IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.960 of 2000
Date of decision:9.9.2009
Cap.(Retd.) Manmohan Lowe and others
-----Petitioners
Vs.
State of Haryana and others
----Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Ms. Madhu Tewatia, Advocate with
Ms. Aeshna Singh and Ms. Sidhi Arora, Advocates for the
petitioners.
Mr. Rameshwar Malik, Addl.A.G.Haryana for the State.
Mr. AK Chopra, Sr.Advocate with
Mr. Ashish Chopra, Ms. Rupa Pathania and Mr. Vikram
Anand, Advocates for respondent No.3.
Mr. Ashok Aggarwal, Sr.Advocate with
Mr. JS Sidhu, Advocate for respondent No.4.
Adarsh Kumar Goel,J.
1. This writ petition has been filed by the
petitioners, who are apartment owners of Silver Oaks
Apartments, DLF Qutab Enclave Phase I, Gurgaon
CWP No.960 of 2000 (O&M)` 2
and in substance seeks quashing of declaration dated
19.4.2001, Annexure P.12 filed by respondent No.3
mainly on the ground that the said declaration does
not include certain areas of the complex as ‘common
areas’ and thus deprives the ‘apartment owners’ of
their rights therein. Original petition sought direction
for filing declaration. The declaration in question
having been filed during the pendency of the writ
petition, amendment was made in the petition to
challenge the declaration. Amendment was allowed
vide order dated 26.11.2001 in C.M. No.30167 of
2001.
2. Broad averments in the petition are that
respondent No.3 was granted licence under the
provisions of the Haryana Development and
Regulation of Urban Areas Act, 1975 (1975 Act)
read with the Haryana Development and Regulation
of Urban Areas Rules, 1976 which lay down
specifications and Standards of development
CWP No.960 of 2000 (O&M)` 3
(External and Internal) which a colonizer must
adhere to in the construction, transfer and
maintenance of the colonies to be developed. The
Haryana Legislature enacted the Haryana Apartment
Ownership Act, 1983 (1983 Act) to provide for
ownership of individual apartments in a building and
to make such apartments heritable and transferable
property and matters connected thereto. Under the
said Act, an apartment owner acquires right of
‘undivided interest’ in common areas and facilities in
the percentage specified in the declaration. The 1983
Act was first notified in the year 1986 and again on
10.11.1997. Respondent No.3 filed declaration on
19.4.2001. The Silver oaks Society representing
apartment owners filed objections dated 2.7.2001,
Annexure P.14, inter-alia, pointing out that certain
community buildings and other areas were not
declared to be common areas in the declaration. This
was followed by representation dated 20.9.2001,
CWP No.960 of 2000 (O&M)` 4
Annexure P.16. The society was allowed to intervene
in the petition vide order dated 4.2.2002 and is
represented by same counsel who represents original
petitioners, who are some of the apartment owners.
3. Reply has been filed by the District Town
Planner on behalf of the State of Haryana and
Department of Town and Country Planning, inter-
alia, stating that representation of the petitioners
against the impugned Declaration was pending with
respondent No.2. It has been further stated that total
area of the licence given to respondent No.3 is
130.62 acres out of which 14.75 acres is for a group
housing and 115.87 acres for plotted colony.
Licences for development were initially given in the
years 1981-82 for two years under Rule 12(2) which
were renewed from time to time till completion of
development. In the agreement, executed in
compliance with conditions of licence, 1983 Act was
required to be complied. The 1983 Act was
CWP No.960 of 2000 (O&M)` 5
enforced vide notification dated 8.9.1986 which was
issued by Housing department but was rescinded on
24.10.1997 as concerned department to notify the
Act was Town Planning Department. A fresh
notification dated 10.11.1997 was issued by Town
and Country Planning department. For group
housing, plan was approved in the year 1982 wherein
apart from residential blocks, three shops, community
centres and two nursery schools were approved.
Thereafter, on 30.5.1990, condition was imposed by
the competent authority that colonizer will provide
EWS flats and service units to the extent of 10% of
main dwelling units. Accordingly, revised plan was
approved on 8.11.1990 in which residential blocks,
parking in basement, EWS flats and three shops were
approved. There was further revision for zoning and
building plans in the years 1992 and 1995. The
colonizer applied for completion certificate on
15.4.1996 for group housing scheme measuring
CWP No.960 of 2000 (O&M)` 6
14.75 acres. It is also mentioned that with reference
to various queries, the department issued clarification
on 15.12.1998 vide Annexure R3/1 which, inter-alia,
shows that the association is to be formed by
apartment owners and not by colonizer and also
clarifying areas included in “common areas”. Part of
completion certificate was given on 22.1.2001
subject to the condition of filing of deed of
Declaration under the Apartment Ownership Act,
1983 within 90 days. Accordingly, respondent No.3
filed the declaration on 19.4.2001. Against the deed
of Declaration, representation dated 10.8.2001 was
received from the petitioners and comments from
respondent No.3 were sought. The parties were given
hearing and the matter was under consideration.
