that the entire responsibility to get the Plans prepared, if required, and to re-submit to the Director, Town & Country Planning, Haryana, Chandigarh and undertakes to get them sanctioned on behalf of the First Party.
WHEREAS, the First Party represents and declares that the Property comprising the Project Property is free from all encumbrances and have not created any charge or mortgage on the same or in part thereof and the same are not subject to any lien, lis pendens or attachment, and has a marketable titles, except hypothecation of the Sales Deeds with the Hongkong Bank which the First Party undertakes to get released immediately after signing of this Agreement.
AND WHEREAS, the First Party represents and declares that No Notice of acquisition from Union or State Government or any other Body or Authority in respect of the aforesaid Project Property or any portion thereof has been received or served upon the First Party or any person interested in the same upto the date of signing of this Agreement.
WHEREAS, the Second Party approached the First Party and assured them that the total Project cost, including the cost of meeting all formalities mentioned hereinbefore and for the completion and development of the entire Project will be paid by the Second Party. It shall also include costs associated with procuring all amenities including the water supply, sanitation and plumbing work. In addition to the above Clauses of this Agreement, the parties to this Agreement, agree to the following terms and conditions:--
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and 2 *** *** ***
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That in consideration of the Second Party agreeing to construct the said Group Housing Project on the said Project Property on behalf of the First Party, the parties herein agree that the Second Party shall deliver to the First Party the complete built up saleable super area of two lakh square feet excluding the weaker section area in the said Project as the First Party's share as their contribution of the land in the said Project and the balance saleable area available shall be the share of the Second Party and the Second Party shall be entitled to sell, assign, lease, transfer or dispose of the same in any manner, whatsoever. The same will apply to the First Party. The Parties further agree that the said saleable super area shall be determined and divided as per the mutual agreement and proportionately spread all over the total saleable area or in separate independent blocks, excluding the area reserved for allotment to the economically weaker sections or for any other requirements, to be constructed, by order of the authorities concerned as per their bye-laws. To obtain the Completion Certificates for the entire Project will be the responsibility of the Second Party.
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That the Second Party agrees to abide by all the rules and regulations of the Director, Town & Country Planning, Haryana, Chandigarh for the development and construction of the Group Housing Project and/or any other orders or instructions issued for the renewal of the Licences. The Second Party also agrees to build and construct flats at their cost for the economically weaker sections as per the stipulations of the Haryana Government for the entire area in this regard. However, the Second Party shall have the right to dispose of such flats of weaker sections as per requirements of the Haryana Government and further all sale proceeds received on account of the sale of such flats shall be kept by the Second Party.
[Emphasis supplied]
(ii) The Owner also executed an agreement dated 29.11.1990 with the DTCP as per the requirement of Rule 11 of the Haryana Development and Regulation of Urban Areas Rules, 1975. The relevant portions of that agreement are extracted below:
"NOW THIS DEED WITNESSETH AS FOLLOWS:--
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In consideration of the Director agreeing to grant Licence to the Owner to set up the said Group Housing Colony on the land mentioned in Annexure hereto on the fulfilment of all the conditions laid down in Rule 11 by the Owner, the Owner hereby covenants as follows:
(
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That the Owner shall ensure the minimum density of population provided in the Scheme shall be 100 PPA and the maximum density shall be 250 PPA unless specifically so provided in the Zoning Plan.
However, in case of density above 200 PPA the external development charges would have further additional premium @ 10% per additional 50 PPA for calculating the density, the occupancy per main dwelling unit shall be taken as five persons and for service dwelling units it shall be two persons per room, one person per 80 sq. ft. of living area whichever is more.
(b) That the ground/site coverage of residential blocks including covered parking and service dwelling units shall not exceed 25% of the area of site of the scheme, except in case of "ramps" provided as additional facility, when the total site coverage would be 26% instead of 25%.
(However, the above shall not include community building, like schools, dispensary etc. which shall be according to the prescribed norms and the buildings plan of which shall be got approved separately.)
(c) *** *** ***
(d) That adequate accommodation shall be provided for domestic servants and other service population of EWS and the number of such dwelling Units shall not be less than 10% of the number of main dwelling units, and the area of such a unit shall not be less than 140 sq. ft. which will cater to the minimum size of the room...
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