4. Reply has also been filed by respondent
No.3, the colonizer, inter-alia, stating that the dispute
raised was a private dispute for which writ petition
was not maintainable. Challenge with regard to
CWP No.960 of 2000 (O&M)` 7
common areas specified in the declaration was a
disputed question of fact. The declaration was rightly
filed by the colonizer. Common areas and facilities
mentioned in section 3(f) of the 1983 Act are
governed by the declaration under section 6 thereof.
5. Vide order dated 4.2.2002, CM No.3795 of
2002, the Silver Oaks Society was given liberty to act
as intervener in the writ petition. The petitioners had
earlier filed complaint in the MRTP which was
withdrawn, as mentioned in order dated 5.9.2003, as
the petitioners were advised that the issue of validity
of the declaration could not be gone into in those
proceedings. The writ petition was admitted to D.B.
vide order dated 10.9.2003 and interim order of
status quo was granted with regard to the areas
claimed to be common in the writ petition. On
account of pendency of Civil Appeal No.550 of
2003 filed by respondent No.3 in the Hon’ble
Supreme Court, which arose out of order of this
CWP No.960 of 2000 (O&M)` 8
Court dated 31.5.2001 in CWP No.6704 of 1999
(M/s DLF Universal Limited v. Director Town
and Country Planning), upholding notification of
the State Government dated 5.5.1990 debarring
respondent No.3 from collecting maintenance
charges for a period of five years, certain paras in
the writ petition were allowed to be deleted vide
order dated 17.1.2008 read with order dated
1.11.2007. Complaint is also said to be pending
before the National Commission under section 21 of
the Consumer Protection Act, 1986 filed by Silver
Oaks Society, inter-alia, seeking direction for
handing over common areas and facilities in 14.75
acres complex and to pay compensation. Learned
counsel for the petitioners, however, states that relief
sought before the National Commission will be
pursued only for compensation.
6. We have heard learned counsel for the
parties and perused the record.
CWP No.960 of 2000 (O&M)` 9
7. Contention raised on behalf of the
petitioners mainly is for quashing of the declaration
on the ground that the same did not conform to the
mandate of 1983 Act in so far as it excludes common
areas and facilities existing in the Group Housing
Complex and thereby continuing claim of ownership
rights by respondent No.3 and denying the rights of
apartment owners. To substantiate this submission,
reference has been made to provisions of 1983 Act,
as amended by 2002 Act, the 1975 Act and Rules and
conditions of licence. Learned counsel for the
petitioners refers to averments in para 31(f) of the
petition which is as under:-
“31.(f) That the above stated common
areas and facilities have been fully paid
for by the apartment owners as under:-
i) It is clearly defined in sale
deeds Annexure P.18, wherein,
it is stated “the above sale
price is inclusive of common
services, including land for
CWP No.960 of 2000 (O&M)` 10common use in the said plot of
land” which is also defined as
14.75 acres;
ii) It is further defined in the
terms of Group Housing
scheme (Annexure P.17)
wherein the external
development charges (EDC)
inter alia includes for schools,
community centre, swimming
pool etc.;
iii) The respondent is also under
contractual obligation with the
State Government to construct
in Silver Oaks, a primary-cum-
nursery school community
building/dispensary and first
aid centre at its own cost:
iv) Further, it has been also clearly
ruled by the competent
authority i.e. the Director,
Town and Country Planning
vide his Memo No.STP
(Enf.1-98), 1367 dated
15.12.1998 (Annexure P.19)
CWP No.960 of 2000 (O&M)` 11that convenient Shopping
centre, parking slots,
community centre, schools,
health centre etc., are common
areas and facilities meant for
apartment owners for
particular Group Housing
Scheme.
From the above, it is more than amply
clear that the above common areas and
facilities have been more than fully paid
and they cannot be segregated from the
main dwelling units as indicated by
respondent No.3 in the unlawful
declaration.”
Reply of respondent No.3 to the above para is as
under:-
“That in reply to para 31(f) it is
stated that the averments made therein
clearly reflect the greed of the
petitioners and is a blackmailing effort.
The implication of the sub para under
CWP No.960 of 2000 (O&M)` 12reply is that the apartment owners have a
share in the entire 14.75 acres, which is
totally far-fetched in view of Clauses 1,
2(a), 2(b), 3(a) and 3(b) of the
Apartment buyer’s Agreement
(Annexure R3/2) reproduced in para 8
above. Terms of Sale Deed cannot be
torn out of context and have to be read
as a whole harmoniously to know the
subject matter of conveyance. The
declaration filed by the
owner/respondent No.3 correctly sets
out the common areas and facilities and
the percentage of undivided interest of
each apartment owner in such common
areas and facilities. The averments made
in the sub para under reply are not even
worthy of countenance.”
8. Apart from the above, learned counsel for
the petitioners submitted that the scheme of the Act is
to recognise ownership of apartment owners in
apartments as defined in Section 3(b) read with
Section 5 and their interest in limited common areas
CWP No.960 of 2000 (O&M)` 13
and facilities as defined under Section 3(l) and
common areas and facilities as defined under section
3(f) read with Section 6 of the 1983 Act. Though,
the apartment owners are entitled to undivided
interest in common areas and facilities in percentage
expressed in the declaration, the declaration to be
made by the colonizer cannot classify common areas
as ‘apartment’ and thereby claim ownership on such
areas and deny statutory rights of apartment owners.
The area has either to belong to apartment owners
individually or to limited number of apartment
owners to the exclusion of others or has to be
common areas and facilities which have to be vested
in the apartment owners to be used for their benefit.
According to the petitioners, Group Housing Colony
Scheme Annexure P.17 was framed by the State
Government, which contemplated signing of
agreement LC-IVA, which was in fact signed, a copy
of which is Annexure P.1.
CWP No.960 of 2000 (O&M)` 14
9. As per declaration, Annexure P.12, the
‘property’ consists of :-
“i) 14 Main Apartment building
blocks.
ii)Three Underground parking
basements.
iii) One EWS building.
iv) One Community Building.
v) Two Nursery Schools.
vi) One Shopping Block.
In all there are 749 main Dwelling
Units, 150 Dwelling Units for
Economically Weaker Section, 554
covered parking in basements and 14
Garages. The open areas have been
landscaped with greenery, play areas,
driveways, walkways and open surface
parking.”
10. Objections of the petitioners, Annexures
P.14 and P.15, inter-alia, are:-
“g) Common Areas and facilities
(Page 21): This should also include
shops, all parking areas, community
CWP No.960 of 2000 (O&M)` 15centre, Nursery Schools, Swimming
Pool and related common facilities.
Status of EWS units to be confirmed
later. All common areas and facilities
other than ‘Dwelling Units’ should be
included as defined in section (f) 3 of
the Act.”
(From Annexure
P.14).
“i) Common areas and facilities are
clearly defined in section 3(f) of the Act
and further enumerated as part of
External Development Charges (EDC)
in the defined terms of Haryana Group
Housing Scheme. In the sweep of
definitions they include shops, all
parkings, Nursery schools and the
Community Centres. These common
areas and facilities are indivisible and
cannot be sold/divorced from the
apartments under the provisions of
Section 3(b) and section 6 of the Act.
Builder has no discretion whatsoever to
retain any such area or any facility,
CWP No.960 of 2000 (O&M)` 16which is for common use for himself
which is clear breach of the provisions
and the very spirit of the Act. Any such
step would only lead to illegal action.”
(From Annexure
P.15).
11. Further grievance is that though the
petitioners and other apartment owners have
purchased the apartments, they have not been
enrolled as members of the condominium association
only on the ground that they have not signed the
apartment deed. The reason for not signing apartment
deed is dispute raised in this petition relating to
common areas and facilities. The petitioners have
been wrongfully denied membership of the
condominium association.
12. Stand on behalf of the State is that while
there is no dispute about common areas covered by
Clauses (1) to (6) of Section 3(f), dispute arises with
regard to interpretation of Clause (7) and the disputed
CWP No.960 of 2000 (O&M)` 17
items may or may not fall under the said clause.
Since the matter is pending before the competent
authority, the competent authority may be required to
take a decision or the Court may clarify the position.
13. Stand of respondent No.3 is that declaration
deed dated 19.4.2001 was in consonance with the
statutory provisions. The shops, the community
centres, the school, building etc. were not part of
common areas and facilities. It was for the colonizer
to declare the said areas as common areas or to sell
the same separately. Reliance has been placed on
judgment of the Hon’ble Supreme Court in DLF
Qutab Enclave Complex Educational Charitable
Trust v. State of Haryana and others, (2003) 5
SCC 622. The colonizer was not under any
obligation either under the conditions of licence
under the 1975 Act or under the provisions of the
1983 Act to declare the said areas to be common
areas and facilities. The Group Housing norms
CWP No.960 of 2000 (O&M)` 18
Annexure P.17 relied upon by the petitioners were
never made applicable. The requirement of signing
LC-IVA was incorporated for the first time in rules
on 29.1.2007 by way of amendment of Rule 11(1)(h).
The same could not apply earlier on the basis of
group housing norms. Respondent No.3 developed
an integrated colony of which group housing scheme
measuring 14.75 acres was a part and thus, the
apartment owners could not claim any exclusive right
to the said areas. In any case, there being disputed
questions, the matter should not be gone into in writ
jurisdiction.
14. From the pleadings and submissions, main
question for consideration is interpretation of Clause
7 of section 3(f) read with Section 6 of the Act. The
areas claimed by the petitioners to be covered by
Clause (7) are mainly two primary schools, shops and
community centre about which there is dispute. The
petitioners have also raised dispute regarding
CWP No.960 of 2000 (O&M)` 19
underground parking and premises allotted to persons
employed for management of apartments and giving
of voting rights to such persons.
15. The petitioners have also claimed that they
have not been enrolled as members of condominium
association which has certain statutory rights on the
ground that they did not sign the apartment deeds and
did not accept the declaration. On the other hand, the
stand of respondent No.3 is that declaration filed
under section 11 was conclusive as to which area was
common area and there was no forum to question
such a declaration. Disputed questions being
involved, this Court should not go into the question.
Only remedy of the petitioners may be to file a suit.
16. The questions involved can, thus, be
formulated as under:-
i) Whether declaration filed by respondent
No.3 under section 11 was conclusive
or could be questioned?
CWP No.960 of 2000 (O&M)` 20
ii) Whether the area of Primary Schools,
shops and community centre could be
treated as common area?
iii) Whether other claims raised by the
petitioners in their objections
Annexures P.14 and P.15 could be
accepted?
iv) Whether apart from civil court, there
was any other forum at which the said
declaration could be examined?
v) Whether on account of disputed
questions, this Court could not go into
the questions?
17. It will be appropriate to refer to the relevant
statutory provisions dealing with the subject.
“1983 Act
“2. Application of Act – The provisions of
this Act shall apply to every apartment
lawfully constructed for residential
purposes, integrated commercial complexes,
CWP No.960 of 2000 (O&M)` 21flatted factories, Information Technology
Industrial Units, Cyber park and Cyber City
for the purpose of transfer of ownership of
an individual apartment in a building
whether constructed before or after the
commencement of this Act. In case of
licences issued under the Haryana
Development and Regulation of Urban
Areas Act, 1975(8 of 1975), the owner of
such property/building shall duly execute
and get registered a declaration within a
period of ninety days after obtaining part
completion/completion certificate under the
rules framed under the Haryana
Development and Regulation of Urban
Areas Act, 1975(8 of 1975) or occupation
certificate under the rules framed under the
Punjab Scheduled Roads and Controlled
Areas Restriction of Unregulated
Development Act, 1963(41 of 1963),
whichever is earlier. In case of
property/building falling in the area
developed by the Haryana Urban
Development Authority, the owner of such
property/building shall duly execute and get
CWP No.960 of 2000 (O&M)` 22registered a declaration within a period of
ninety days after obtaining occupation
certificate of the building under the
regulations framed under the Haryana Urban
Development Authority Act, 1977 (13 of
1977). In case of property/building where
the owner has already obtained part
completion/completion certificate or
occupation certificate under the rules and
regulations framed under the said Acts, the
period of ninety days shall take effect from
the commencement of this Act.
Explanation – for the purpose of this section
“Information Technology Industrial Units”,
“Cyber park” and “Cyber City” shall have
the same meaning as assigned to them in the
Zoning Regulations of Development Plans
of various cities published under section 5
of the Punjab Scheduled Roads and
Controlled Areas Restrictions of
Unregulated Development Act, 1963 (41 of
1963).
3. In this Act, unless the context otherwise
requires:-
CWP No.960 of 2000 (O&M)` 23
a) “Apartment” means part of the property
intended for any type of independent use,
including building having one or more
rooms with enclosed spaces located on one
or more floors or any part or parts thereof,
to be used for residence, office or for
practicing any profession or for carrying on
any occupation, trade, business or
manufacturing or other uses relating to
information technology or for such other
type of independent use as may be
prescribed, with a direct exit to the public
street, road or highway or to a common area
leading to such street, road or highway and
includes any garage or room (whether or
not adjacent to the building in which such
apartment is located) provided by the
colonizer/owner of such property for use by
the owner of such apartment for parking
any vehicle or for the residence of any
person employed in such apartment, as the
case may be.
Explanation-For the purpose of this clause
as “colonizer” shall have the same meaning
assigned under the Haryana Development
CWP No.960 of 2000 (O&M)` 24and Regulation of Urban Areas Act, 1975
(8 of 1975);]
b) “apartment owner” means the person or
persons owning an apartment and undivided
interest in the common areas and facilities
in the percentage specified and established
in the declaration;
xx xx xxx xxx
d) “association of apartment owners”
means all the apartment owners acting as a
group in accordance with the bye-laws and
the declaration;
xx xxx xxxx xx
f) “common areas and facilities” unless
otherwise provided in the declaration or
lawful amendments thereto, means –
1) the land on which the building located;
2) the foundations, columns, girders, beams,
supports, main walls, roofs, halls, corridors,
lobbies, stairs, stair ways, fire escapes and
entrances and exits of the building;
3) the basements, cellars, yards, gardens,
parking area and storage spaces;
CWP No.960 of 2000 (O&M)` 25
4) the premises for the lodging of janitors or
persons employed for the management of
the property;
5) installation of central services such as
power, light, gas, hot and cold water,
heating refrigerations, air conditioning and
incinerating;
6) the elevators, tanks, pumps, motors, fans,
compressors, ducts and in general all
apparatus and installations existing for
common use;
7) such community and commercial
facilities as may be provided for in the
declaration; and
8) all other parts of the property necessary
or convenient to its existing maintenance
and safety or normally in common use.
Xx xxx x xxx xxxxxx
i) “competent authority” means Chief
Administrator, Haryana Urban development
Authority in respect of the area developed
by the said Authority constituted under sub-
section (1) of Section 3 of the Haryana
Urban development Authority Act, 1977
(13 of 1977) till maintenance of that area
CWP No.960 of 2000 (O&M)` 26remains with the said authority, Director,
Urban Development Department, Haryana,
in respect of the other area falling within the
municipal limits and Director, Town and
Country Planning Department, Haryana, in
respect of the other area falling outside the
municipal limits and includes a person for
the time being appointed by State
Government, by the notification, to exercise
and perform all or any of the powers and
functions of the competent authority under
this Act and the rules made thereunder;
j) “declaration” means the instrument to be
executed and got registered in the
prescribed form and includes the amended
declaration;
xx xxx x xxxxxxx
l) “limited common areas and facilities”
means those common areas and facilities
designated in the declaration and reserved
for use of certain apartment or apartments to
the exclusion of other apartments;
xx xxx x xxxxxx xxx
p) "property" means the land, the
buildings, all improvements and structures
CWP No.960 of 2000 (O&M)` 27thereon, owned in free hold or held on lease
or as occupant under any law relating to
land revenue and all easements, rights and
appurtenances belonging thereto and all
articles of personal property intended for
use in connection therewith.”
Xx xxx xxxx xx
5.(1) Ownership of apartments : Each
apartment owner shall be entitled to the
exclusive ownership and possession of his
apartment in accordance with the
declaration.
(2) Each apartment owner shall execute a
deed of apartment in relation to his
apartment in the manner prescribed.
6.(1) Common areas and facilities – Each
apartment owner shall be entitled to an
undivided interest in the common areas and
facilities in the percentage expressed in the
declaration. Such percentage shall be
computed by taking as a basis the value of
the apartments in relation to the value of the
property; and such percentage shall reflect
the limited common areas and facilities.
CWP No.960 of 2000 (O&M)` 28
2) The percentage of the undivided interest
of each apartment owner in the common
areas and facilities as expressed in the
declaration shall have a permanent character
and shall not be altered without the consent
of all the apartment owners and expressed
in an amended declaration duly executed
and registered as provided in this Act. The
percentage of the undivided interest in the
common area and facilities shall not be
separated from the apartment to which it
appertains and shall be deemed to be
conveyed or encumbered with the apartment
even though such interest is not expressly
mentioned in the conveyance or other
instrument.
3) The common areas and facilities shall
remain undivided and no apartment owner
or any other person shall bring any action
for partition or division of any part thereof
unless the property has been removed from
the provisions of this Act as provided in
sections 14 and 22. Any covenant to the
contrary shall be null and void.
CWP No.960 of 2000 (O&M)` 29
4) Each apartment owner may use the
common areas and facilities in accordance
with the purpose for which they are
intended without hindering or encroaching
upon the lawful rights of the other
apartment owners.
5) The necessary work of maintenance,
repair and replacement of the common areas
and facilities and the making of any
additions or improvements thereto shall be
carried out as provided herein and in the
bye-laws.
6) The association of apartment owners
shall have the irrevocable right, to be
exercised by the Manager or Board of
Managers thereof, to have access to each
apartment from time to time during
reasonable hours as may be necessary for
the maintenance, repair and replacement of
any of the common areas and facilities
therein or accessible there from or for
making emergency repairs therein necessary
to prevent damage to the common areas and
facilities or to another apartment or
apartments.
CWP No.960 of 2000 (O&M)` 30
Xx xxxx xxxxx
10. Common profits and expenses: The
common profits of the property shall be
distributed among and the common
expenses shall be charged to, the apartment
owners according to the percentage of the
undivided interest in the common area and
facilities.
11. Contents of declaration: 1) The
declaration shall contain the following
particulars, namely :-
a) description of land on which the building
and improvements are to be located and
whether the land is freehold or leasehold;
b) description of the building stating the
number of storeys and basement, the
number of apartments and the principal
materials of which it is or is to be
constructed;
c) the apartment number of each apartment
and a statement of its location, approximate
area, number of rooms and immediate
common area to which it has access and any
other data necessary for its proper
identification;
CWP No.960 of 2000 (O&M)` 31
d) description of the limited common area
and facilities;
e) description of the limited common areas
and facilities, if any, stating to which
apartments their use is reserved;
f) value of the property and of each
apartment and the percentage of undivided
interest in the common areas and facilities
appertaining to each apartment and its
owner for all purposes, including voting,
and a statement that the apartment and such
percentage of undivided interest are not
encumbered in any manner whatsoever or
not on the date of the declaration;
g) statement of the purposes for which the
building and each of the apartments are
intended and restricted as to use;
h) the name of a person to receive service of
process in the cases hereinafter provided,
together with the residence or place of
business of such persons which shall be
within the city, town or village in which the
building is located;
i) provisions as to the percentage of votes
by the apartment owners which shall be
CWP No.960 of 2000 (O&M)` 32determinative of whether to rebuild, repair,
restore or sell the property in the event of
damage or destruction of all or part of the
property;
j) any other details in connection with the
property which the person executing the
declaration may deem desirable to set forth
consistent with this Act; and
k) the method by which the declaration may
be amended consistent with the provisions
of this Act.
2) A true copy of each of the declaration
and byelaws and all amendments to the
declaration or bye-laws shall be filed in the
office of the competent authority.
24A. Penalties.- Any owner of
property/building, who does not file
declaration within the period specified
under section 2, shall be punishable with
imprisonment of either description for a
term which may extend to three years and
shall also be liable to a fine of not less than
Rs.50,000 and Rs.10,000 for each day of
continuing offence.
CWP No.960 of 2000 (O&M)` 33
24B. Sanction of prosecution- No
prosecution of any offence punishable
under this Act, shall be instituted except
with the previous sanction of the competent
authority or any officer authorized in
writing by him in this behalf.
24C. Composition of Offence – (1) The
Competent Authority or any person
authorized by him by general or special
order made in this behalf, may either before
or after the institution of the prosecution
compound any offence made punishable by
or under this Act.
2) Where an offence has been compounded
the offender, if in custody, shall be released
and no further proceedings shall be taken
against him in respect of the offence
compounded.
1975 Act
2. In this Act, unless the context otherwise
requires –
xxx xxxxx xxxx
hh) “group housing” means a building
designed and developed in the form of flats
CWP No.960 of 2000 (O&M)` 34for residential purpose or any ancillary or
appurtenant building including community
facilities, public amenities and public utility
as may be prescribed.
Xxx xxxx x xxxxx
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 and
conversion charges as may be prescribed.
The application shall be accompanied by an
income-tax clearance certificate and
conversion charges:
xx xxx xxxx xxx
(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
CWP No.960 of 2000 (O&M)` 35industrial purposes and a bank guarantee
equal to thirty seven and a half percentum 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 (iii) xx xxx xxx xxxx
(iv) to construct at his own cost, or get
constructed by any 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 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
including a local authority on such terms
and conditions as it may deem fit.
Provided that in the licenced colony
permitted as a special project by the
Government, the license shall be valid for a
maximum period of five years and shall be
CWP No.960 of 2000 (O&M)` 36renewable for a period as decided by the
Government.
Xx xxx xxxx xxx
8. Cancellation of licence – (1) A licence
granted under this Act, shall be liable to be
cancelled by the Director if the colonizer
contravenes any of the conditions of the
licence or the provisions of the Act or the
rules made thereunder; 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 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 shall not exceed the amount
the colonizer has actually recovered from
the plot holders less the amount actually
spent on such developments works and that
of the plot holders shall not exceed the
CWP No.960 of 2000 (O&M)` 37amount which they would have to pay to the
colonizer towards the expenses of the said
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 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 transfer the possession of and the title to
the land to the plot holders within a
specified time, authorise the colonizer by an
order to receive the balance amount, if any,
due from the plot holders, after adjustment
of amount which may have been recovered
by the Director towards the cost of the
development works and also transfer the
possession of or the title to the land to the
plot holder within aforesaid time. If the
colonizer fails to do so, the Director shall on
CWP No.960 of 2000 (O&M)` 38behalf of the colonizer transfer the
possession of and the title to the land to the
plot holders on receipt of the amount which
was due from them.
5) After meeting the expenses on
development works under sub section (2),
the balance amount shall be payable to the
colonizer.
The Haryana Development and
Regualtion of Urban Areas Rules, 1976
Rule 11. Conditions required to be fulfilled
by applicant – (1) The applicant shall –
Xxx xxxxxxx xxxx
e) undertake to construct at his own cost or
get 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 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
CWP No.960 of 2000 (O&M)` 39including a local authority on such terms
and conditions as it may deem fit; and”
18. It is clear from the scheme of the Act as
reflected in sections 5, 6 and 11 read with clauses (a),
(f), (l) and (p) of Section 3 of the 1983 Act that the
declaration must categorise the whole ‘property’ into
‘apartments’, ‘common areas and facilities’ and
‘limited common areas and facilities’. The definition
of word “apartment” initially was limited to part of
the building used for residential purposes only but in
2002 amendment, the same has been expanded to
include other purposes. It has been explained on
behalf of the petitioners that the reason for expanding
the definition is that the Act itself was initially
applicable only to residential buildings but has been
later extended to cover other buildings. The
definition has to be read in the context of nature of
building for which licence was given under the 1975
Act. In the context of the present complex, the
CWP No.960 of 2000 (O&M)` 40
licence was for residential purpose and the definition
of “apartment” referred to residential areas.
Commercial areas or community centres or other
buildings which were not meant for residential
purpose could not be covered by definition of
“apartment” and has to be covered by the definition
of “limited areas and facilities” or “common areas
and facilities”.
19. We are of the view that the declaration must
categorise the entire property into either apartments
or limited areas and facilities or common areas and
facilities. The declaration under section 11 may
define rights inter se. Common areas and facilities
normally in common use and not covered by the
definition of ‘apartment’ had to be covered by either
‘common areas and facilities’ or by ‘limited areas
and facilities’. In the present case, there are certain
areas which may be meant for shared use but have
not been so declared. The competent authority before
CWP No.960 of 2000 (O&M)` 41
whom the declaration was filed is entitled to go into
the rival contentions and decide as to whether the
declaration has included some areas as ‘apartments’
even though such areas are common areas. Under
Section 24B, the competent authority has incidental
power to decide these questions when it has power to
decide whether or not to grant sanction for
prosecution for violation of provisions requiring
filing of correct declaration. Such power is also
referable to Section 11(2) of the Act. This being the
position, the competent authority having not so far
taken any decision in the matter, it may take a
decision after hearing the parties in accordance with
law.
20. As regards judgment of the Hon’ble
Supreme Court in DLF Qutab Enclave Complex
(supra), holding that community buildings etc.
covered by section 3(3)(a)(iv) could be transferred by
the colonizer and under the licence, the obligation of
CWP No.960 of 2000 (O&M)` 42
the licensee was only to construct the said buildings
and not to hand it over to the Government, the same
will not apply for interpretation of provisions of
Sections 5, 6 and 11 read with Clauses (a), (f) and (l).
The said question was not before the Hon’ble
Supreme Court.
21. In view of shortage of land in urban areas,
concept of apartments has been evolved. Town
Planning laws require development of apartments in
accordance with a plan and the apartment laws apart
from making apartments heritable and transferable,
provide safeguards for the apartment owners for their
shared use of common area. If shared use of common
areas is not allowed, the concept of apartments may
not be workable as persons living on different floors
require certain services in the complex itself.
Purchasers of apartments are also attracted by the
services available in a complex and are directly or
indirectly made to pay for such services. It is not the
CWP No.960 of 2000 (O&M)` 43
intention of the legislature that the developer assumes
absolute power of declaring or not declaring areas,
normally in common use, to be common areas.
Section 11, which deals with contents of declaration,
cannot be read as giving absolute power to the
developer to exclude common areas from the said
concept. To advance the social objective for which
the law is enacted, the competent authority before
which declaration is filed must be held to have power
to consider objections of apartment owners as to
whether particular area, which is normally in
common use, could be described otherwise.
Requirement of making declaration implies that the
declaration must be consistent with the spirit of the
Act. In the course of exercising power of cancellation
of licence under Section 8 of the 1975 Act or in the
course of receiving declaration under section 11(2) of
the 1983 Act or in the course of considering grant of
sanction for prosecution under section 24B of the
CWP No.960 of 2000 (O&M)` 44
1983 Act, the competent authority is entitled to go
into the objections of the apartment owners.
Declaration made by the developer, if objected to by
apartment owners, cannot be accepted as conclusive.
We are, thus, of the view that the apartment owners
are entitled to object to the contents of the
declaration. As already noticed above, the grievance
in the writ petition originally filed was that the
declaration was not being filed. During pendency of
the petition, declaration was filed, which has been
challenged as not conforming to the statutory
provisions and spirit of the 1983 Act. Stand of the
competent authority is that though objections have
been received from the petitioners, the same have yet
to be decided. The competent authority must decide
the objections within reasonable time. Such authority
must be guided by the provisions of the Act as well
as the objects and spirit thereof.
CWP No.960 of 2000 (O&M)` 45
22. It is not necessary for us at this stage to go
into any disputed question except to hold that the
declaration by itself cannot be treated as conclusive
and competent authority is not only entitled to but is
under obligation to take decision on objections of the
apartment owners. The competent authority must
evolve a mechanism for deciding such issues within
reasonable time.
23. One more issue which has been raised is of
allowing the apartment owners who have purchased
apartments as members of condominium association
if they have not been so far been allowed to join the
association on the ground that they have raised
objections to the declaration and on that ground not
signed the apartment deed. Pending decision of the
matter, they be allowed to join the association and
the elections may be conducted under the supervision
of a representative of the competent authority within
two months from the date of receipt of a copy of this
CWP No.960 of 2000 (O&M)` 46
order in accordance with law. After elections take
place, there will be only one association.
24. Accordingly, the questions formulated in
para 16 are answered by holding that declaration
filed by respondent No.3 is not conclusive and could
be questioned by apartment owners. The question
whether area of Primary Schools, shops or
community centre are common areas or any other
objections of the petitioners, could be decided by the
competent authority having regard to the provisions,
objects and spirit of the Act. The competent authority
could decide such questions apart from the
jurisdiction of the civil court.
25. We sum up our conclusions as under:-
1. Filing of declaration under section 11
by developer of apartments is mandatory.
2. Apartment owners are entitled to
undivided interest in common areas and
facilities under section 6 of the 1983 Act
and, thus, are vitally affected if common
CWP No.960 of 2000 (O&M)` 47area in which apartment owners are
entitled to undivided interest is not
declared to be common area. They can,
accordingly, file their objections before
the “competent authority”.
3. The “competent authority” defined
under section 3(i) of the 1983 Act is
under obligation to decide objections of
the apartment owners to the declaration
filed by the developer.
4. The competent authority is to be
guided by provisions, objects and spirit of
the Act to decide whether particular area
is common area or not.
5. Apartment owners are entitled to be
enrolled as members of the condominium
association.
26. Accordingly, we direct that the competent
authority may take its decision on objections of the
petitioners within six months from the date of receipt
of a copy of this order. As already observed in para
CWP No.960 of 2000 (O&M)` 48
23 above, the petitioners will be entitled to join
condominium association subject to dispute raised by
them as to contents of common area being
decided. Elections may be conducted under
supervision of representative of
competent authority within two months from the date
of receipt of a copy of this order, in accordance with
law.
27. The parties may appear before the
competent authority for further proceedings on
October 5, 2009. Status quo granted by this Court on
10.9.2003 will continue till the competent authority
takes its decision.
28. The writ petition is disposed of accordingly.
(Adarsh Kumar Goel)
Judge
September 9, 2009 (Daya Chaudhary)
'gs' Judge
